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February 07, 2012

Should The Internet Be A Law Free Zone?

Over at Tigerhawk's place, Aegon (the blogger formerly known as TH Teenager) posts an interesting thought experiment about the online piracy debate. The title of his post summarizes his view - People are citizens on the Internet, too. The argument is framed - literally! - as a series of cartoon panels contrasting online scenarios with their meatspacian counterparts... The suggestion being, "If we don't do this in real life, why should it be acceptable online?"

Now if *that* isn't a question for the ages, I'm not sure what is. Here's the opening panel:

There are a few problems with the parallel presented here, the first being that in meat space the possession or sale of goods that resemble those sold by someone else is not a crime (so long as you actually own the goods in question). And that's just the point here: by definition, online piracy refers to unauthorized appropriation of copyrighted or patented material for sale or personal use. The real world counterparts are theft or copyright infringement, depending on the circumstances.

The conflation of "similar" with "identical/stolen" is (to be generous) sloppy at best. At worst, it is dishonest. Regardless of motive, it elides past the critical distinction between creating something that merely resembles someone else's work product and creating an identical copy without permission. In real life we have a legal way of addressing this distinction. it's called the Fair Use Doctrine, and it sets forth a limited set of circumstances in which the work of others can be used without permission. In the comments, I suggested a more apt real life scenario.

...Try, "The shop next door said you are storing stolen property - that belongs to them." Or perhaps even better, "Your storage facility is being used - not just once or twice, but frequently - to store stolen property."

And then ask yourself what the police would do in the real world?

...If the point of the cartoon is to ask, "What would happen in the real world?" and "Why should the Internet be different"?, then it's pretty important to make sure the real world scenario accurately reflects the problem of internet piracy.

Aegon replies:

Technically, it's replicated property. The original is still there. But yes, it was probably taken without permission. Anyway, what about the other two things?

Once again, the term 'replicated' (like similar) obscures the real issue. Who could object to a little harmless replication that leaves the owner's property intact? Perhaps a movie maker who has spent literally millions of dollars to create a film for commercial distribution? Or someone who posts family photos behind what they thought was a secure firewall only to find they've been hacked and those adorable photos of their toddler in the bathtub have been 'replicated' and posted to a pedophilia site?

The second panel contrasts a scenario in which email will be scanned electronically, but not read by a human being unless it contains some indicator of criminal activity with a scenario in which a person receives a letter that - despite providing no credible evidence of criminal activity - was nonetheless read by a human being:

Again, is this really a comparison of like scenarios? Is it fair, or does it present a straw man scenario? What would make it more accurate? The final scenario presents many of the same problems:

Setting aside for a moment the question of whether the first scenario is actually considered "prudent", this scenario compares scanning everyone's downloads and surfing patterns on a network shared by billions of users worldwide to having the police invade someone's home and search a computer they own without a warrant. This last scenario is the most interesting (and thought provoking) because it could have invited careful discussion of how search and seizure laws in the real world might translate to a virtual - and shared - network environment.

Like our First Amendment right to free speech, Constitutional protection against unreasonable searches is far from absolute or unqualified. First of all, the 4th Amendment only protects us from searches conducted by agents of the federal or state government.

Secondly, to be unlawful the search must take place somewhere where the subject had a reasonable expectation of privacy. Examples are your person, your clothes, your home. Individuals have a far lower expectation of privacy in publicly shared spaces (*cough*) or on commercially owned properties.

Finally, it's not enough for you as an individual to believe you have a reasonable expectation of privacy. Other people, viewing the same situation, should also believe you have a legitimate expectation of privacy. The example here would be a crazy guy running through Central Park in the altogether. Though our fictional crazy guy may sincerely believe he has a reasonable expectation of privacy, the average person would disagree.

So how does this all translate to the Internet? Is the Internet "private"? Grim and I have debated this before, but I suspect the answer is, "It depends on the circumstances.". Most web sites reside on servers owned by an ISP. In the real world, if you rent a storage locker at a commercially owned storage facility, you will usually have to sign a promise not to use that facility for illegal purposes. I haven't read my ISP agreement, but I'd be shocked if it doesn't contain similar wording.

Why is this wording there? Because the owner of the storage facility has rights, too. He wants to limit the risk of fallout from your decision to make him an unwitting accomplice to your illegal activities. So my answer to Aegon's question (which I tried to post as a comment, albeit in shorter form) is that I don't see this as a stark conflict between Evil Authoritarian Government and Innocent/Downtrodder Replicators of Ownerless Work Products. Like Aegon, I am troubled by some of the proposed remedies for illegal online conduct. But I'm not quite ready to embrace the notion that because enforcement of online conduct is difficult, we should declare the Internet to be a law free zone.

