On the enforceability of laws
- July 18th, 2010
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There’s much ado today about the pain gun which HN thinks will be turned around and used on civilians. They’re probably right. But in the long run, that doesn’t matter.
You see, pretty much every piece of technology ever invented started out looking pretty evil. Computers were a way to rapidly calculate bomb trajectories. The internet was a secret government network designed to coordinate military attacks. GPS was invented to track ground and air targets.
These things don’t seem quite as evil today, do they? Computers and the internet are probably the most democratically-empowering invention ever, and we’re in the middle of a location-aware GPS renaissance that’s certainly much less hostile than an air strike.
The nature of technology is that it makes things easier to do. The idea in the DoD’s mind is to only make things slightly easier to do, such that only organizations as large as the government can do them. However, progress doesn’t stop because a large government wants it to. Smaller governments develop the technology, and then larger corporations develop technology, until finally, you and I are holding internet-connected computers with GPS in our hands.
This is the reason why the Orwellian nightmare didn’t happen: cameras became cheap enough not only for the government to buy them to spy on us, but for you and I to buy cameras to spy on them. State governments have recently figured this out, but there’s not an awful lot they can do about it.
The first casualty in the widespread availability of technology has been the music and movie industries. Until quite recently, copyright infringement that was good enough to actually pass as the original required complicated equipment–on the order of the cost to make the content in the first place. This complicated equipment was difficult to hide, was easily found when executing a search warrant, and it was expensive. Pirated copies had to be sold (instead of given away) to cover the expense.
Of course, this is no longer the case today. The device you are reading this on is more than powerful enough to copy the very highest-quality audio or video file. How far we have come from military defense networks and rocket trajectory calculators!
Until recently, it was easy to pirate content, but it was difficult to profit from it. Now it is even profitable. In spite of perhaps every country out for its blood, the Pirate Bay sails on, advertisers and all, and seems to be all but unstoppable.
This is the first and the best example, because it is almost fully played out. The pattern is this: technology is birthed to aid the elite. At some point it starts to chip away at the elite’s monopoly. It starts rendering existing laws widely unenforceable. And then it reaches a point where subverting the law is an enormously profitable market.
Let’s look at another example: encryption. Until about the 1970s, if you wanted to send a secret message you needed to employ a small army of mathematicians. If you wanted to keep your message secret from a world power, you were flat out of luck unless you happened to be the US government.
With the rise of formal private key cryptography, it became feasible, technically, to render search warrants unenforceable. Nobody was terribly concerned except the spooks at the NSA, who began feverishly trying to come up with better and cooler ways of cryptanalysis to keep ahead of the curve. They were successful for some time, and still are in a very technical sense. We know today that the NSA actually used some complex math that hadn’t been publicly discovered yet to “fix” DES to be stronger against attacks. However, as strong encryption became easier and easier to implement, it started to work against the NSA’s interests.
More and more politicians began to view strong encryption as a serious problem, and laws were put in place to ban its export outside the US. You actually had to have an export license in order to let your Munich office use your internally-developed DES software. This law remained on the books until 1996, at which point PGP and other open-source encryption software had rendered it totally unenforceable. Even in the PGP era, there were complex legal hoops that had to be jumped through–instead of digital distribution, PGP went through the ridiculous step of printing 6000 pages of source code, exporting them from the US on paper, and scanning and OCRing them, using the “scanned version” for all the international mirrors, where they were downloaded over the internet just like every other piece of software.
Of course, today, you can get military-grade encryption simply by typing an “s” after the “http” in the URL bar, and it would take the NSA a decade and a billion dollars to read your bank password. There is a whole cottage industry dedicated to very complex encryption software, and in an incredibly ironic twist, encryption is still being hailed as the holy grail to fix the failing movie and music industry.
The pattern isn’t quite as clearly marked, particularly because there are a few channels where encryption has not quite taken hold. Many voice communications, for instance, are not regularly encrypted in a secure manner, although new VoIP networks (see Skype) are often fully encrypted. This is why the NSA is so serious about their wiretap program–they know that the window of unencrypted voice communication is rapidly closing.
One potentially serious-sounding loophole is that in many countries (including the US) it is theoretically or actually possible to throw you in jail for refusing to decrypt some kinds of data. In response to this, there are now mathematically rigorous ways of encrypting data in such a way that it is impossible to prove that it is encrypted, and so by extension it is impossible to command you to decrypt it. And there are equally rigorous ways to encrypt several different data blocks in the same cyphertext, meaning you could reveal one of them on command, leaving your adversary no way to prove that there is a second layer. So this has basically rendered the “command decrypt” legislation unenforceable again.
So while this battle is playing out, and with the pattern firmly established, we turn to the future. What will be the next casualty of technology?
It seems to me that the next to go might be controlled money. In almost all civilized country, money serves as a very tightly regulated commodity, one subject to hundreds of thousands of laws, from the IRS code to business regulation to case law. Now some of you are thinking “But banking regulation keeps us safe–surely you are not arguing against it!” Technology did not care if we were morally in favor of copyright law, and it didn’t care if we were morally in favor of wiretapping laws. It simply gave everyday people a viable means to insulate themselves from both. I think the same thing is about to happen with money.
I can envision a future world where the IRS is simply incapable of determining how much money you made (and unable to tax you for it), where the private investigators are unable to investigate your credit card purchases, and where the governments of the world are unable to print more just to get themselves out of trouble. The flipside of deregulation is that consumer protections will also disappear–you cannot enforce bankruptcy protection if there was never a traceable debt to begin with.
Of course, this will cause every civilized government to fail, because governments depend on tax dollars. Do not fool yourself into thinking that this is a reason that it cannot happen–piracy will probably kill the record labels, but that fact hasn’t stopped it.
The easiest way to convince you that this is going to happen is to say “you can watch it happening already”. How many products do you buy from Amazon sales-tax-free? You are supposed to write the state a check for that. Already the entire sales chain that was used for well over a century to get mass produced goods in people’s homes has been virtually undermined. If it is easier to ship your cleaning sponges from a warehouse in New Jersey than it is to walk down to your local Wal-Mart, how long will it be before a warehouse outside of US jurisdiction is cheaper than both?
You also see anonymous banking as a very popular research topic. Right now there are mostly papers about it, and a few silly-looking implementations. It’s like cryptography in the 70s. If back then somebody said that the research was going to lead to subverting a dozen industries and severely curtailing the powers of the US government, you would be laughed at. Today, the cryptography battle is almost won.
But perhaps most convincingly there is a huge need to make money untraceable. Some of this probably comes from the highest levels of the US government as a way to move spies’ funds around without letting on to other governments. China has a huge incentive to prevent the US from trying to print its way out of a depression. But businesses and even normal people also want to reduce their tax liability (and increase their privacy safeguards). So you have the same demand slope for untraceable money as for digital copying and strong cryptography.
And so when I see articles about new government tech like the pain gun, and I see very smart people getting very upset, it strikes me a bit odd. The prevailing wisdom seems to be that we live in an oppressive legal world that desperately needs a reboot, and Orwell is lurking right around the corner. Perhaps this is true, but it is only true on paper. In practice, technology seems to be giving us back our rights even as the law fails to protect them.
And technology bestows rights in a way which is true and real far beyond the law. The law can be changed, but you cannot undiscover AES. The law gives you rights as a fiction, but technology gives you rights as a fact.
