Reverse Engineering Informational Privacy Law

By Birnhack, Michael D. | Yale Journal of Law & Technology, Fall 2012 | Go to article overview

Reverse Engineering Informational Privacy Law


Birnhack, Michael D., Yale Journal of Law & Technology


TABLE OF CONTENTS  INTRODUCTION I. FRAMEWORK : LAW AND TECHNOLOGY II. LEGISLATIVE TECHNIQUES FOR A DIGITAL ENVIRONMENT   A. Technology-Neutral Legislation   B. Considerations and Justifications     1. Flexibility     2. Innovation     3. Harmonization   C. An Initial Typology     1. What does the law regulate? Ends--Means     2. How does the law treat technology? Promotion--Restriction     3. How does the law define the regulated technology?     Abstract--Concrete     4. Who regulates technology?   D. Interim Summary III. REVERSE ENGINEERING THE LAW IV. INFORMATIONAL PRIVACY   A. United States: Privacy and Private Information   B. The OECD and Data Protection in Europe     1. International Initiatives     2. Enter the European Union     3. The EU Directive: The Law Follows Personal Data     4. New Initiatives and Proposals V. REVERSE ENGINEERING THE DATA PROTECTION DIRECTIVE   A. The Directive and Technology   B. The Directive and Technology Neutrality     1. Personal Data     2. Processing of Personal Data     3. Personal Data Filing System--aka Database CONCLUSION 

INTRODUCTION

This article explores a paradox about technology-related legislation. On the one hand, legislators often declare that their motivation in enacting a new law is driven by the implications of new technologies. Indeed, laws do not regulate technology tabula rasa. When the law enters a technological field, it necessarily carries with it an image of the technology it is about to address. This technological image might be explicit or hidden; it might be based on a factual inquiry or on a general perception; it might be accurate or misguided. The underlying image shapes the law's mindset regarding its technological subject matter.

On the other hand, a common claim about technology-related laws is that they are technology-neutral; namely, that they can apply to all relevant technologies. Legislative technological neutrality is said to achieve several important goals, which I shall identify as flexibility, innovation, and harmonization. These three goals, if achieved, could assure that the law remains relevant even in light of newer technologies that were not anticipated at the time of legislation (flexibility); they promote the development of new and hopefully better technologies--or at least they do not hinder it (innovation); and they can smooth and streamline the diffusion of technologies (harmonization). Technological neutrality also attempts to overcome any technological bias that the law might have. In other words, technology-neutral laws purport to regulate technology without envisaging an image of the regulated technology. Hence the paradox: can the law regulate technology and yet remain blind as to the regulated technology? Is technology-neutral legislation possible?

This article suggests that we read technology-related laws so as to uncover their technological mindset. This is the reverse engineering of the law. Such a reading is an interpretive tool that can assist us in evaluating the law and the legal ramifications of new technologies. The proposed reading--the reverse engineering of the law--is different from a lawyer's legal reading of the law, which aims to figure out the scope of a given law ("What is the law?"). It differs from an interpretative mode that searches for a law's purpose ("What is the law meant to achieve?"). Nor is it a historical reading, aimed at figuring out the original intention of its legislators ("What did the legislators intend?"). Instead, the proposed reading is interested in the legislation's attitude as to technology: "What is the law's underlying technological mindset?" I seek the legislation's meaning in its outcome, rather than in the intentions of the law's drafters or the legislative history. This reading is informed by literary criticism in its focus on the text and the subtext. Like other interpretive modes, it tries to expose hidden assumptions.

One possible explanation of the paradox would be to deny the first claim, that the law has an underlying image about the regulated technology. …

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