Should ICT Regulation be Technology-Neutral?

STARTING POINTS FOR ICT REGULATION. DECONSTRUCTING PREVALENT POLICY ONE-LINERS, IT & LAW SERIES, Bert-Jaap Koops, Miriam Lips, Corien Prins & Maurice Schellekens, eds., Vol. 9, pp. 77-108, The Hague: T.M.C. Asser Press, 2006

28 Pages Posted: 25 Jul 2006  

Bert-Jaap Koops

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

Abstract

This article is a chapter in a book that critically examines prevalent policy one-liners for ICT regulation. In this case, the statement 'ICT regulation should be technology-neutral' is analysed. It starts with an overview of e-policies that mention this as a starting point. Next, the various components of the starting point and its potential meanings are analysed, in order to better define what is meant by the starting point. Three cases are explored that show how the starting point works in practice: electronic signatures, the constitutional right to secrecy of communications, and misuse of devices in cybercrime and DRM systems. A set of criteria is given to elaborate the starting point; these criteria can be used to assess whether and to what extent the starting point can be put into practice in concrete cases. Subsequently, the article indicates how the starting point could be effected in such cases. Finally, an assessment is made to what extent the starting point is useful. It is interpreted as being most relevant from a legislative point of view: legislation should abstract away from concrete technologies to the extent that it is sufficiently sustainable and at the same provides sufficient legal certainty. Depending on a number of criteria, such as the goal of the regulation at issue, the nature and turbulence of the technology at stake, the urgency of providing legal certainty, and the scope for interpreting the regulation, there are several ways to deal with this trade-off. Through multi-level legislation, open-ended formulations, and a mixed approach of abstract and concrete rules that are periodically evaluated, adequate legal certainty with respect to current technologies may be ensured, while at the same time sufficient scope is given for future technological developments.

Keywords: technology neutral, ICT, regulation, legislation, policy

JEL Classification: O38, K10, K40

Suggested Citation

Koops, Bert-Jaap, Should ICT Regulation be Technology-Neutral?. STARTING POINTS FOR ICT REGULATION. DECONSTRUCTING PREVALENT POLICY ONE-LINERS, IT & LAW SERIES, Bert-Jaap Koops, Miriam Lips, Corien Prins & Maurice Schellekens, eds., Vol. 9, pp. 77-108, The Hague: T.M.C. Asser Press, 2006. Available at SSRN: https://ssrn.com/abstract=918746

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
Netherlands

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