On assumptions

We do not question assumptions.  This is, of course, a tautological statement.  But its logical infallibility belies its profoundness.

For example, Rondam argues:

Underlying the debate about the so-called Stop Online Piracy Act (SOPA) is the unstated assumption that intellectual property rights have the same legal standing as other property rights. They don’t, and the tacit concession of this point by opponents of SOPA is significantly weakening their position.

This is a fine and reasonable position, but a full discussion is outside of the scope of this article.  The principle is that framing the question limits the debate:  we “all know” that intellectual property rights have a small levenshtein distance from actual property rights, and so therefore the question is about how much protection rather than whither protection.  If using the metaphor “intellectual property rights” to talk about copyright leads to legislation like SOPA, maybe it’s time to re-examine the metaphor.  The best defense of this view I have ever read is the journal article from the  Mises Institute.  (Always make sure you are arguing against the shining star of your opposition, their best and brightest, not some straw-man blogger.)

But SOPA opponents are guilty to the “blind to assumptions” problem as well.  A frequent sentiment is that if SOPA is defeated, it will be brought back again next month under a new name, and so the only real way to stop it is by introducing an “Internet freedom bill” that would prevent it from coming back up in the future.

But that line of reasoning is based on its own set of assumptions:

1. That some particular kind or volume or degree of internet access like what we have today is a fundamental right, or natural right, or human right (the semantic discussion to be had some other time).
2. That human, natural, or fundamental rights are in need of a defense in disproportion to what the interested actors are able to mount.
3. That specifically the person who is responsable for providing the defense that the interested actors are unable to make is the government, specifically the United States government, specifically Congress, specifically by introducing legislation.

I do not think anyone has ever sat down to discuss these assumptions, or at least, I was never invited to the party.

But there is a yet even more insidious assumption:  both sides believe that SOPA will have an effect.  Why?

Of course, it may have an effect on Google, Facebook, et. al.  Geeks are employed by these companies; geeks identify with these companies.  People will be jailed over SOPA, just as they were jailed under the DMCA.  It will make startups’ lives more difficult.  I do not mean to trivialize this impact.

But SOPA will not mean the end of the Internet.  The Internet is self-healing; we route around bad nodes.  If SOPA kills DNS, we will replace it.  If it kills HTTP, we will use HTTPS.  If it kills IP, we will use TOR.  If it kills fiber, we will use the sneakernet.  Mounting a comprehensive defense around SOPA gives legitimacy to the idea that it has power.  It does not.  Its only power is to redirect the work of a few smart people away from, say, cancer research and onto, say, TOR.  This is a waste of resources, in the same way that spilling a cup of milk onto the floor is a waste of resources.  But you don’t cry over spilt milk.  Our response is disproportionate to the threat, and it lends legitimacy to the idea that Congress does, will, or even can control the Internet.  They cannot.  To whatever extent the Internet is a right, it is not a right granted at Congress’s pleasure, nor is it a right that can be removed by their displeasure.

I have used SOPA as the example, because it is one we all know.  But this isn’t about SOPA.  It’s about assumptions.  Why do we not question our assumptions?

Our legal system is essentially based on additive synthesis.  We create departments, laws, and cabinets, but we never sunset them.  We will never evaluate the performance of the TSA, the FDA, the DoE, the EPA.  (Certainly some of these are good things, I’m simply saying that we never critically evaluate them to verify that fact.)  Are we truly in a democracy if decisions that I did not vote on, did not participate in, that I did not experience the environmental pressing need, and that happened before I were born continue to bind my behavior today?  Essentially, we live in a tyranny of the dead: few are alive today who participated in the political process that established any arbitrary law or policy of these United States.  At one point laws without adequate representation were considered a faux pas.  At the very least, your interests cannot be adequately represented if you are not alive.

So I have a modest proposal:  Congress shall make no law that is enacted for a term of more than 20 years.  If it turns out to be a good law, it can be re-enacted for another 20.  If it turns out to be a bad law, we can overturn it in the review.  This at least gives me at least the illusion that I live in a society in which my vote effects my world, that I am not bound by the tyranny of my ancestors, and it causes us as a culture to question our assumptions, if only infrequently.

With all of the complex laws that we have coming up for review at regular intervals, eventually Congress and lobbyists would become so swamped that they will have to be frightfully careful with their time:  to carefully pick and choose which laws to re-enact, vs which laws to let die.  The supporters of legislation like SOPA may not find the political strength to pass it if they are fighting to keep laws like copyright, the crown jewels of their kingdom, on the law books.  Nor will they manage it if the DMCA is under threat.  SCO may not have the money to mount a legal offensive if they have to continually lobby to keep software patents legal.  Essentially, those who reach for the baton of government will have to continually justify its use, and their influence in our democratic process will be fixed at some particular level.  Legal power is no longer something to be gained, it is something to be maintained.  And the mechanic is expensive.  You can no longer own governmental power, you can only rent it from the governed.

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