The activities of attorneys and the activities of hackers are not as different as you might expect, if you define hackers as creative, unconventional problem solvers.
Each explores vast spaces of complicated systems, looking to see how they work, both in ways intended and unintended, and to see what they can be made to do.
In general, the law typically does not keep up with changes in society or technology. As a result, lawyers often must formulate new and innovative ways to address difficult legal problems by using and combining existing legal tools in new ways. For example, if there is a problem with a self-driving car that causes an accident, how can you assign responsibilities so that the right people will pay for the damage? How can you set up the law so such problems tend to be prevented or corrected rather than made worse?
Lawyers need to think outside the box, and you often see lawyers cobble together legal tools creatively to solve new problems or to approach a difficult problem in a new way.
Writing laws and agency rules has some uncanny similarities to coding and programming. A system of laws is called a “code.” The set of United States federal statutes is called the U.S. Code or U.S.C. The set of federal regulations is called the Code of Federal Regulations or the CFR. Codes also exist in the legal systems of the various states.
New laws passed by a legislature are codified into the code, which seems similar to software compiling.
Lawyers have to think several steps ahead. There is a special type of lawyer called a legislative counsel that has special expertise on how to devise language for legislators that will do what the legislators actually intend to do.
Like when writing code, a lot of the stuff is accumulated over time, and a little clause over here has a large effect, and often you need to trace back the impact of one new area on other areas. What is sometimes called “policy” in the legal world is similar to what a game designer does to ensure that a game runs smoothly, without glitches that would not make it fair or fun to play.
Under the law, there are different levels of operating systems: a Constitution (with the potential for amendments), statutes that must operate under the Constitution, and regulations developed by agencies to carry out the statutes. In the law, there are parallel operating systems in place at the local/county, state, and federal levels, with some interaction among the three levels. There are operating rules to ensure that for certain specified types of operations, one level of law overrides others, such as where federal law preempts state law.
As with writing computer code, it is hard to get the laws written so that they do what is wanted. The wording cannot be too specific or the law will restrict operating flexibility for the public or the government. Neither can the law be too loose, or the purpose of the law may be frustrated.
Attorneys who write laws must consider the secondary and tertiary implications of those laws, the unintended consequences, the definitions (which are really important), and those who will try to game the system.
And as with computer software, in the law, tiny changes, even as small as a comma, can have huge effects.
The American, system is based in the Anglo-American common law. What the common law does is start with some written laws, which then evolve over time as different situations arise and are tossed at them. So the law is not just the statutes, but is also the legal cases and disputes that interpret the legal codes. Legal cases execute the legal code with real-world variables and situations, and may also be considered a type of Monte Carlo simulation exercise but with real people and issues and money at stake.
Interpreting cases, such as is done by lawyers and ultimately by judges, can be considered a form of debugging exercise for the legal code.
There are also unanticipated outcomes from laws and legal cases. Appeals courts exist to provide a forum to correct erroneous decisions in the lower courts. The appeals court decisions are influential on the lower courts going forward. In fact, appeals court judges specialize in figuring out what will happen, not just in this particular case, but for all future cases if the law is interpreted in a particular way in the case before them.
There are backdoors in the legal system… many of them.
The law has equivalents to worms and viruses and Trojan horses.
Lobbyists make a career out of introducing language into the codes (laws) that has a favor-able impact on their clients. Is it surprising that legislative changes or amendments promoted by lobbyists are often disguised to appear as though they do something else? Very often, the actual impact of a legislative wording change may not be obvious. Frequently, in order to figure out the impact of a legislative change, you need to trace the effect through many different sections of the law.
Furthermore, much lawyering skills to persuade people on behalf of a client have similarities to aspects of social engineering.
Legal discovery (obtaining information during a case) can be considered to be like war dialing, probing, or pinging – or may resemble a systematic exploit.
Filing a case in court with a novel legal theory might be considered analogous to a zero-day exploit or a system probe.
Attorneys select a favorable court or venue to maximize their chances of success, in the same way that someone may select a particular system with favorable characteristics.
Agency regulatory activity, with its public input and deadlines and various interactions, might be regarded as a massive multiplayer game with rules.
According to a 2014 article in Law Practice Today, a number of lawyers regard themselves as legal hackers, and are dedicated to finding efficiencies, making law more accessible, improving the law for lawyers and their clients, and disrupting outdated models in the legal system. One of the earliest groups, the New York Legal Hackers began at a legal hackathon at the Brooklyn Law School in April 2012. Since then, a number of legal hacking groups and legal hackathons have become established in a variety of locations across the country.
It is important to remember that attorneys are sworn to uphold the Constitution and to work toward improvement of the legal system.
In sum, despite some differences, there are a lot of similarities and analogies. Attorneys can learn much from the hacking world, and vice versa.
Editor’s Note: This article republished with permission of the author and the first publisher, 2600.com – where the article appeared in AUTUMN 2018 pages 48-49.