Cyberspace, Freedom, and the Law

 

Reports from the Electronic Frontier: 

 Cyberspace, Freedom, and the Law    

 

Tom Maddox     

<ITAL>If I take something of yours but simultaneously

leave you in possession of it, have I stolen from you?  What is the

value of information of different kinds, including (but certainly not

limited to) lists of names and personal data or computer

programs themselves?  In the labyrinths of cyberspace, whose

version of freedom of speech should prevail?  At what point does

the routine collection and amassing of information about persons

constitute an invasion of privacy?  What laws should govern the

acts of transgressive, vandalistic or overly curious youths who

improperly get access to the computer systems of others?  What

standards should govern corporations' treatment of their

employees' electronic data, including e-mail and personal files?

What constraints should the law (local, state, or Federal) observe

in pursuing criminals, howsoever defined, in cyberspace?<ITAL>   

Questions such as these are being debated <BOLD>out

there<BOLD>, among the set of electronically-mediated

interactions often referred to as cyberspace.  As people struggle

to answer such questions, in the process they are redefining ideas

such as property, liberty, privacy, and crime.  The people

involved include hackers and crackers, law enforcement officials

and lawyers and theorists of the law, defenders of private

property and those for whom property is theft, advocates of

absolute freedom and urgers of limits, reasonable and otherwise. 

And of course they include businesspeople of all kinds, because

the ultimate outcomes of these struggles will rewrite the

environment in which business is done, will probably change the

rules by which it is done, both in cyberspace and elsewhere.     

The individual outcomes are up for grabs; no one knows

how these struggles will be resolved.  We can look at similar ones

in the past, and we can make more-or-less intelligent guesses,

but both technological dynamism and the uncertain outcomes of

law and custom render any such guesses chancy at best.     

To speak about the technology, consider, for instance, the

computer of the '50s:  the gargantuan mainframe in its

cleanroom temple, serviced by priests and acolytes trained in its

mysteries.  Who would have guessed it would evolve so rapidly

into the ubiquitous machines of the '90s, many of them invisible,

stuck into almost all devices, including carburetors, refrigerators,

and toys, and usable by unskilled laity?  And, failing that insight,

who could have predicted the social changes this evolution has

produced?  (I should note that this column exists almost entirely

as an attempt to make some sense of these changes.)  In short,

we cannot envision either what technologies will arrive on the

scene or what effects they will produce in the culture at large.   

However, we can look at earlier collisions of technology

with law and custom to see how prior conflicts were resolved.  For

instance, we can look back to the difficulties that accompanied

the introduction of radio and then television into the United

States to see how broadcast media came to be "regulated" and

increasingly controlled by Federal authority:  this is a prime

cautionary tale that should be listened to by anyone who is

considering the social implications of technological innovation of

any kind.  The road to the varieties of hell we know as radio and

television was paved with good intentions and the consent of

those being paved over.   

When radio stations first began broadcasting in the '20s,

they sprang up virtually at random and did pretty much what

they wanted.  "Radio" was still up for grabs, and no one was clear

about what the nature of the medium would be in practice--

commercials, for instance, were still extremely controversial,

many people (prominent ones such as Herbert Hoover among

them) holding that the "airwaves" should be dedicated to the

common good, not to making money.     

A thousand odd flowers bloomed.  It must have been a

strange and wonderful time to turn on a radio, what with goat

gland salesmen (old men need it special, to paraphrase William

Burroughs) competing with preachers and priests and advocates

of a pandemonium of religious, political, and social persuasions. 

In fact, from the beginning the fundamentalist right has taken its

message to the people on both radio and television, as have even

quirkier, not so easily classified folks, on the order of Aimee

Semple Mcpherson or the Reverend Gene Scott.     

However, the expressive and financial chaos bothered

many people, most especially including station owners

themselves.  Many people became Deeply Concerned about the

possibilities for fraud and general abuse of the airwaves.  Station

owners themselves asked for regulation.  On the one hand, they

were afraid of the monopolistic practices of companies such as

Westinghouse, RCA, and General Electric (I can't imagine why),

and on the other, they were concerned about issues such power

and bandwidth regulation--during this era of the electronic

frontier, you might set up a nice little station only to find a

competitor barging in and interfering with your signal.   

So the government ended up regulating radio, which is

expectable and perhaps even admirable; after all, regulation of

other national flows of goods and services seems to be a

necessary thing, by and large.  Oh, there were dissenters.  Aimee

Semple Mcpherson, who in fact trampled all over other folks'

airwaves, was closed down by Secretary of Commerce Herbert

Hoover, and she telegraphed:   

PLEASE ORDER YOUR MINIONS OF SATAN TO LEAVE MY

STATION ALONE STOP YOU CANNOT EXPECT THE

ALMIGHTY TO ABIDE BY YOUR WAVE-LENGTH

NONSENSE STOP WHEN I OFFER PRAYERS TO HIM I

MUST FIT INTO HIS WAVE RECEPTION STOP   

Despite her plea, the situation was becoming clear:  if the

Almighty wanted to go on radio, he would in fact have to play by

the U. S. Government's rules--their "wave-length nonsense."   

