The Technology Canon

• Pages: 935-985
• Date: 01 April 2024
• Published date: 01 April 2024
• Author: Kyle J. Finnegan

NOTE

The Technology Canon

KYLE J. FINNEGAN*

Technology evolves quickly but statutes do not. Congress passed laws

that govern computer hacking, electronic surveillance, and intermediary

liability for online platforms at a time when most of its members did not

have access to the Internet. As these statutes remain frozen in time,

courts struggle to determine their meaning as applied to technology that

did not exist when they were enacted.

Traditional tools used by purposivists and textualists do not adequately

account for this disconnect. For purposivists, imagining what the legisla-

ture would have thought about something it could not conceive requires

an additional layer of hypothesis. Meanwhile, textualists’ reliance on or-

dinary meaning at the time of enactment is incomplete because contem-

poraneous meaning does not fully capture innovations that did not yet

exist. These methodological gaps expand judicial discretion, lead to

unpredictable results, and ultimately hinder innovation.

To address these practical and methodological problems, and recogniz-

ing the current importance of canons of construction, this Note proposes a

“technology canon”: Where a technology fairly falls within the scope of a

statute but is materially different from the state of the art at the time the

statute was enacted, the statute should be interpreted in light of the mis-

chief that it was enacted to address. Mischief exists outside of the legisla-

ture and can be identif‌ied from a variety of extra-legislative sources,

making it potentially more objective than legislative purpose or intent. It

asks not how the enacting legislature would have received a new technol-

ogy but what technological functions it chose to govern through its choice

of words. Mischief thus respects the primacy of the text while allowing the

interpreter to focus more on the function rather than the form of the tech-

nology being governed.

To illustrate the technology canon, this Note investigates the mischief

behind several important statutes governing technology, including the

Computer Fraud and Abuse Act, the Copyright Act, and Section 230 of

the Communications Decency Act.

* Georgetown University Law Center, J.D. 2023; Executive Editor, The Georgetown Law Journal,

Volume 111. © 2024, Kyle J. Finnegan. Thank you to the people who made this Note possible. Professor

Anita Krishnakumar gave structure and direction to a f‌leeting idea. Evan Chiacchiaro, Ava Kamb, Kachun

Leung, Samantha Purdy, Tate Rosenblatt, Tinesha Zandamela, and other members of The Georgetown Law

Journal provided valuable insight and expertise. The views expressed in this Note are mine and do not

necessarily represent the views of any past or present employer. All errors, likewise, are my own.

