Technology-neutral requirements are better – improves flexibility for compliance and ensures bad tech isn’t locked in
John H. Zacharia and Kari Kammel, 2020 - John H. Zacharia is former Assistant Deputy Chief for Litigation for the Computer Crime and Intellectual Property Section of the United States Department of Justice’s Criminal Division. Kari Kammel is the Assistant Director of Education and Outreach at the Center for AntiCounterfeiting and Product Protection at Michigan State University. “HOW CONGRESS PROPOSES TO PROTECT CONSUMERS FROM ONLINE COUNTERFEITS: The Good, the Bad, and the Ugly” September,
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Second, Congress should enact one comprehensive bill that is technology neutral. The dramatic growth of e-commerce and its nefarious uses has come upon the U.S. legal system quickly. With new legislation in the era of technology, thought and consideration needs to be given to whether it will be a valid useful legal framework five years from now, ten years from now, or twenty years from now. E-commerce and the surrounding technologies that are being used with it, such as artificial intelligence, are “law disruptive technologies”.142 Nevertheless, requiring e-commerce platforms to use “proactive technological measures” and other “technological measures” dependent on artificial intelligence makes little sense if the e-commerce platforms have a non-technological proactive measure that may be more effective in preventing the sale of counterfeits on their platforms. In the same vein, specifying use of a particular technology would be problematic if in five to ten years from now another more effective technology comes to market.