Real people use the Internet to do real harm to other real people. How we balance the rights of parties with conflicting interests online is a question that won't go away. Aegon's cartoon asks important questions, but does so in a way that skews and obscures the issues.

But I think it raises questions that are worth discussing. To go back to the the beginning of this post, people are citizens on the Internet, too. But people - whether online or in meat space - have different and often conflicting interests. What has never been explained to me satisfactorily is why government should protect some interests and rights while ignoring others?

Update: Here's another oversimplification:

The problem with trying to convince people that copying something you don't have permission to copy isn't like taking something you don't have permission to take. If I steal your car then you don't have a car anymore, whereas if I duplicate a digital media file we both end up with it. The harm in the duplicating is supposed to be that by duplicating content that Fox Filmed Entertainment owns the copyright to, I'm depriving Tom Rothman of some revenue that he might have gotten had I instead gone out and bought a copy of the content for myself. That's fair enough for Rothman to feel sad about, but it's a totally different kind of thing. I didn't buy DC's animated film of Batman: Year One, and I didn't pirate a copy either; I watched it at a friend's house. The difference between watching a movie with your friend and copying your friend's Blu-ray is that one is legal and one is illegal. But in both cases you watch the movie without paying the copyright owner, and in neither case have you stolen anything from anyone.

Yglesias has a point in that conversion (taking someone's property with no intent to deprive them of it permanently) is a lesser offense than theft. Conversion, like duplication, doesn't deprive the original owner of his property. But his scenario blithely ignores the fact that his friend purchased Batman: Year One and used it in a manner consistent with both the law and the terms of sale (he invited a friend into his home to watch the movie). Had his friend put his legally acquired copy of the movie into a Replicator in his front yard with a big sign that said, "Free Copies of Batman! Take as many as you want! In fact, make copies for all your friends!", that would be a different matter.

This analysis was far more thorough. Wish I'd seen it earlier!

In my initial salvo, I pointed out that Yglesias had minimized the harm of copyright infringement with a rationale that could extenuate theft of any kind. Yglesias repeats the error in his reply. He describes copyright holders as monopolists who set high prices in order to maximize profits, thereby pricing some consumers out of the market, and he argues that:
There are customers who would derive some non-zero benefit from using the product, but the benefit would be smaller than the profit-maximizing sale price. To the extent that unauthorized copying helps such people get their hands on works, so-called "piracy" is socially beneficial.

... Yglesias writes that he and I agree that "what copyright does is provide a monopoly on sales of a product." Yes and no; I'm afraid I need to draw a distinction here. Copyright provides a monopoly on a particular expression. That's very different from a monopoly on a material good.

The bolded excerpt is worth thinking about for a moment, as it implies that any time the subjective value of a particular good exceeds its market price, it is "socially beneficial" to help folks who don't think it's worth the price to "get their hands on it". But I loved this one, too:

As an economist, Yglesias believes that the optimal price of a product is its marginal cost, that is, the cost of making one more. ... When it comes to pricing, a work of art appears to have a dual nature: cheap if seen as a collection of bits or ink marks, but expensive if seen as the record of years of intellectual and editorial labor.

Posted by Cassandra at February 7, 2012 07:44 AM

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Comments

I don't believe there is any "reasonable expectation of privacy" when it comes to the internet, any more than there exists in the workplace on your employers network. If I don't own and control the hardware and infrastructure, by definition I don't know who is in the loop. My home computer content, my home wireless network (which I've made the effort to secure and encrypt) are areas that I consider as my having a reasonable expectation of privacy, but even then I bear in mind that my expectation may not reflect reality.

The point of "replicated" property as opposed to actual property conveniently ignores the whole concept of copyright law, doesn't it?

Posted by: Pogue at February 7, 2012 09:56 AM

Well, a more humorous cartoon would have been from The Oatmeal.

Most of the arguments that I've seen regarding SOPA is that it is like using a cannon to kill a rabid dog. The rabid dog is a very real problem that needs to be addressed, but the cannon is going to cause a lot of unnecessary collateral damage.

But back on the topic at hand: In the first panel, the better analogy would be the cops claiming that the store next door is accusing them of storing their own printings of books that the first store wrote without paying. The owner then asks if the cops have a warrant and they respond "Warrant? We don't need no stinkin' warrant!"

That's the issue for me. In meatspace, the accusation in and of itself is not sufficient for the police to close down the store. After the accusation is made, the police must ask for a warrant. The judge must then find that the accusation is credible and constitutes probable cause and issues the warrant. Then the police perform a search. *If* they find evidence of a crime, arrests *may* be made, but punishments are not handed down until *after* a conviction.

Under SOPA, the accusation closes the store regardless of whether the accusation has merit or that it constitutes probable cause. Those issues are handled after the fact.

Punish first and then determine guilt. That is something that would not be tolerated in meatspace.

The internet should not be a lawless place, but it should not be a shoot first ask questions later place either.

