2011 marks the 50th anniversary of the first educational program on computer law, sponsored by the Joint Committee on Continuing Professional Education of the American Law Institute and the American Bar Association (ALI-ABA). Ten years later, at the 1971 annual conference of the ACM, Roy Freed and six colleagues founded the Computer Law Association (CLA), an international bar association (renamed later as the International Technology Law Association).    

Freed graduated from Yale Law School in 1940 and has practiced law for 46 years, first with the Department of Justice Antitrust Division, then with various private law firms. His article, “A Lawyer’s Guide through the Computer Maze,” published in the November 1960 issue of Practical Lawyer, was the first to alert the profession to the special issues created by computerization. Two years later, in “Legal Implications of Computer Use,” published in the “Unusual Applications” section of the December issue of the Communications of the ACM, Freed called for interdisciplinary cooperation between the fields of engineering and law and argued that “Despite the fact that such cooperation might stem initially largely from the existence of problems, it offers opportunities for constructive contributions in both areas and for intellectual satisfactions from exposure to the workings and subject content of the two quite different professional fields.”

Having been involved for so many years in both fields, Freed has recently applied his knowledge of law and computers to the study of the human mind. Last May, he talked at a joint meeting of the Boston Chapter of the IEEE Computer Society and the Greater Boston Chapter of the ACM about his life-long interest in the intellectual aspects of the law, specifically in regards to computers substituting for human activities and augmenting human intelligence.  The following interview is based on that lecture and subsequent discussions Freed and I had in person and over email.

What was your original idea of “computer law”?

In October 1960, I attended the first national conference on “law and electronics,” sponsored by UCLA.   The participants were all talking about how computers could help in law practice, but I started to think about the substantive legal issues that were raised by the availability and use of computers. Computer law, as I saw it, would cover the whole gamut of legal issues, in all situations where computers were involved. Because computers were used as tools by people and substituted for human activity, there were implications for intellectual property, tax issues, banking law, health law, tort law involving accidents and intentional harm, and so on.

The initial problem was introducing computer records into evidence in courts. Lawyers and judges had no idea of the nature of these records and how they were created and replicated. In many situations, lawyers were withdrawing cases because they did not know how to introduce computer records into evidence.

But at the time, most contributors to the field of law and computers were interested in applying computers to existing processes in the practice of law, specifically to the time-consuming task of searching through documents. I was interested in the intellectual aspects of the law, and they were purely mechanistic and interested in applying computers to assist lawyers in their work.

And your interest in the intellectual aspects of the law led eventually to an interest in the mind?

Fundamentally, laws should reflect facts. They should reflect the facts about what the mind is and how it operates.  Lawyers apply laws routinely to the diverse results of the mind’s operation, because legal issues arise from the mind’s thinking processes, emotional impacts, and the way it controls our bodies.  But I believe lawyers are doing that in terms of the prevailing anachronistic and limited assumptions of how the mind works. I simply seek to advance the discussion to a more fruitful factual arena.

We should update existing laws to reflect a more modern definition of the mind–and a more modern definition of information.

What’s wrong with how lawyers think about information? 

We don’t in the law have a good understanding of what is information. We have an implicit assumption that it’s something nebulous, certainly not physical. For example, when a person suffers emotional harm from another person, the affected person cannot collect damages unless he or she shows a physical impact on their body.  There has to be a tangible impact in order to claim emotional damage.  But I would argue that information physically alters the physical structure of the mind. Just because we cannot see it, doesn’t mean it’s not physical.

Information is physical. Information is physical energy signals that exist within a mind or a computer because the mind or the computer has been programmed or informed to accept them and to work on them.

You argue that both the mind and the computer process information in the form of signals. How does this shape your understanding of the mind?

When I was lecturing to lawyers and introducing them to computer law, I explained how computers work by drawing a rough analogy from the human body, particularly the mind as the counterpart of the computer’s basic central processing unit, with its arithmetic unit for performing logical operations and its control unit for prescribing their sequence, and the senses and extremities of the human body as counterpart to input-output devices. In trying to understand better the human mind, I reversed this analogy by using computers as rough models of the mind to infer the existence, and nature, of its equivalent features.

I came to the conclusion that the human mind, created by evolution, is a unique bio-psycho-social machine, processing coded discrete batches of electrochemical signals, and serving as the control center of the body. It follows internal instructions similar to computer programs, where our set of instincts is analogous to an operating system and our mental “application programs” are being constantly updated by inputs from the environment.

It ironically took the inventors of computers, who couldn’t yet understand their own minds, to enable people, inadvertently, to understand their own by drawing upon those machines as models. But while the human mind is roughly analogous to a computer, it is far superior. Creativity and free will distinguish the mind from computers.

Still, many people talk about the coming “singularity” and predict that computers will eventually be indistinguishable from the human mind or even superior to it.

The elusiveness of the actual working of the mind will prevent people from replicating it. Neuroscientists have influenced greatly my thinking about the mind with their discoveries of the presence of neuronal circuitry through which flow electrochemical signals. But neuroscientists know where–they can map the circuitry of the brain–but the how is going to remain a secret. We should be skeptical of the over-optimistic forecasts that computer engineers will be able to replicate the mind. Mere knowledge that those signals exist within the brain is far short of knowing their precise composition, and operation, in the thinking process.

Moreover, I would fear an inanimate machine with the power of the human mind, maybe without its ambiguities, but inevitably lacking its undoubtedly unique human values and judgment.

How do you think a more updated understanding of the mind and the nature of information could influence the practice of the law?

Take, for example, the term “work of authorship.” Section 101 of the Copyright Act enumerates eight categories, including literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, etc.

Instead, given my understanding of the nature of information, the term work of authorship can be generalized to include any specially-created thing when it is used to generate input signals to a mind or a computer. Of course, this general functional approach would require a public effectively educated regarding both the operation of the mind as a counterpart to computers and the fact that all information is physical as various types of coded batches of signals and of light and sound waves. This should replace the common assumption that information is intangible and immaterial.

Understanding the physical nature of information signals might also raise some novel corporate jurisdictional issues. For example, because they are physical and expressly identifiable, might a corporation’s transmitting them as advertising, communication, or the like into a jurisdiction in which it is not qualified to do business expose itself to legal and other requirements, just as if it had owned tangible property there?  This question could be pertinent to the current effort of various states to start collecting sales taxes on interstate deliveries of goods bought on-line.