• Login
    View Item 
    •   Home
    • Yale
    • Yale Journal of Law and Technology
    • View Item
    •   Home
    • Yale
    • Yale Journal of Law and Technology
    • View Item
    JavaScript is disabled for your browser. Some features of this site may not work without it.

    Browse

    All of openYLSCommunitiesPublication DateAuthorsTitlesSubjectsThis CollectionPublication DateAuthorsTitlesSubjects

    My Account

    LoginRegister

    Statistics

    Display statistics

    Reverse Engineering Informational Privacy Law

    • CSV
    • RefMan
    • EndNote
    • BibTex
    • RefWorks
    Thumbnail
    Name:
    15_YJoLT_24_Birnhack_ReverseEn ...
    Size:
    674.7Kb
    Format:
    PDF
    Download
    Author
    Birnhack, Michael
    
    Metadata
    Show full item record
    URI
    http://hdl.handle.net/20.500.13051/7781
    Abstract
    Is technology-neutral legislation possible? Technological neutrality in legislation is often praised for its flexibility and ability to apply to future technologies. Yet, time and again we realize that even if the law did not name any technology, it was nevertheless based on an image of a particular technology. When new technologies appear, they expose the underlying technological mindset of the existing law. This article suggests that we read technology-related laws to uncover their hidden technological mindset so that we can better understand the law and prepare for the future. Reverse engineering the law is an interpretive mode, tailored to uncover the technological layer of the law. After locating the discussion within the emerging research paradigm of law and technology, the article unpacks the meaning of technology-neutral legislation and points to three possible justifications thereof: flexibility, innovation and harmonization. The article then suggests an initial typology of the range of legislative choices, one that is richer than a binary all-or-nothing choice. The typology is based on three continuums: means-end, promotion-restriction and abstract-concrete. The three continuums can assist policy makers in deciding whether to attempt legislating in a technologically neutral matter or not. The article then explains the methodology of reverse engineering the law. The next step is to challenge the claim of neutrality in the context of informational privacy. Proposals to amend the law are on the tables of policy-makers in the United States and in the European Union (EU). I focus on the current global engine of data protection law, the 1995 EU Data Protection Directive. The reverse engineering of the Directive indicates that it is more technology-neutral than we might have expected from an instrument that was composed in the early 1990s based on lawsffrom the early 1970s. Nevertheless, a close reading reveals the Directive’s underlying technological mindset and hidden assumptions. I conclude that pure technologically neutral legislation is, to a great extent, a myth.
    Collections
    Yale Journal of Law and Technology

    entitlement

     
    DSpace software (copyright © 2002 - 2023)  DuraSpace
    Quick Guide | Contact Us
    Open Repository is a service operated by 
    Atmire NV
     

    Export search results

    The export option will allow you to export the current search results of the entered query to a file. Different formats are available for download. To export the items, click on the button corresponding with the preferred download format.

    By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.

    To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export. The amount of items that can be exported at once is similarly restricted as the full export.

    After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.