Extract

. That is the approach adopted in this chapter, although the principal focus is squarely on the law’s operation.

Such reasoning allows for quite sophisticated regulatory approaches. For instance, in Code and Other Laws of Cyberspace, first published in 1999,14 and updated in a version ‘written in part through a collaborative Wiki’ as Codev2 in 2006,15 cyber-lawyer Lawrence Lessig maps four ‘modalities’ of regulation – ‘the law, social norms, the market and architecture’ (ie, the built environment, or technology), arguing that regulation is ‘the sum of these four constraints’.16 He points out that sometimes the modalities may operate in conflict with each other. But they can also work in tandem in constraining or enabling freedom. Further, he adds, some might work better than others – for instance, in some contexts, social norms, in others law, and in others still technology, as increasingly seems to be the case in digital environment. Lessig is not talking especially about the regulation of privacy here (although he does come back to privacy later as we shall see). But his elegant model can be used to analyse how privacy laws regulate privacy subjects alongside social, technological and business/markets modalities.

We can use Lessig’s analysis to imagine the effect of regulatory modalities on privacy subjects who may be constrained or enabled in their pursuit of privacy by the combination of technology, markets, social norms and law. This may occur in a range of ways, bearing in mind that, as Lessig says, the modalities...