However, the Fed's "minions of Satan" did not content

themselves with regulating the traffic on the airwaves and

overlooking the play of market forces.  They in fact ended up

depriving radio and then television of fundamental free speech

protections of the First Amendment.  Because Americans have

grown used to this state of affairs, it seems natural.  Broadcast

media suffer under vague, whimsical, and annoying restrictions

while print and non-broadcast visual media such as film and

photography have nearly absolute license.  Of course there is

nothing whatever natural about the situation.     

In response to the pleas of station owners, Congress

established the Federal Radio Commission in 1927; the FRC had

a staff of twenty people but and was granted authority over radio

only using what should be recognized as one of the most ill-

advised phrases in the history of government regulation.

Congress said the FRC should regulate the radio waves according

to "public interest, convenience, and necessity."  Astoundingly,

these words still stand as the "standard" by which the Federal

Communications Commission, the successor to the FRC, makes

its decisions. In the words of Barry Cole and Mal Oettinger in

<BOLD>Reluctant Regulators:  the FCC and the Broadcast

Audience<BOLD>, "This vague standard has been used ever

since by FCC commissioners to justify whatever they have

chosen to do."     

Anyone who has listened to much radio or watched much

television can draw their own conclusions about how well the

public interest, the public convenience, or public necessity has

been served in either medium.  Whatever defects unregulated

radio and television might possess theoretically, it is difficult to

imagine they would be more numerous and thoroughgoing than

the existing regulated varieties.   

As recent commentators on this matter have pointed out,

both those who regulated and those who called for regulation said

it was made necessary by technical facts.  The existing AM

wavelengths were narrow, a finite resource that could be, as it

were, polluted by unregulated entrepreneurs, many of whom were

piratical and self-serving.  Of course, by now these arguments

have been obsolete by factors such as expanded AM

wavelengths, the addition of FM wavelengths, broadband cable

transmission of both radio and television, data compression,

multiplexing, and other technical means for making more

effective use of existing bandwidth, and the promise that the

extraordinary carrying capacities of optic fiber transmission will

be available as readily as existing coaxial cable.     

Why, then, doesn't the FCC simply dry up and blow away? 

Bureaucratic self-interest, to be sure, a powerful force that

should never be underestimated.  However I would also argue

that once a culture's members forfeit particular freedoms (First

Amendment protections of free speech in this instance), they

grow comfortable with that situation and may even view

attempts to restore those freedoms with alarm.  Without

overexercising our imaginations, we can imagine many groups in

the United States who would react with horror to the notion that

FCC regulation of the broadcast media should be junked or made

to comply with the First Amendment.     

A phrase from chaos theory applies:  "sensitive

dependence on initial conditions."  As I've just described, for the

broadcast industries those initial conditions included the technical

limitations of the industry in the '20s and '30s and the general

chaos accompanying the birth or radio as a widespread medium;

also, particularly notably, the establishment of the FRC and its

mandate.  More than sixty years later, what we hear and see in

broadcast media is in large part determined by those initial

conditions.   

And in our own time we face similar decisions, also

constrained by technology and equally insistent economic and

social pressures.  Corporations regard their computers and the

files they contain as sacrosanct and consider the intrusions of

"hackers" to be straightforward crimes against property that

should be punished severely.  Employees regard e-mail, even if

sent over corporate networks, as <BOLD>mail<BOLD> and

therefore private, while their employers often treat the same

mail as corporate property and therefore open to corporate

inspection. Meanwhile, various law enforcement agencies

concerned with crime in cyberspace point out that telephone

fraud represents the largest criminal use of computers and

telephones--from boiler-room operations that practice up-to- date

variations on ancient cons to simple ripoffs of long distance

service retailed by sidewalk entrepreneurs.  And various civil

libertarians regard the burgeoning presence of computerized

databases as threats from several sides to the privacy of the

individual.  Meanwhile, some "hackers" regard all barriers to

curiosity or the free circulation of information as pernicious, while

many (perhaps most) software writers and publishers regard all

unlicensed (that is to say, unpaid for) use of their programs as

theft, though many users (perhaps including whole nations in

Asia and South America) regard such claims as beside the point,

given the ease with which anyone can copy and disseminate the

programs.     

