‘Code’: Privacy's death or saviour?

Abstract Software code regulates behaviour and maybe even more so than legal code. For instance, digital rights management systems can prevent users from breaching copyrights more effectively than copyright law itself can. The relationship between ‘code’ and privacy is more complex than is the case with copyright. Where technology in general seems to have a negative impact on privacy, technology could equally be used for enhancing privacy. This article discusses the nature of ‘software code’ in relation to privacy. It argues that, often, privacy threats are not implemented in code on purpose, but that privacy erosion is nevertheless an inexorable side effect of technology. The paradigmatic reflex of data maximization, due to a lack of awareness on the part of developers – and users, is a major factor that leads to the erosion of privacy by technology. Ronald Leenes and Bert-Jaap Koops are both associate professors in law and technology at Tilburg University.