The (In)Flexibility of Techno-Regulation and the Case of Purpose-Binding
Tilburg Institute for Law, Technology and Society (TILT)
November 1, 2011
Legisprudence, Vol. 5, No. 2, pp. 171-194, 2011
Current literature on techno-regulation – the conscious deployment of technology to regulate people’s behaviour – briefly touches upon the issue of flexibility. On the one hand, it is suggested that technology-embedded rules tend to be rigid, whereas legal norms are flexible and open to interpretation. On the other hand, technology in principle allows for flexibility through open configurations and the plasticity of software, while law is relatively static.
The case of purpose-binding adds to our understanding of techno-regulation and flexible rules by suggesting the following insights that can be studied and developed in further research. A trade-off exists between the plasticity of technology in techno-regulation and the usefulness and adoption of techno-regulation. The more plastic the techno-regulation, the less it adds to legal regulation; and the more it is to add, the more rigid it will have to be. Techno-regulation may be a realistic venture for simple rules that are well suited to be represented computationally, which may help organisations in compliance assurance, but it has little added value in terms of enhancing precision or enforceability, and may therefore be less interesting from a regulatory and theoretical perspective. Techno-regulation as enforcement of a legal norm is problematic if the norm itself is complex due to openness, fuzziness, contextual complexity, or regulatory turbulence. Since much cyberlaw and privacy law is complex and in flux, perhaps paradoxically, techno-regulation does not seem particularly suited to regulate cyberspace itself or to enhance privacy. The outlook for techno-regulation may therefore be limited. Rules need breathing space, and it still takes a human being to make a rule come to life.
Number of Pages in PDF File: 15
Keywords: techno-regulation, flexibility, data protection, purpose specification, use limitation, privacy markup language
JEL Classification: K10, K40, O38Accepted Paper Series
Date posted: November 4, 2011
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