New Technologies and Old Laws: Square Pegs in Round Holes

I sit in a lot of meetings where I people discuss how new health information and technology will fit into existing policy and law. Many of these discussions go over my head, as they are bogged down in minutiae of law and policy far beyond my ken. I have often assumed that these discussions are important, perhaps even necessary, as our system of law is built on precedent, reaching back into the past to inform the future.

And then I read something like this.

New President Barack Obama will have to give up his Blackberry. The entire White House Staff can’t Instant Message. Eight years ago, President Bush sent a message to 42 friends and relatives right before assuming office explaining that he had to give up email. I know what I will say to them if they ever try to come for my iPhone; it’s not fit for print and involves my cold, dead fingers.

Why? It has to do with something called the Presidential Records Act. It turns out that all of the documents that come into contact with a President and Presidency need to be preserved and one day made public. Don’t get me wrong, I understand the importance of such a law, and I am all in favor of it. But even that law recognized that there had to be exceptions. Presidents, and their staff, do need to keep some things private. Conversations aren’t all recorded; neither are telephone calls.

Personally, I hate to talk on the phone. So, given the chance, I will use email, text messaging, or even Instant Messaging to talk to friends and colleagues. For me, and many others, it’s faster, it’s easier, and it’s preferable. I can tell you that I would be much less productive professionally, and much less happy personally, if you told me I had to stop.

Here’s the problem. The Presidential Records Act was written in 1978. No Blackberries. No Instant Messaging. No email. It is simply ridiculous that President Obama can’t have a Blackberry and David Axelrod can’t Instant Message because of a law written thirty years ago. We shouldn’t have to figure out how to make these new technologies fit into law that couldn’t predict them. We need new law.

Which brings us back to health technology. Those old laws and old policies – they too were often written in a time when the issues and difficulties we face today were simply incomprehensible.

It may be just as unreasonable to think that we can use them to inform what we should do today. Sometimes, precedent isn’t enough.

We shouldn’t have to figure out how to make these new technologies fit into policies that couldn’t predict them. We need new policies.

Aaron E. Carroll