In the second panel, it really comes down to whether you think the gov't is telling you the truth about it not being read by a person. And as someone who has some admittidly minor experience in analyzing free text data, you have a real chicken and the egg problem there.

The third, I don't think I understand your position on. You speak of comparing scanning (i.e. searching) *everyones'* file transfers (a subset of all files to be sure) to searching *one persons* files. I don't see how *doing it to everyone* somehow makes it OK.

Additionally, while I do agree that the storage facility has rights too, and that it may be allowed by the terms of their contracts to conduct searches and that this does not violate the 4A because it is not a *state* action, if the police show up on the storage facility's door and threatens *them* with arrest if they don't conduct a search on you and inform the police of the findings, that sounds an awful lot like a *state* action to me.

Posted by: Yu-Ain Gonnano at February 7, 2012 11:10 AM

This post doesn't deal with SOPA specifically because I haven't read it. It deals with the questions posed by the cartoon (accurate or inaccurate as they may be). So I can't comment on the whole "a single accusation is enough to shut a site down". In practice I have a hard time believing that would end up being a workable standard.

Whether or not the police have to get a warrant hinges on the expectation of privacy of the subject of a search. If your book copies were on open display in the window of the store, with more on the shelves (and this is directly analogous to some pirated content being openly available for download) then the police would probably not need a warrant to enter. They might or might not to search your stock room.

You speak of comparing scanning (i.e. searching) *everyones'* file transfers (a subset of all files to be sure) to searching *one persons* files. I don't see how *doing it to everyone* somehow makes it OK.

Well first of all, I stipulated that up front, so I don't see where I can reasonably be said to assert it was OK. There are plenty of examples in real life of random or universal searches that are "OK" because they don't single out one person. Traffic stops are a great example of this.

My point is that the cartoon does a very poor job of framing the real issues. Like so much I see on the internet, it substitutes gross oversimplifications for careful analysis. OK, so it's a cartoon :p

Still, I was asked what I thought of it, so I responded.

Posted by: Cassandra at February 7, 2012 11:28 AM

I should clarify about the second panel. The objection to the "Meatspace" portion showing that the letter really was read by a person while the "Internet" portion claims that that won't happen, depends upon whether you trust the .gov to keep their word.

Personally, I don't want my snail mail opened and scanned by a computer *even if* it never gets read by a human. Computer searches are still searches.

Technology doesn't change the principle. Theft is still theft whether it's done through a computer on the internet or in person. Searches are still searches whether it's done through a computer on the internet or in person.

The point of "replicated" property as opposed to actual property conveniently ignores the whole concept of copyright law, doesn't it?

And strictly speaking it is why "theft" isn't exactly the proper analogy. Copyright provides a monopoly (for a limited time) to the owner. Violating the owners monopoly is a crime, but it's a different crime than theft.

Posted by: Yu-Ain Gonnano at February 7, 2012 11:32 AM

In practice I have a hard time believing that would end up being a workable standard.

It isn't. That's what the uproar was mostly about. This cartoon is likely an extension of those kind of complaints (however poorly it may make those arguments).

Well first of all, I stipulated that up front, so I don't see where I can reasonably be said to assert it was OK.

No, but (and this may be my misreading) but it does seem to read that you are claiming that the two can't be compared because of it: That one may be fine while the other isn't. I don't know why that would be. Your example of traffic stops doesn't really work for me because roads are gov't property. I have no real issue with the .gov performing random/universal searches of *their own* computer systems. Setting up traffic stops on a private property (say the Wal-Mart parking lot), however, doesn't strike me as kosher whether they search everyone or not.

Posted by: Yu-Ain Gonnano at February 7, 2012 11:51 AM

To be analogous, the email example would have to have a Postal Service that would no longer deliver physical mail. Instead, it would only take a copy of a letter you wanted to send; make a further copy of that; and then transfer the second copy to your addressee, while retaining both possession and ownership of the middle copy of your letter.

It could thus choose to show the copy of your letter "that it owns" to the police without your consent; and it would have to be a fully private service, so that there would be no grounds for you to invoke your Fourth Amendment protections. Furthermore, the police should regularly seek agreements with this Postal Service to gain access to "their" copy of "your" letter without you being informed of it, and -- since this is legally being read as a transaction between the police and the Postal Service -- without you having any Fourth Amendment right to object.

Posted by: Grim at February 7, 2012 11:52 AM

Yu-Ain:

You are suggesting that the Internet is private property. I'm not sure I agree.

Posted by: Cassandra at February 7, 2012 12:10 PM

Yay! Devil's Advocate time!

