From Preemption to Circumvention: If Technology Regulates, Why Do We Need Regulation (And Vice Versa)?

Privacy and Security, Networks, the Internet, and Cloud Computing and Internet

Article Snapshot

Author(s)

Helen Nissenbaum

Source

Berkeley Technology Law Journal, Vol. 26, No. 3, pp. 1367-1386, 2011

Summary

Explores how technologies and laws can be made to work together to influence and regulate the course of social change.

Policy Relevance

Regulators should consider legal recognition of the principle of “respect for expressive choice” in regard to user preferences online, and place restrictions on the length and obfuscatory language of online Terms of Service.

Main Points

  • As Langdon Winner observes, technological artifacts express different moral and political values depending on their design and use; for instance, web applications such as the author’s TrackMeNot and Adnostic have been designed explicitly with the expression of privacy as a moral and political value in mind, with privacy defined as contextual integrity (the flow of personal information that is consistent with context-specific informational norms).
     
  • Law, public policy, and technology, are all able to prescribe human behavior and thus express particular values; the relationship between these methods of prescription deserves further study, as technology’s influence on values has been studied only recently.
     
  • Both technologies and laws can act as barriers to particular forms of activity, but some of these barriers are accepted in social life while others are challenged. In Bryan Pfaffenberger’s terms, the “design constituency” of a particular new technology or law seeks to “regularize” it through making the law or technology an acceptable, or at least technically or legally insurmountable, barrier by defining away alternative technological or ethical approaches.
     
  • Digital regulatory regimes such as Digital Rights Management (DRM) systems or browser cookies were technologies that required their design constituencies to influence public discussions in order to be hospitable to particular political ends. Consequently, law and regulation practically and symbolically compliment a technical system in expressing particular values.
     
  • Legal recognition for the “respect for expressive choice” and mandated clarity for Terms of Service defining privacy online are two regulatory methods for promoting privacy as a value.

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