The hazards of technology-neutral policy: questioning lawful access to traffic data

Abstract

After some successes and many mis-steps, the regulatory environment surrounding technology policy is transforming. Lessons taken from content, copyright, and cryptography policy processes, amongst many others, resulted in the emergence of a number of technology policy innovations. Two particular innovations are the internationalization of policy-setting, and the trend towards technology-neutral policies. These innovations come with risks, however. The risks are particularly apparent when we look at policies on law enforcement access to traffic data. Access to traffic data for law enforcement purposes is a traditional tool for investigation and intelligence gathering. Traffic data is an elusive term, due in part to technology variances. The policies regarding lawful access to traffic data, however, are increasingly set in technology-neutral language, while the language is often negotiated at international fora. Each policy innovation needs to be questioned. The momentum behind the policy changes comes from both the technology and international incentive schemes. Yet the policies tend to ignore the technological details; while policy changes are argued as necessary due to international obligations. In the hope of updating our policies, we may be numbing our technological awareness and political openness.

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