In the first case, he does put the argument against the online piracy laws that have been proposed poorly. So, let's start with disclaimers. Yes, I believe piracy is theft. If you take someone else's digital work and copy and distribute it, you are stealing from them. Be it music, movies, photos, books, software, video games, whatever. The problem with the laws proposed recently (and pretty much any I've ever seen proposed) are that they are written by lawyers who do not understand how the internet works, nor what is reasonable. Case in point. Under the SOPA law which was recently proposed, your blog could be forcibly shut down if I or another commenter linked or embedded a video of a song or movie that was under copyright protection in a comment. Oh, and it wouldn't even really require that they actually tell you you're in violation, if they go to your ISP or blog hosting provider. Because of a comment someone else made. For you see... you were providing a website where copyrighted materials were available. No, you weren't responsible for someone putting it there, but you should have known (or something). Ok, so it's a little less plausible here, because you can track each and every comment that people post. Now imagine you're Facebook. You would LEGALLY be responsible to evaluate every uploaded video, audio file, photo and link that users put on your site. Cause if the RIAA comes knocking, your site could come down.

Is that the appropriate way to handle piracy? Hardly. That's throwing the baby out with the bath water. Now look, I'm NOT unreasonable. I know there are sites like Pirate Bay which are set up with the express purpose to trade pirated materials. But they're using SUCH an overbroad brush, and worse... putting organizations like RIAA in charge of policing it. And if you do not believe they will abuse that power, you've never tried to post parody videos to YouTube. Mind you, it's YouTube's policy to always take the safe route of erring on the side of caution when it comes to copyright complaints. They have a pull it down first, ask questions later kind of philosophy about it. But that's effectively what SOPA was going to require of all websites. If someone claimed you had copyrighted materials on your site (or if you're an ISP, on a site you host whether you run it or not), if you fail to take it down, you face massive fines or seizure of assets. Merit of the claim notwithstanding.


Moving on. The email scanning scenario. I've got a peculiar insight on this one. As some of you know, I worked Signals Intelligence for the Army. I actually did a TDY where I worked in the NSA. First off, ignore EVERYTHING you read in spy novels about the NSA, I've never seen ANY of them get anywhere near the reality of the place. It's an office building, not a super sekrit fortress with retinal scanners and full cavity searches to get a cup of coffee. ANYWAY... fact is, people who think the NSA wants to, or even CAN monitor all US phone calls is nuts. One, it's illegal. They make it VERY clear in the United States Signals Intelligence Directives (or USSIDs) how VERY illegal it is and how you'll do VERY hard time in a federal penitentiary if you do anything resembling listening to a domestic phone call. Two, it's just not feasible. Do you have even the remotest inkling of just how many phone conversations go on daily in ONE US city? The idea that they're going to listen in on every call in hopes of finding something illegal is just STUPID. Worry about the FBI tapping your phone more than NSA listening in. Because phone taps are directed and do occur. NSA listening to you giving your husband the grocery list doesn't.

That said, I think anyone should be concerned the instant anyone suggests "there oughta be a way to skim through emails to find stuff we don't like". Because whether they can feasibly do it or not, it's just dangerous thinking. And don't tell me the government WOULDN'T do it. They can and HAVE censored mail in the past (in WWII for one), never mind the fact that it's a major crime to tamper with mail.

"But email isn't private, because it leaves your control to go through the internet. You have no expectation of privacy!" How many hands does a letter you write to grandma pass through before it gets to 123 Over the River Lane? Why does that have an expectation of privacy, but an electronic one doesn't? Because it uses a network shared by millions of people? Doesn't that also describe the postal system?

As for 4th Amendment protections, you're absolutely correct. It only protects us against federal or state agents (local government agents as well, but skip that). BUT it also prevents those government agents from farming out searches to private individuals. The Feds can't hire a private investigator to toss your house hoping to find evidence of a crime. And that's EXACTLY what they're proposing having the ISPs and search engines do for them. It's EXACTLY what China requires Google to do for them to crush dissidents. Why on earth would we be ok with this? Because it's child molesters and terrorists we want to find? Do NOT let that camel's nose in the tent. Because once you do, you'll never get it back out when it tries to expand that target list.

(continued)

Posted by: MikeD at February 7, 2012 12:10 PM

Since we're doing the devil's advocate thing, I agree with most everything you said, Mike (as usual).

But here's something to think about too:

ANYWAY... fact is, people who think RIAA wants to, or even CAN monitor every link or animated gif on every blog or web site is nuts. Do you have even the remotest inkling of just how comments, links, and files are posted on/uploaded to the literally MILLIONS of sites that currently exist on the Internet? The idea that they're going to search every site in hopes of finding a single copyright infringement that justifies shutting down an entire site is just STUPID.

Once again, I ain't saying the law wasn't badly written. Just that some of the overwrought scare tactics I've read don't pass the common sense test either :p

Posted by: Cassandra at February 7, 2012 12:19 PM

re: Grim's comment.

My esteemed husband has always maintained that anyone who thinks email is private is smoking crack.

