2001 Stan. Tech. L. Rev. 1 (2001)
Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get)

handle is hein.journals/stantlr2001 and id is 1 raw text is: 







            Stanford Technology Law Review


            Fair Information Practices and the

                     Architecture of Privacy



                  (What Larry Doesn't Get)


                             MARC ROTENBERGt


                      CITE AS: 2001 Stan. Tech. L. Rev. 1




                             I.       INTRODUCTION

    Larry Lessig's Code and Other Laws of Cyberspace has popularized the view that
'code is law.' The observation, roughly stated, is that decisions regarding the
architecture of the evolving communications infrastructure exercise control over
individuals much like legal code, and therefore should be subject to democratic
considerations such as accountability and public participation. The argument has
attracted critics from the libertarian wing of the cyberintelligentsia2 Who see it as an
invitation   to     government     intervention    and     supporters     on    the
liberal/communitarian/progressive (choose one) side ho at last have a richly
argued intellectual framework with Which to explore the role of the public in the
decisions made by large private entities.3
    In my view, there is much in Code that is very useful. The book provides a
reasoned, skeptical view of the benefits of technology and a broad-ranging
exploration of the interaction of technology, norms, law and policy. However, a
significant part of Code is deeply flawed, and that is the discussion of privacy.



    * In offering this title, I am following the convention that is appropriate for this genre. Responses in
the spirit of What Marc Doesn't Get are welcome and should be sent to rotenberg@ epic.org.
    t Executive Director, Electronic Privacy Information Center, Washington, DC; Adjunct Professor,
Georgetown University Law Center, 1990-; Co-editor, TECHNOLOGY AND PRIVACY: THE NEW LANDSCAPE
(1997); Editor, THE PRIVACY LAW SOURCEBOOK: UNITED STATES LAW, INTERNATIONAL LAW, AND
RECENT DEVELOPMENTS (1999); Former counsel, Senate Judiciary Committee, Subcommittee on Law and
Technology.
    1 LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 6 (1999). Although action figures and
brightly colored lunch boxes have not yet appeared at Toys 'R Us, we can reasonably expect that law school
bookstores will soon offer bumper stickers and T-shirts with the now famous slogan.
    2 Joseph Weizenbaum, distinguished professor of computer science at MIT and author of the ELIZA
program, used the term artificial intelligentsia to critique popular punditry on artificial intelligence and its
impact on social life. See Joseph Weizenbaum, The Computer in Your Future, N.Y. REV. OF BOOKS, Oct. 27,
1983, at 58-62 (reviewing FEIGENBAUM & MCCORDUCK, THE FIFTH GENERATION: ARTIFICIAL
INTELLIGENCE AND JAPAN'S COMPUTER CHALLENGE TO THE WORLD (1983)).
    3 See David Post, What Larry Doesn't Get: A Libertarian Response to Code and Other Laws of Cyberspace,
52 STAN L. REV. 1439 (2000). Lessig was a special master in the government's case against Microsoft.


Copyright @ 2001 Stanford Technology Law Review. All Rights Reserved.

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