E-Valuating Privacy: Law, Privacy, Code and Values

Abstract

Lessig's well-known theory of "code as law" suggests that since events in cyberspace are regulated by architectures of software and hardware, the builders of this code can imbue it with their chosen values, largely without the constitutional restraints on conventional legislators, yet with effects on social welfare. In the domain of privacy, Lessig and other writers seem to assume that the values embedded in code will by default be privacy-invasive unless deliberate efforts are made to build PETS (Privacy Enhancing Technologies). This paper takes a social shaping rather than a technologically deterministic view, and suggests that technologies are in essence value-neutral and that the social and market forces which may produce privacy-invasive or privacy-enhancing code need careful analysis in each case. Some examples are given of cases where market forces have produced privacy-enhancing code as a saleable "feature" not a "bug", including the development of filtering systems for spam, the privacy management features of the social software platform, Live Journal, and the identity management system, CardSpace. By contrast, similar forces produced privacy-invasive code in the recent example of Google's email system, Gmail. Since code is often more enforceable than law as a regulatory mode in cyberspace (or " code trumps law"), privacy (and other digital rights) advocates might be advised to lobby for general constitutional rules for legal regulation of the values embedded in code.

Keywords: law, internet, code, regulation, privacy, privacy enhancing technologies, privacy invasive technologies, Lessig