Setting aside for a moment the legal ramifications of that eminently common sense statement, I tend to agree.

Or, what Pogue said. I get that people really want the Internet to be private. They "feel" it should be. They frequently act as though it were and screech like scaled cats when reality begs to differ.

Posted by: Cassandra at February 7, 2012 12:23 PM

I don't believe there is any "reasonable expectation of privacy" when it comes to the internet....

There is, though, just such an expectation. It's part of what underlies the uproar over SOPA/PIPA (aside from the ability under SOPA of the accuser to close down the accused site on no stronger basis than the accusation), and it's part of what underlies the uproar over Facebook's, Google's, et al., serial violations of users' privacy.

Technology doesn't change the principle. Theft is still theft whether it's done through a computer on the internet or in person.

This is the key. The legal principle of protections of one's ownership of private property (both physical and our property in our privacy) don't vary with the milieu in question. The Supreme Court is starting to understand this with their police-planted GPS tracker ruling.

Technology may make it more or less convenient for the government to enforce those rights, but those rights don't disappear just because the government finds its task inconvenient.

people - whether online or in meat space - have different and often conflicting interests. What has never been explained to me satisfactorily is why government should protect some interests and rights while ignoring others?

These are separate issues. In the one, people have valid, yet mutually opposing, interests, period. Whether these are in meatspace or in the Innertubes isn't relevant--it doesn't even alter the nature of those conflicts, just the ease/difficulty of resolving them. The other is (separately) just as universal: how do we resolve those conflicts. There are three fundamental ways, it seems to me (and these methods don't provide definitive answers, only frameworks for arriving at them):

1) a society that values the individual above the group will tend to resolve such conflicts in favor of the individual.

2) a society that values the group above the individual will tend to resolve such conflicts in favor of the group.

3) a society that values--or is under the thumb of--despotism will tend to find such conflicts resolved IAW the Because I Said So principle.

Eric Hines

Posted by: E Hines at February 7, 2012 12:23 PM

You are suggesting that the Internet is private property. I'm not sure I agree.

Well, yes and no. Claiming "The Internet" is private property would be like claiming the US is private property.

Within the US there are parcels of land that are privately owned and parcels of land that are publically owned. I don't think you can really speak of the whole as one or the other. But which one you are on at the time ought to make a difference.

Posted by: Yu-Ain Gonnano at February 7, 2012 12:25 PM

And while I run my virtual pie hole, the whole conversation changes!

Is the question whether the cartoons are oversimplifying or not? If so, I'm sorry Dear Hostess, but... duh? Beyond a doubt.

Is a single accusation of copyright violation enough to bring the force of law down on a site or ISP? As written under SOPA? Maybe? No one knows. Because it uses nebulous language. No trial is required. You, as the accused pirate host, have no right to argue against the accusation. You can appeal it, AFTER you've taken down the material (or the whole site). And much like the appeals process for having an endangered species on your property (look it up, it's a nightmare for property owners), I very much doubt it's friendly towards the accused.

Is the internet private property? Is the city you live in private property? What about the buildings in the city? What about your office desk? The locker you use down at the local YMCA? Your post office box? The answer changes, doesn't it? So why is it a yes/no question for the internet? Some parts are. Some clearly are not. but that's just the point. Both sides (the lawless IN4MASHUN WNATS 2 B FREE internet folks vs the VE MUST HAF ORDINUNG HIER folks) are over simplifying it. And it honestly scares me how very little our members of Congress understand WHAT the internet is, much less how it works.

I looked it up. The average age of the 110th Congress is 57.0 years old (55.9 for the House, 61.7 for the Senate). Ref: http://www.senate.gov/reference/resources/pdf/RS22555.pdf
Believe me, I know age is not an absolute indicator of technical capability. I can and will send my 72 year old father into his Windows registry and not bat an eyelash. I've also seen college students who couldn't figure out how to power on a PC. BUT, for the most part, older folks tend to "not get" or even be actively hostile towards technology. I see this in my industry all the time. Old newspaper publishers still think the internet is just a fad and will go away. Seriously. And these are the people who will write the laws? No. In fact, they won't. They'll VOTE on the laws written by the lobbyists. Namely the RIAA, because it's not like the EFF is a well funded PAC. But because the Congresscritters DO NOT GET the internet, they are effectively voting blind. How is that a good idea?

Posted by: MikeD at February 7, 2012 12:28 PM

Once again, I ain't saying the law wasn't badly written. Just that some of the overwrought scare tactics I've read don't pass the common sense test either :p

But that's actually in favor of my point. In the telephone scheme, the government is searching for a needle in a stack of needles. And if it finds one, it can hunt that person down. In the RIAA's case, they can decide "this YouTube thing is awfully inconvenient, let's find a copyrighted video and pull the whole site down. The actual equivalent would be the government trying to shut down AT&T because someone (or even several someones) conducted drug sales over their phone lines. Do you question that people DO conduct drug transactions over AT&T's phone network? Do you hold AT&T liable for that fact? So why would Facebook be at fault if some of their users violate the law over their service?

