The COVID/AI Era of Law …

For five months now, the United States has been in lock-up.  One of the ugliest hashtags I have seen and heard used is #AloneTogether.  At first it reads like an oxymoron.  If we are alone, how can we be together.  It sounds like the status of the last few years of my first marriage.  Sharing space with an energy pulling against you is draining.

The COVID-19 pandemic may be casting a new meaning on that phrase.  If you have the misfortune of having to share more time in energy draining space with a spouse that you are considering divorcing, #AloneTogether may be the last rallying cry before calling a divorce attorney.

Technology may also impact how we view the phrase.  Zoom calls and TEAMS meetings are a growing part of the workplace lexicon.  The spaces that we enjoyed being alone in at home have become offices and digital conference rooms where everything from sales pitches to digital happy hours are taking place.

For the extra sensitive, walking down a sidewalk and observing people take the extra precaution of taking a wider berth around you while hindering their own breathing by wearing a mask can be disconcerting.  The slightest attempts at saying “hello” or “good morning” are increasingly avoided because of fear that the slightest exhale from a fellow human may lead to a 14-day quarantine or time in a hospital on a ventilator.

In theory, the state quasi-mandated environment of staying away from each other should result in a reduction in analog contacts as our world goes increasingly digital.  Hard for kids to get into school fights when kids are at home distance learning.  Tough to get in a shouting match with a restaurant cashier over an order when Uber Eats, Grub Hub, or Door Dash is picking up your food.

There will be controversies; they will continue.  We are humans, taking conflict to levels that exceed what other lifeforms endure.  Legal philosophy should have us asking “Why are we engaging?” or “What is engagement?”.  Society will have to come up with tweaks to the rules for human engagement in a digital age where a corona virus is forcing on a global scale the reconstruction of society.  Should judges have to consider new threshold principles before trying to apply statutes, laws, rules, code, from a pre-COVID, non-artificial intelligence world to an issue before them arising out of a digital environment?  Will we need a new definition for personal spaces? For zones of danger?

In the area of political law how we structure political engagement and eventually the rules for engagement are already taking on a new twist.  For example, the recent squabble in the United States over funding for the U.S. Postal Service appears to be a result of the controversy over the use of mail-in ballots and the possibility of mail fraud.  As I ponder these questions, I suspect that new legal principles will appear as COVID-19 continues to change how we address the question of whose rule should prevail during political conflict.

Rather than clearly promoting telehealth, Trump’s messaging yesterday was aimed at elderly voter fear.

President Donald Trump yesterday held a press briefing on the status of the United States’ efforts to control spread of COVID-19.  What gave me pause was the President’s cloudy description of advanced communications and the lost opportunity to promote broadband.  The President said this about technology and connecting people:

“Nursing homes in higher-risk areas will be receiving more funding.  This money can be used to address critical needs, including the hiring of additional staff, increasing testing, and providing technology support so residents can connect their families and they can connect to their families.  They are having a tremendous time.  They want to be with their loved ones.  They can’t do it, so what we’re doing is we’re working it so that we can connect — have them connect with their families if they’re not able to visit.”

According to the President, $5 billion would be allocated to nursing homes from the Department of Heath and Human Services provider relief fund.  Mr Trump’s statement implied that some of this funding would go toward connecting nursing home patients and their families.  But a review of HHS allocation targets did not identify any amounts going toward nursing homes for additional communications facilities.  The Administration’s signaling of this intent does not appear to be included in the actual allocation program.

Mr Trump may have had an eye on applying political messaging to secure votes from the elder population in general and the nursing home population in particular given controversy around a directive by Governor Andrew Cuomo, Democrat of New York, to not prohibit the placement of patients in nursing homes based solely on the possibility of having COVID-19.  Critics of the Governor’s actions have been quick to point out the risk to elderly non-infected nursing home residents.  Hours after Mr Trump’s remarks on the elderly and COVID-19, Senator Rand Paul, Republican of Kentucky, referred to Governor Cuomo’s decision to locate infected patients in nursing homes as a “disastrous decision” that amounted to an impeachable offense.

That an opportunity for promoting public policy, in this case broadband for telehealth, may have been lost due to prioritizing political messaging is unfortunate.  The loss could have been mitigated by using specific terminology and definitions in one or two sentences rather than using a broad term such as technology. It is another lesson to readers of and listeners to political messaging to remain aware of as much of the existing political environment when assessing the value of political statements.