935

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 937

I. UNIQUE CHALLENGES OF TECHNOLOGY IN STATUTORY INTERPRETATION . . . 940

A. TECHNOLOGY EVOLVES FASTER THAN THE LAW . . . . . . . . . . . . . . . . 940

B. COURTS LACK TOOLS TO DEAL WITH TECHNOLOGICAL GROWTH . . . 943

II. THE INCOMPLETENESS OF TRADITIONAL INTERPRETIVE APPROACHES

AS APPLIED TO TECHNOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 947

A. PURPOSIVISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 948

1. Purposive Principles............. ................... 948

2. Purposivism Applied to Technology .................. 949

B. TEXTUALISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 950

1. Textualist Principles................................ 950

2. Textualism Applied to Technology ................... 952

a. ReDigi and the Copyright Act. . . . . . . . . . . . . . . . . 952

b. Van Buren and the CFAA . . . . . . . . . . . . . . . . . . . . 955

III. MISCHIEF AND THE TECHNOLOGY CANON . . . . . . . . . . . . . . . . . . . . . . . . . . 957

A. THE MISCHIEF RULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 957

1. The Idea of Mischief ............................... . 957

2. Mischief as a Textualist Tool ........................ 959

3. Applying Mischief ................................. 962

B. DEFINING THE TECHNOLOGY CANON . . . . . . . . . . . . . . . . . . . . . . . . . 964

1. First Requirement: New Technology ................. . 967

2. Second Requirement: Fairly Falling Within the Scope of

the Statute ........................................ . 968

IV. APPLYING THE TECHNOLOGY CANON. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 969

A. COMPUTER FRAUD AND ABUSE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . 969

B. COPYRIGHT ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 974

C. SECTION 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 979

936 THE GEORGETOWN LAW JOURNAL [Vol. 112:935

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984

INTRODUCTION

As technology evolves, it exposes gaps in existing law. The mid-1980s were a

pivotal time for technology law. The case of Captain Midnight is one early exam-

ple. Captain Midnight was upset that premium movie channels, such as HBO,

were cracking down on people who streamed the channels’ content without pay-

ing. For the f‌irst half of the 1980s, nonsubscribers could easily intercept the satel-

lite broadcast signals from premium channels because they were not encrypted. At

the beginning of 1986, HBO scrambled its satellite signals to encourage subscrip-

tions.

1

Bill McCloskey, Captain Midnight Arrested, FCC Says, AP NEWS ARCHIVE (July 22, 1986, 3:30

PM) [https://web.archive.org/web/20170921145108/http://www.apnewsarchive.com/1986/Captain-

Midnight-Arrested-FCC-Says/id-deb8acefb1bf49f38a3a9da149683c20]; see Zeus Brothers Entertainment,

Captain Midnight Broadcast Signal Intrusion Part 1, YOUTUBE, at 03:00 (Apr. 20, 2019), https://youtu.be/

YzcjyE0EPaU.

Showtime and The Movie Channel soon followed suit.

2

Then, on April 27,

HBO subscribers in the eastern United States received a surprise message during a

late-night movie.

3

David M. Ewalt, The Tale of Captain Midnight, TV Hacker and Folk Hero, FORBES (Mar. 18,

2013, 12:55 PM), https://www.forbes.com/sites/davidewalt/2013/03/18/the-tale-of-captain-midnight-tv-

hacker-and-folk-hero/.

“GOODEVENING HBO FROM CAPTAIN MIDNIGHT,”

read a color-barred screen. “$12.95/MONTH? NO WAY! [SHOWTIME/MOVIE

CHANNEL BEWARE!]”

4

See Captain Midnight HBO Broadcast Intrusion (HBO television broadcast Apr. 27, 1986)

[https://archive.org/details/CaptainMidnightHBO1986].

That night, Captain Midnight’s interruption showed the country that existing

laws were insuff‌icient to punish and deter similar exploits of evolving satellite

technology. In other words, Captain Midnight caused “mischief.” Despite being

“the most notorious pirate of the airwaves,”

5

‘Captain Midnight’ Unmasked, BROADCASTING, July 28, 1986, at 90, 90, https://worldradiohistory.

com/Archive-BC/BC-1986/BC-1986-07-28.pdf [https://perma.cc/V9ZK-AHWB].

he was charged only with the misde-

meanor of transmitting an interfering signal without a license—a statute that the

Justice Department was not even responsible for enforcing.

6

See id. Captain Midnight was charged under the Communications Act of 1934, which the Federal

Communications Commission enforces. See 47 U.S.C. § 301; The Communications Act of 1934, U.S.

DOJ: BUREAU OF JUST . ASSISTANCE, https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/

statutes/1288 [https://perma.cc/S29C-45CZ] (last visited Feb. 25, 2024).

In response, the

Federal Communications Commission issued regulations that led to a new com-

munications protocol for satellite television.

7

Congress enacted the sweeping

Electronic Communications Privacy Act of 1986 (ECPA), which in part made it a

felony to interfere with a communications satellite.

8

1.

2. McCloskey, supra note 1.

3.

4.

5.

6.

7. See 47 C.F.R. § 25.281 (2001); In re Implementation of Section 25.281(b) Transmitter

Identif‌ication Requirements for Video Uplink Transmissions, 32 FCC Rcd. 6233 (2017).

8. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 303(a), 100 Stat. 1848,

1872 (codif‌ied at 18 U.S.C. § 1367(a)).

2024] THE TECHNOLOGY CANON 937