When New Technologies are Still New: Windows of Opportunity for Privacy Protection

Abstract

Early intervention in the regulation of new technologies is highly controversial. In this Article, I seek to depolarize the early intervention debate and examine where timing becomes of the essence in the shaping of new technologies. At the outset, I reframe the debate in terms of social shaping in lieu of intervention.

I focus the social shaping inquiry on the development of non-privacy norms among the Internet's commercial users in order to shed light on the timing quandary. Currently, over a decade after commercial entities started collecting personal information on the Internet, the law has not restricted these collection practices. Efforts at self-regulation have failed and Internet users overall have not adopted technological measures to protect their privacy. Empirical data shows an increase in the use of privacy threatening devices, such as cookies and spyware. The data shows that commercial non-privacy norms on the Internet have become entrenched among the Internet's commercial users.

Three technological characteristics of the Internet appear to be at the crux of the fast diffusion of commercial non-privacy norms. These characteristics are: the Internet's critical mass point quality (and related network effects); its decentralized diffusion process; and the enablement of concealed monitoring.

I suggest that where a technology's characteristics are likely to cause fast entrenchment, timing may become of the essence. Insights from several fields support this conclusion. The theory of path dependence shows that where costs are sunk into one option, an alternative option even if preferable is less likely to be adopted. Further, the theory of closure demonstrates that after an initial period where a technology's design and function evolves it tends to stabilize, reaching closure - from that moment onwards change is less likely. Finally, law and social norms theory shows that laws are less effective where they contradict social norms.

Finally, I posit that the lessons learnt from the case of Internet privacy could be instrumental to the resolution of other technological controversies. Specifically, I propose that where a technology's qualities show that timing may be of the essence for privacy protection, both legal and technological modes of social shaping should be adjusted to reflect sensitivity to timing. Technological shaping is more likely to be effective through proactive concerted design at the outset. For legal decision-makers the technology's sensitivity to timing points to the need to consider timing as an important factor in the decision-making process, accounting for potentially more limited options at a later stage.

Keywords: Privacy, Technology, Internet