Posted by: MikeD at February 7, 2012 12:34 PM

My esteemed husband has always maintained that anyone who thinks email is private is smoking crack.

What about the postal service? UPS? FedEx? Why are those accepted to be private?

More to the point, what makes them more deserving of privacy?

Posted by: MikeD at February 7, 2012 12:39 PM

It did just occur to me. If we're talking about how you should conduct yourself over the internet or email, I would treat it as public. Because the minute you give your words to someone else, they can show it to whoever they like. But I do the same with my written correspondence, photos I take, videos... anything. And honestly, I SHOULD treat the spoken word that way as well, given how easy it is to record what is said.

Which also reminds me, you can get arrested in several states for recording someone else's voice without their express permission, why are we considering it ok to lift (record or copy if you like) someone's electronic communications without their permission?

Posted by: MikeD at February 7, 2012 12:42 PM

The force of my comment was merely to suggest what a complete analogy would look like.

As a practical matter, keeping email secure is very difficult even when everyone agrees to keep it secure. Encrypted email with PGP is pretty good, but there's still a password protection issue; if your password is guessed or captured (as with keystroke capture software), you're exposed. Speaking of keystroke software, a virus on your computer can capture the soon-to-be-encrypted message as you're typing it. Even once it's sent, it exists and is stored on multiple servers, which can be physically accessed. That may not do you any good if it exists only as encrypted data, of course.

The law, though, doesn't necessarily need to take cognizance of the practical difficulties of security. We can agree -- either by passing a law to this effect, or by the courts agreeing simply to treat it so -- that we don't want email to be admitted as evidence in criminal cases unless the police have obeyed the same 4th Amendment process they would use to access physical mail. Just because it's a lot easier for the police to get access to the email doesn't mean that we couldn't introduce a higher legal bar for them to clear before they are allowed to read it and use it against you.

If -- as you say, Cass -- there is a widespread and strongly-felt moral sense about email and privacy, such a law might make good sense. It would protect our intuitions about what is just in this case.

Posted by: Grim at February 7, 2012 12:47 PM

ANYWAY... fact is, people who think RIAA wants to, or even CAN monitor every link or animated gif on every blog or web site is nuts...

This exact reasoning is why I'm not particularly enamored of the NSA being able to do this. The protection, of course, is that NSA can't act upon information improperly gathered. So even those individuals the NSA stumbles upon still receive due process otherwise it would be immediately tossed out in court. The "group" is protected by size. The individual is protected by the courts.

Under SOPA, when the RIAA does it, the "group" is still protected by size, but there would be no protections from the courts for the individual stumbled upon. Your ISP would be obligated to act (under penalty of law) and *then* your guilt or innocence would be determined.

I won't necessarily disagree that we need a electronic piracy law (although I'm not sure why existing copyright law is insufficient) SOPA was a travesty of an attempt at writing one.

Posted by: Yu-Ain Gonnano at February 7, 2012 12:48 PM

Mike:

If RIAA tried to pull Youtube down, they would be facing a backlash of unimaginable proportions. Now if it were that Piracy site (one whose sole purpose is to host pirated content), that would be a different story.

I think it's a valid point. The Scary Anecdote always conveniently features an innocent blogger whose site is brought down for a trivial infraction committed by someone else.

Given that it takes time/money/effort to scan for pirated content, such examples fail the common sense test. The Scary Anecdote is always an extreme case that no reasonable company would want to go after.

The government has not tried to shut down AT&T either. Nor will it, because the cost outweighs the benefit. Just sayin'.

Posted by: Cassandra at February 7, 2012 12:48 PM

If -- as you say, Cass -- there is a widespread and strongly-felt moral sense about email and privacy, such a law might make good sense. It would protect our intuitions about what is just in this case.

I agree, but I would prefer to ground such a discussion in reason rather than emotion. The cartoon struck me as one of those cases where the argument invites the reader to bypass critical thought. It is calculated to fire up the old Outrage-o-Meter.

As if there weren't quite enough outrage on the InnerTubes as it is :p

Posted by: Cassandra at February 7, 2012 12:52 PM

Well, as we were discussing a while ago, we often find the ultimate ground of reasoning in emotions, but the process from that first ground can be rational enough. So, if there's a deeply felt intuition that privacy is warranted here, we might start with that, and reason from there.

We might ask, for example, whether it is reasonable to want privacy at all. In a fully public society, wouldn't we have much less to fear from others? Wouldn't we be held to higher standards ourselves, and shouldn't we want to live as moral and upright a life as possible?

