Justin Key Canfil is a fifth-year doctoral student in Columbia’s Department of Political Science with a minor in international law. His dissertation explores the relationship between military technological change and arms control, focusing on patterns in Cold War discussions over new technologies. He received the 2019-20 PepsiCo Academic Year Fellowship from the Harriman Institute and a Fulbright award to conduct field research in Beijing.
I met with Justin at the Harriman Institute on March 19, 2019. What follows is an edited and condensed transrcipt of our interview.
Tell me about your background.
Prior to graduate school I was selected for a fellowship that placed me with a congresswoman, a member of the Subcommittee on Emerging Threats, Cybersecurity, and Science and Technology. This was 2010, and cybersecurity was becoming a hot topic. Cyber hadn’t gone totally mainstream yet, but it was a concern to people on the Hill and in the White House. Although I was at the lowest level, I was able to see how policymakers were thinking about emerging technologies—particularly how disruptive they were to shared understandings about what’s “wrong” and “right.” Because my parents are lawyers, I grew up exposed to legal thought. After the fellowship, the interest in tech and law really fused for me.
My dissertation is meant to explain norms development processes over emergent technologies, today—cyber, AI [artificial intelligence], space. Although all countries are affected, the U.S., Russia, and China are pivotal actors. Each country’s leadership has its own opinion about what it wants international rules to look like. To examine this, I’m going back in history to look at discussions over various breakthrough technologies, particularly in the context of U.S.-Soviet Cold War negotiations.
Can you give me an example?
Among a variety of other cases, I’m looking at the development of airspace law, followed by space law. Air law used to be just customary international law—”for whoever owns the soil, it is theirs up to Heaven and down to Hell.” Meaning, you own the air above the territories you control. Of course, this was largely theoretical since no one had the capacity to operate in the sky.
Then viable aircraft came into the picture and countries had to figure out how to adapt the law. Like lots of contentious technologies, it raised all sorts of questions. Should they adapt rules through written treaty law or new norms? Should they extend existing law? Is new law even needed at all? Eventually, states succeeded in negotiating a series of treaties. But then Sputnik changed everything again by opening access to space, and states had to go back to the drawing board. In most cases, negotiators were responding to a disruptive technology and had to scramble to come up with new regulatory rules.
Are lawmakers scrambling in the same way now?
History is useful for cross-comparison. But I’m not sure the results will be the same. We’ve known about cyber since the ‘80s and the Russian Federation was the first to broach the issue at the UN, in 1998, arguing that new rules were needed. Yet, 20 years later, the international community still hasn’t totally agreed on what those rules should be.
Moreover, I worry that states are now increasingly talking past one another rather than working on hammering out new agreements. After the difficulties faced at the UN Group of Global Experts in 2017, the focus has been on building “like-minded coalitions” rather than multilateral consensus. Of course, negotiators face incredible challenges—it took the international community about 15 years to even agree that existing law applies in cyberspace—so it’s important to acknowledge that reaching a consensus is much easier said than done.
What’s the biggest misconception about law and technology?
There’s a lot of emphasis by pundits on the fact that law always lags behind technology and that this poses a serious problem, because countries are using it as a loophole to violate agreements. In fact, what I’m finding through my research is that countries don’t always take advantage of these things the way we would expect them to.
There could be many explanations for this—the characteristics of a particular technology; the way that particular countries think about their legal traditions; the level of interest from civil society; or the way old laws are written. My goal in studying these relationships is to refine and test a generalizable theory about this.
Tell me about your minor in law.
One of the advantages of Columbia is that you can do a specialized minor. In my case it was law. I went through the international law sequence here, worked with law professors, and even had the chance to TA for a law class during the January term. It was a very interesting class, essentially mirroring some of the questions in my dissertation and applying them to the private sector—we looked at how companies behave (or should behave) when new technologies or new situations arise. Specifically, how should companies react when the law doesn’t provide guidance? Because you can’t fully anticipate technological change, it required a lot of forward-thinking.
I can’t help but think of quantum computing—if it’s as huge as some predict, it will certainly demand changes to our legal framework. What are your thoughts?
A lot of people think quantum is going to change everything (although there are some influential skeptics too). Despite everything that countries are trying to negotiate in AI and cyber right now, they may find that quantum changes their preferences for which legal or normative policies to adopt. But quantum is barely a reality yet. The proof of concept is there, but it hasn’t been scaled up so we don’t really know what the implications will be.
How, if at all, can law keep up with technology?
That’s one of my motivations for studying this in the international context. Keeping up requires a lot of technical knowledge; diplomats, decisionmakers, and lawyers need to keep up. It can involve a lot of political capital to get these things off the ground; it can be very time-consuming. These problems exist in domestic politics as well—with domestic drone law, for instance, which is a huge issue for the U.S., China, etc. If domestic systems struggle with it, these problems should be exacerbated in international relations where there is no supreme policymaking body to write, interpret, or execute new laws. It’s an opt-in system. You would expect that these legal-technological lag times would be biggest in international law. It’s a serious problem there. In uncertainty about the future, the best we can do is try to look forward and operate with end goals in mind, navigating change while keeping those end-goals in focus.
Are we headed for complete pandemonium?
If the predictions of these pundits were always true and countries were just using technologies as an excuse to go their own way and depart from compliance patterns, then there would be pandemonium because regulation can never hope to keep up. But actually, that’s not always the case. Sometimes rules are analogized; sometimes countries are reluctant to outright violate an existing rule, because they’re afraid of how other countries might be analogizing. So that’s kind of the puzzle that I hope to answer: Why don’t we always see pandemonium with these things?