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Univ. of San Diego School of Law

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Tuesday, October 6, 2009

Koops on Law and Technology

Koops Bert-Jaap Koops (Tilburg University - Faculty of Law) has posted Law, Technology, and Shifting Power Relations on SSRN.  Here is the abstract: 

In unequal power relations, the law controls the power of strong parties by providing weak parties with inequality-compensating rights. This classic account of inequality compensation in criminal law, labor law, and consumer law is challenged with the advent of information-related technologies: power relations start to change. Both strong and weak parties can improve their information position, causing power relations to shift in various ways. This article aims to map technology-related changes in power relations in law enforcement, labor, and commerce, and to assess the consequences of these changes for the legal protection of citizens, employees, and consumers. The analysis is illustrated by reference to American and Dutch law, comparing common-law and civil-law approaches to inequality compensation.

Three power relations – law enforcement-citizen, employer-employee, and business-consumer – are analyzed on the basis of case descriptions and a general discussion. The analysis shows that with mushrooming databases and profiling technologies, power relations are changing in character and scope. Overarching trends are using digital personae as a basis for decision-making and creating panoptic risk-governing architectures that have a potentially self-disciplining effect on observed parties. Existing legal mechanisms are not sufficient to protect weak parties against errors in decision-making and the subtle and indirect uses of architectural power. Legal protection in criminal and administrative law, labor law, and consumer law should therefore be updated. This, however, is only part of the story. The different roles of individuals as citizens, employees, and consumers are becoming intertwined in the information society. Decisions are made about digital personae living in interconnected, context-crossing databases that are fed by pervasively monitoring architectures. On top of sector-specific legal protection, we therefore also need a comprehensive approach, which is most likely to be found in data protection: enforceable rules about who processes which data for which purposes. However, the jury is out on the question how data subjects can realistically be protected in the networked database age. The dominant, orthodox view favors the European approach of data limitation and user control, facilitated by privacy-enhancing technologies. A subsidiary, radical view favors user-generated data maximization and ubiquitous transparency. While proliferating databases and panoptic architectures play into the hands of strong parties, we will have to decide today upon a consistent approach to achieve effective data protection for tomorrow’s individuals. If the orthodox view does not prove successful soon, then we should perhaps collectively adopt the radical view. On that note, a postscript ends the article quoting Umberto Eco’s Anopticon as a welcome addition to the literature on panopticism and how to resist it.
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