I think we can pretty quickly demonstrate that, in fact, there's a very good reason for private space: it protects a sphere of intimacy that is necessary for our emotional well being and happiness. There are experiences and emotions you can only be secure expressing in an atmosphere of extraordinary trust, which simply isn't possible to extend to all of humanity. Thus, privacy is a good that it is reasonable to protect.

So, is it reasonable to want our communications with intimate friends and family to be treated as private? Well, yes, for just the same reason. The protection of intimate space is good for everyone, because it allows a much better and happier kind of life.

However, we can also see that it is not an unalloyed good, because privacy is often used by criminals to do harm; and the claim that a decision is "private" may not hold if it substantially affects a third party who has a right to have his or her interests considered.

That suggests a legal regime in which privacy interests are normally protected, but not absolute. However, it's also clear from what we've said that privacy should be normal and usual among intimates; their communications should normally and usually enjoy protected status without regard to how they are transmitted. It is only in cases where there is solid reason to believe that justice requires breaching the privacy interest that we should move to do so; and that sounds like the kind of thing that 4th Amendment situations were designed to handle. Thus, it might make good sense to fold email in under 4A protections.

Posted by: Grim at February 7, 2012 01:06 PM

Reading back through the comments I think there may be a little disconect on my distinction between Public/Private.

That is Public and Private actions are distinct and independent of Public and Private properties. A whispered conversation on the courthouse grounds with your lawyer is still a Private action even though it occurs in a Public Property. A shouted conversation from your front door with your neighbor is a Public action even though you are on Private Property.

A passing cop who happens to witness a crime in the Wal-Mart parking lot observes a Public Action and needs no warrant to make an arrest even though it occurs on Private Property. But I do not think that the police have the authority to search every car in the Wal-mart parking lot at any time it wants for any reason it wants simply because Wal-Mart's Private Property is out in Public view.

Just trying to clear that up.

Posted by: Yu-Ain Gonnano at February 7, 2012 01:20 PM

If RIAA tried to pull Youtube down, they would be facing a backlash of unimaginable proportions. Now if it were that Piracy site (one whose sole purpose is to host pirated content), that would be a different story.

I will lay good money that if you gave the RIAA a legal means to shut down YouTube, they would happily pull that trigger and accept the negative press. As it stands, they're hardly a beloved entity. They sue moms whose children (and I'm not talking college age kids) download songs illegally. For hundreds of thousands of dollars. They're not exactly fluffy loveable bunnies here.

As for actual pirate sites, that's exactly what SOPA was intended to combat. Specifically sites hosted overseas that refused to comply with US copyright law. Because Sweden refused to shut down Pirate Bay, SOPA provided for DNS blocking (the same technology used by The Great Firewall of China... and no, I didn't name it that... they did) to block them from being viewed in the US.

The government has not tried to shut down AT&T either. Nor will it, because the cost outweighs the benefit. Just sayin'.

They haven't, because they can't. It's insane to think you can hold the provider liable for people using your product in an illegal manner or for illegal purposes. Gun control fanatics drool at the idea of suing gun manufacturers because criminals use their products to break the law. But for that principle to work, I'd be able to sue Bic if someone stabbed me with one of their pens. That's stupid.

And yet, that's EXACTLY what we're talking about here. Holding an entire web host responsible for content posted, not just by their customer, but by their customer's commenters as well. Look, I get it. Pirate Bay and Megaupload claim that they're not responsible for the files folks upload to their file sharing sites *WINK WINK*, and it's not fair to hold them responsible for what people do with their file sharing services *WINK... I SAY, WINK WINK*. Yes that's a legal fiction. But SOPA (and here's the really important part) and every other anti-piracy law I've seen proposed want to hold everyone to that standard. And it's simply not a reasonable one.

If you are a conscientious web host, and make an honest effort to stamp out users who upload or link to copyrighted materials, but due to the traffic done on your site (ala Wikipedia, Facebook, YouTube, etc) literally CANNOT police it all, should you be legally treated the same as a site that ADVERTISES the fact that HEY YOU GUYS!!! I CAN'T BE HELD RESPONSIBLE IF YOU UPLOAD STUFF YOU STOLE!!!? Obviously you shouldn't. But as has been said before, the Law is an Ass. And it's doubly bad when the folks who are voting for the law do not understand what it means.

Is it reasonable to hold you, Miss Cass, legally liable for something I write? Were I to link to a YouTube video that has copyright material that was not sanctioned, should you be punished for that? Earlier in this threat, I linked to a pdf. Did you bother to check what the contents of that PDF was? Did you make sure I didn't link to a PDF copy of the latest Stephen King novel? I didn't, and wouldn't. But I do not think that's a reasonable standard.

