In a recent book, Jonathan Zittrain shows how the government might use technology to “preempt” violations of criminal law and regulatory rules. For example, the state might require Internet Service Providers (ISPs) to block access to illicit material like child pornography. Such preemption differs markedly from traditional law enforcement methods, in which violations are punished after they occur. Due to advances in technology and a shift towards anticipatory approaches for preventing harm, preemption is increasingly feasible and important.
Yet, Zittrain argues persuasively that preemption poses serious risks as compared to traditional law enforcement methods. Zittrain admits, however, that “our instincts for when we object to such code are not well formed.” The goal of this article is to further develop those instincts. Towards that end, this article compares preemption to other approaches for law enforcement and regulation. After putting preemption in context through these comparisons, this article discusses the advantages and disadvantages of preemption.