Cyberspace, Freedom, and the Law ---------------------------------------------------------------------------- The following article first appeared beginning January, 1993 in LOCUS: THE NEWSPAPER OF THE SCIENCE FICTION FIELD, which is in fact a monthly magazine published by Charles Brown. Its editorial address is 34 Ridgewood Lane, Oakland, CA 94611. You may distribute the text of this article freely, but I would appreciate knowing about anything interesting that you do with them. Tom Maddox tmaddox@well.sf.ca.us ----------------------------------------------------------------------------- Reports from the Electronic Frontier: Cyberspace, Freedom, and the Law Tom Maddox 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? Questions such as these are being debated *out there*, 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 *Reluctant Regulators: the FCC and the Broadcast Audience*, "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 *mail* 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 *of some sort* 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 *us*, defined here as all who want to defend the Bill of Rights, but phones and computers equally can and will be used against *them*, defined here as all whose idea of social order includes limiting the Bill of Rights. How tough will *they* 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 *The Hacker Crackdown*, 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 *they* 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 *them* to spy on *us* 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 *we* 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 *personal* 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 *their* hands, it also puts means to resist in *ours*. Perhaps that will be enough. Stay tuned. ======================================================================= This document is from the WELL gopher server: gopher://gopher.well.com Questions and comments to: gopher@well.com .