‘Code’ and the Slow Erosion of Privacy

74 Pages Posted: 19 Jul 2010 Last revised: 4 Mar 2014

See all articles by Bert-Jaap Koops

Bert-Jaap Koops

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)

Ronald E. Leenes

Tilburg Institute for Law, Technology, and Society; Tilburg Law School; Tilburg University

Date Written: July 19, 2010


The notion of software code replacing legal code as a mechanism to control human behavior – “code as law” – is often illustrated with examples in intellectual property and freedom of speech. This Article examines the neglected issue of the impact of “code as law” on privacy. To what extent is privacy-related “code” being used, either to undermine or to enhance privacy? On the basis of cases in the domains of law enforcement, national security, E-government, and commerce, it is concluded that technology rarely incorporates specific privacy-related norms. At the same time, however, technology very often does have clear effects on privacy, as it affects the “reasonable expectation of privacy.” Technology usually makes privacy violations easier. Particularly information technology is much more a technology of control than it is a technology of freedom. Privacy-enhancing technologies (PETs) have yet to be implemented on any serious scale. The consequent eroding effect of technology on privacy is a slow, hardly perceptible process. If one is to stop this almost natural process, a concerted effort is called for, possibly in the form of “privacy impact assessments,” enhanced control mechanisms, and awareness-raising.

Keywords: privacy, technology, Internet, code as law, privacy-enhancing technologies

JEL Classification: K10, K39, K42, I28, D63, D72, D78

Suggested Citation

Koops, Bert-Jaap and Leenes, Ronald E., ‘Code’ and the Slow Erosion of Privacy (July 19, 2010). Michigan Telecommunications and Technology Law Review, Vol. 12, No. 1, 2005. Available at SSRN: https://ssrn.com/abstract=1645532

Bert-Jaap Koops (Contact Author)

Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) ( email )

P.O.Box 90153
Prof. Cobbenhagenlaan 221
Tilburg, 5037

Ronald E. Leenes

Tilburg Institute for Law, Technology, and Society

NL-5000 LE Tilburg

Tilburg Law School ( email )

Tilburg, 5000 LE

Tilburg University ( email )

P.O. Box 90153
Tilburg, DC 5000 LE

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