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Assessing Digital Preemption (and the Future of Law Enforcement?)

New Criminal Law Review, Fall 2011

35 Pages Posted: 9 Jan 2011 Last revised: 8 Aug 2015

Daniel M. Rosenthal

Harvard University - Law School - Alumni

Date Written: January 5, 2011

Abstract

Like "child-safe" toys, modern technological tools can be designed to prevent users from harming themselves and others. For instance, vehicle manufacturers are testing cars that would automatically brake when a collision is imminent. And digital programming can target moral as well as physical harms. The iPhone was designed to allow Apple to remove applications from users’ devices, a capability it utilized to excise sexually suggestive applications in early 2010.

Government may increasingly take advantage of this possibility. In an increasingly digital world, the government could manipulate technological design to make it difficult or impossible to break laws using digital devices. In a 2008 book, Jonathan Zittrain discusses this law enforcement approach, which he calls "preemption." Zittrain argues persuasively that digital preemption gives serious cause for concern. But he admits that "our instincts for when we object to such code are not well formed."

This article attempts to fill that gap by connecting digital preemption to existing literature and analyzing the most significant unexplored risks of digital preemption. The article starts by situating preemption among related enforcement techniques. Next, the article explores two key objections to digital preemption that have not been developed in previous discussions: overenforcement and stasis. The article concludes with policy suggestions.

Keywords: digital preemption, preemption, zittrain, situational crime prevention, libertarian paternalism, lessig, overenforcement, stasis, filtering

JEL Classification: K4, K14

Suggested Citation

Rosenthal, Daniel M., Assessing Digital Preemption (and the Future of Law Enforcement?) (January 5, 2011). New Criminal Law Review, Fall 2011. Available at SSRN: https://ssrn.com/abstract=1735479

Daniel Rosenthal (Contact Author)

Harvard University - Law School - Alumni ( email )

5163 Massachusetts Ave
Cambridge, MA 02138
United States

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