And of course these issues are being posed in a

technological environment that has been changing rapidly for at

least the past thirty years and shows no signs of acquiring a

steady state.  Blink and your knowledge of the environment is

obsolete.  Blink again and it's utterly irrelevant.     

Nonetheless, concerning these and numerous other,

similar topics, for better or worse, answers <BOLD>of some

sort<BOLD> will emerge over the next few decades.  I have no

doubt that money and power will be served--in legislatures and

courts, and hence, in law enforcement agencies.  Civil libertarian

groups such as the Electronic Frontier Foundation will exert such

pressures as they can on the same agencies to insure that the

Bill of Rights remains viable no matter the the medium in which

applied.  And so on.  You may expand this scenario as you wish,

may argue for particular winners and losers.  Perhaps we will end

up with a benign (and thus, arguably, all the more pernicious)

censorship and control of cyberspace of the sort that

characterizes broadcast media, perhaps not.  Almost certainly

many of the rules, laws, and customs that do come to pass will

have a somewhat arbitrary character to them.   

Phones and computers can and almost certainly will be

used against <BOLD>us<BOLD>, defined here as all who want to

defend the Bill of Rights, but phones and computers equally can

and will be used against <BOLD>them<BOLD>, defined here as

all whose idea of social order includes limiting the Bill of Rights.     

How tough will <BOLD>they<BOLD> make it? remains,

then, the interesting question.  Will they achieve widespread and

lasting coups against individual rights on the order of the

regulation of radio and television?  Already, as you can read in

Bruce Sterling's <BOLD>The Hacker Crackdown<BOLD>, some

law enforcement agencies have already committed systematic

havoc on individual rights, for instance in seizing computers,

software, and personal files for indefinite periods of time without

charging their owner with any crime.  And the F.B.I. regards the

emergence of digital telephony (which transmits even your voice

as a series of binary pulses) as an impediment to phone-tapping

and has introduced a bill to Congress that would require all

telephone companies to include technological means for tapping

to be built into all such systems, the cost of doing so to be passed

on to the consumer.  (One could extend its argument to include

the notion that all citizens should all be required to have

uncurtained glass walls in every room in our homes so that the

F.B.I. can implement visual surveillance when necessary.  And of

course the cost of building the walls would be passed on to the

individual house buyer or renter.)    

I think <BOLD>they<BOLD> will make it tough indeed

regarding personal privacy.  With more and more frequency and

precision, data about our habits and preferences can be obtained,

filtered and combined in intelligent ways, and used to manipulate

us or predict our behavior.  Sellers of urban snake oil can more

easily find those who have the means and the motives to buy;

political pitchmen (who may simply form a sub-class of the one

just mentioned) not only can locate their preferred audience but

also can tailor their pitch to that audience's prejudices and

preferences.  And, of course, law enforcement agencies of all sorts

have access to an ever- expanding magical toybox of surveillance

devices and methods.   

Thus I believe if you want to preserve your privacy, you

may have to fight for it.  This includes staying aware of attempts

(such as the F.B.I.'s digital telephony measure) to make it easy

for <BOLD>them<BOLD> to spy on <BOLD>us<BOLD> and,

more subtly, staying aware of the implications of seemingly

irrelevant issues such as encryption, now a hot topic before

Congress and Federal agencies. They would like to control the

manner in which <BOLD>we<BOLD> can encrypt files and

transmissions because encryption can be done with desktop

computers that will necessitate extraordinary efforts to decrypt,

even given the resources of the NSA.  Thus, if you value your

privacy, you should support efforts such as the Electronic

Frontier Foundation's to maintain your right to encrypt your

data.  Such issues are complex and often difficult, and I confess to

some pessimism when contemplating the possibilities for an

informed and aware citizenry about these matters.   

However, the essential dynamism of the technology itself,

as seen in the development of the computer from the late '40s till

now, gives me some hope for the continuation and enlargement of

fundamental liberties.  I alluded earlier to the '50s computer, the

batch-processing mainframe.  It gave many people--including a

great many sf writers and readers-- the willies when they thought

of such computers' power being used in the service of control by

the corporations and the many arms of the state.  However, as

things turned out, development of the <BOLD>personal<BOLD>

computer made any simple control scenario unlikely.  Greater

and greater concentrations of computing power have been and

will continue to be put on individual desktops (and, for that

matter, into individual handbags, pockets, and hands).  Similar

developments continue in the communications technology that

turns any user of it into a citizen of cyberspace, with all

appropriate rights and powers--most especially including the

rights to speak out, to ask questions, to hear replies.  Though

technology continually puts new means to control in

<BOLD>their<BOLD> hands, it also puts means to resist in

<BOLD>ours<BOLD>.  Perhaps that will be enough.  Stay tuned.   

<ITAL>Internet address:  tmaddox@netcom.com<ITAL>