Code and privacy; an (im)perfect pair?
Code and privacy; an (im)perfect pair?
Ronald Leenes & Bert-Jaap Koops
Center for Law, Public Administration and Informatization
Tilburg University
Lessig in ‘Code and Other Laws of Cyberspace’, argues that code has already upset a traditional balance with respect to privacy. It has already changed the control that individuals have over facts about their private lives. He illustrates this with several privacy-threatening technologies. After an analysis of different conceptions of privacy and arguments pro and con privacy protection, Lessig presents a response to privacy threatening technology: privacy-enhancing technology. In his view, ‘code’ that disturbs the traditional balance between privacy and other interests should be checked by ‘code’ that incorporates privacy values.
In this paper we discuss privacy related developments in four spheres: national security, law enforcement, e-commerce and e-government, and try to answer the question if, and how, the traditional balance changes. We place these developments into perspective by an analysis of the reasonable expectations of privacy in the various domains. The balance between privacy and other interests changes at different speeds in the various spheres and is sometimes not warranted by intrinsic reasons (i.e. the threats outweigh the degree society has changed). As technology, by itself, seems to favour privacy-threatening ‘code’ more than privacy-enhancing ‘code’, the imbalance caused by unwarranted privacy threatening ‘code’, may have to be compensated. For instance by legal measures, such as increased privacy regulation, or mandatory incorporation of privacy-enhancing code.
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