On technology neutral policies for e-identity: A critical reflection based on UK identity policy

• Author: Edgar Whitley
• Pages: 134-147

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Edgar A. Whitley

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Abstract: This paper reviews the arguments for technology neutral e–identity

policies. It uses the recent experience of identity policy in the UK, as well as a

consideration of technological developments, to distinguish between two perspectives on

technology neutral policies: legal and technological. Whilst the legal p erspective on

technology neutrality is i ntended to provide legal certainty, it fails to address discontinuou s

technological developments such as zero–knowledge systems and risk based assessments of

identity and attribute claims. These are transforming t he basis of identity policies and

highlight the challenges of proposing technology neutral identity policies in law. The paper

then applies the technological critique of technology neutra lity to review a recent study on

identity, authentication and signature policy in the EU.

1. Introduction

For apparently intuitive rea sons, many EU regulations and policies in the area of t echnology and

communications are intended to be “technology neutral”. They typically require that “national regulatory

authorities take the utmost account o f the desirability of making regulation technology neutral, that is to

say that it neither imposes nor discriminates in favour of the use of a particular type of technology” (EU,

2002 para 18). It is often suggested that this is b ecause policies should be based on gener al, context–free

principles rather than instantiations of technology.

Focussing on specific technologies carries the risk that the technology might change rapidly or

become obsolete, rendering the associated regulations ineffective and requiring special parliamentary

time to refresh them. For example, just as wiretap regulations have had to develop and be redefined as

interception capabilities moved from alligator clips on c opper wires to IP packet sniffing (Di ffie &

Landau, 20 09) so r egulations on e–mail interception which are based around inspecting SMTP packets

are problematic in situations where browser–based web–mail predominates (Whitley & Hosein, 2005) o r

lawful access to communications context data is highly dependent on what count s as context and what is

effectively content (Escudero-Pascual & Hosein, 2004).

These experiences from the regulation of technology resonate with recent social science thinking on

science and tech nology that q uestions the exte nt to whic h technology can meaningfully b e seen as a

distinct area of activity that is separate from social activity (Latour, 1993; Orlikowski, 2010; Suchman,

2007). Instead, these scholars seek to understand “how matter comes to matter” (Barad, 2003;

Orlikowski & Scott, 200 8), returning the “missing masses” of technology to the policy debate (Latour,

1992) and taking the specifics of technology seriously (Martin & W hitley, 2012).

These concerns are particularly important because it is increasingly recognised that the technological

itself e mbodies p olitical choices. Langdon Winner’s classic paper “Do artifacts have politics?” (1980)

illustrates this with perhaps the most famous example he presents bei ng the “extraordinarily lo w”

overpasses on the parkways on Long Island, N ew York. Winner suggests these were “deliberately

designed” by Robert Moses, “to specifications that would discourage the presence of buses on his

parkways” leaving the parkways (and beaches) free for the “automobile owning whites of ‘upper’ and

‘comfortable middle’ classes” (pp. 123–124). (Although see, Woolgar and Cooper (1999).)

In some cases, political and social choices may be e xplicitly designed into regulations about

technology to encourage or discourage their uptake. As an example, the UK has recently introduced a

“digital by default” policy, the intention of which is both to provide better services for citizens and to

deliver gross annual savings of more than £1.3 billion (Cabinet Office, 20 10). Winner’s analysis,

however, warns us that some political decisions may be hidden within apparently neutral propositions,

such as the design of parkways. In other cases, the political consequences may be entirely autonomous of

individual decisio n–makers (Winner, 197 7) but still need appropriate oversight. In this contex t, claims

that a p olicy is technology neutral and based around genera l principles need to be treated with suspicion