Reverse Engineering Informational Privacy Law

Michael Birnhack
15 Yale J.L. & Tech. 24 

Is technology-neutral legislation possible? Technological neutrality in legislation is often praised for its flexibility and ability to apply to future technologies. Yet, time and again we realize that even if the law did not name any technology, it was nevertheless based on an image of a particular technology. When new technologies appear, they expose the underlying technological mindset of the existing law. This article suggests that we read technology-related laws to uncover their hidden technological mindset so that we can better understand the law and prepare for the future. Reverse engineering the law is an interpretive mode, tailored to uncover the technological layer of the law. After locating the discussion within the emerging research paradigm of law and technology, the article unpacks the meaning of technology-neutral legislation and points to three possible justifications thereof: flexibility, innovation and harmonization. The article then suggests an initial typology of the range of legislative choices, one that is richer than a binary all-or-nothing choice. The typology is based on three continuums: means-end, promotion-restriction and abstract-concrete. The three continuums can assist policy makers in deciding whether to attempt legislating in a technologically neutral matter or not. The article then explains the methodology of reverse engineering the law. The next step is to challenge the claim of neutrality in the context of informational privacy. Proposals to amend the law are on the tables of policy-makers in the United States and in the European Union (EU). I focus on the current global engine of data protection law, the 1995 EU Data Protection Directive. The reverse engineering of the Directive indicates that it is more technology-neutral than we might have expected from an instrument that was composed in the early 1990s based on lawsffrom the early 1970s. Nevertheless, a close reading reveals the Directive’s underlying technological mindset and hidden assumptions. I conclude that pure technologically neutral legislation is, to a great extent, a myth.

PDF: Download