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‘Code’ and the Slow Erosion of Privacy

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.