Lawrence Lessig Shares His Thoughts on How Technology Will Create New Models for Privacy Regulation

By TAP Staff Blogger

Posted on December 30, 2015


Harvard law and ethics professor Lawrence Lessig shares his thoughts on how technology policy can and should evolve. In an interview with The Wall Street Journal, Professor Lessig discusses how privacy, surveillance, and international governance of the Internet and telecommunications networks will approach milestones in 2016, and he considers the implications for businesses and beyond.


Below are excerpts from “Lawrence Lessig: Technology Will Create New Models for Privacy Regulation.”


Regulating the Use of Personal Information

What is happening in the technology space will really change in the next three to five years. At MIT, the Enigma group basically makes it possible to use and maintain data without holding data. I am able to ping the server and it processes nothing beyond the data that I need to know … it will make sense for people to no longer hold data, accept in a very narrow sense.


If I ping a service, and it tells me someone is over 18, I don’t need to hold that fact. … The level of security I have to apply … [is not] the same [that] would be required if I was holding all of this data on my servers. This will radically change the burden of security that people will have.


You do see clear judgments about how certain kinds of DNA testing data is allowed to be used. Same thing with HIV testing. That is becoming the general form of privacy regulation, but only once we have a different infrastructure for accessing and using data. The endgame is one instance, it seems to me.


The Impact of the European Court Declaring the Safe Harbor Agreement as Invalid

…when push comes to shove, if certain services are not available to you because of privacy restrictions, you back out of restrictions. This is where I think new architecture is going to be so important.


Where I can protect privacy at very low cost, people will want to protect privacy. In the broadest sense, people want to do stuff with the Internet. If privacy weakens their ability to do stuff, people opt out of privacy protection.


When regulators think about regulating the Internet, they can regulate in the old-fashioned way, or in a way that is more aware of or responsive to the architecture or the tech infrastructure. With Safe Harbor, I think we will see how regulators think about how regulations are integrated into software code, think about code as law, not just what rules are uttered.


Net Neutrality and the Coming Challenges

My book, the “Future of Ideas, 2001,” … lays out the basic structure of thinking about what became known as network neutrality. I think regulation should focus on the business model, and not technology.


I don’t think the law should say here is what services can do and not do, because the technology is so (fast-changing) the law could never catch up. But that (we want) to avoid are certain kinds of business models, a prison of bits, where services leverage control over access to content and profit from that control over content. You could achieve that by regulating the kinds of contracts these businesses engage in … you avoid these tying arrangements. What the Internet companies ought to think about is what is the cheapest, fastest way to provide Internet service, not is there a way I can get 10% of the latest HBO hit.


The platform of today is not the operating system. It is data. Data providers don’t necessarily have to be broken up, but you have got to understand the market’s externalities.


Read the full article from The Wall Street Journal: “Lawrence Lessig: Technology Will Create New Models for Privacy Regulation.”


Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School. Prior to rejoining the Harvard faculty, Lessig was a professor at Stanford Law School, where he founded the school’s Center for Internet and Society, and at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.


Professor Lessig’s current areas of interest are Constitutional Law and Institutional Ethics. He is the author of numerous books on technology, including Remix: Making Art and Commerce Thrive in a Hybrid Economy, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, The Future of Ideas: The Fate of the Commons in a Connected World, and Code: and Other Laws of Cyberspace.