And I've not even made the suggestion of what I see as the real nightmare scenario if a law like SOPA were enacted. Under the law, if the copyright owner filed a complaint that a particular website was "used to distribute copyright material", they could have the site shut down. Without notifying the site administrator. Now lets say you host a website that competes with mine. By setting up sockpuppets (or engaging with others who also don't like you) to spam your site with copyright material during non-business hours, I could then tip off the copyright holder (or if I am the copyright holder), who could then contact your ISP, and bring your site down, or even block the DNS for all US customers. It then becomes a legal battle for you to prove that you had nothing to do with it, and in the meantime, I'm getting the business that didn't go to your site. Sure, I engaged in a criminal conspiracy, but good luck proving it. After all, I've got legal protections you don't.

Posted by: MikeD at February 7, 2012 01:43 PM

Mike,
Let's be clear here. There are two seperate issues. 1) SOPA and 2) This cartoons arguments in regard to Piracy Laws in general. They aren't necessarily the same thing.

There were some serious deficiencies in SOPA. And there are some deficiencies in the Cartoon's arguments as well.

1) The cartoon misses because it conflates "similar to" with "no right to distribute". It also leaves unspoken whether or not the mere *claim* is sufficient to act or whether a warrant and investigation has or is taking place. Those details matter.

2) Hinges on whether you believe the first of the two statements "We'll copy your email, but we won't look at it" and "We'll copy your snail mail but we won't read it. *wink*wink*" ALSO has a *wink*wink* behind it.

3) Conflates Private Actions on Private Property with Public Actions on Private Property. A better analogy may be for Cops to be looking into car windows in the Wal-Mart parking lot.

Posted by: Yu-Ain Gonnano at February 7, 2012 03:47 PM

The cartoon is a cartoon. I find it no more compelling as an argument than Bugs Bunny (less so, in fact). The fact that is does a poor job articulating it is hardly the fault of the topic.

Anti-piracy efforts are good in theory. In practice they've all been written as if by the aggrieved party looking for retribution against the world, and voted on by people who don't understand the topic. That the cartoon comes across as failing to understand what piracy IS, does nothing to change that. SOPA was one of the most recent incarnations of this. PIPA was no better, and the one coming out of Europe looks to be worse.

And if you can explain to me why an electronic mail deserves less privacy protections than a letter handled by the post office (or FedEx, or UPS), I'd love to hear it.

And finally, a cop has every right to look in your car's windows. But what they CAN'T do is dig through your phone records without a warrant. And if you think getting your list of search requests is any different than getting your phone records, I've got some nice bridges to sell you.

Posted by: MikeD at February 7, 2012 05:01 PM

And if you can explain to me why an electronic mail deserves less privacy protections than a letter handled by the post office (or FedEx, or UPS), I'd love to hear it.

Because unencrypted e-mail is more analogous to a post card than a sealed letter.

And finally, a cop has every right to look in your car's windows.

If they are looking for a particular person (or a particular crime), yes. But I'm not so sure that that would hold up in court if they cased the entire parking lot for no better reason than "for $h1t$ and giggles". (And it would likely be political suicide for the mayor and/or police chief were they to do such a thing)

Posted by: Yu-Ain Gonnano at February 8, 2012 09:27 AM

But back on my point @03:47 PM

The fact that is does a poor job articulating it is hardly the fault of the topic.

But it is largely the point of Cass' post. Why shouldn't internet "Piracy"* be treated the exact same as if it were in meatspace? What would the appropriate comparison between the internet and meatspace be?

*I use scarequotes because Piracy is not really the right word for intenet copyright violations. Real pirates don't copy stuff and distribute it without paying royalties. Real pirates kidnap, rape, and murder people for theft and ransom in a legal no-man's land.

Posted by: Yu-Ain Gonnano at February 8, 2012 09:59 AM

Real pirates don't copy stuff and distribute it without paying royalties. Real pirates kidnap, rape, and murder people for theft and ransom in a legal no-man's land.

We be a kindler, gentler brand of scum sucking scallywags these days, matey.

Posted by: Real Pirate - Accept No Imitations at February 8, 2012 10:09 AM

Ok I think I see the fissure in the discussion. If the topic is "Is piracy bad?" Then it's not much of a topic. Yes it's bad. Moving on.

If the topic is, "Does this cartoon make a good analogy for what piracy would be in meatspace?" Then it's (again) not much of a topic. No it doesn't. Moving on.

If the topic is "What IS a good analogy for internet piracy?" That's a better topic. I'd say the best analogy is someone who copies the LP they bought to cassette tape, and gives one to everyone they know (and quite a few people who they don't). Writ large, of course. The pirates aren't reselling it, they're just distributing free copies to whoever comes to take it.

If the topic is (as the subject line states) "Should the internet be a law free zone?" I think that's a absurdo ad reductio argument. The choice isn't "no laws at all" (except amongst the nutjob class) and SOPA. The problem is that the laws proposed (not just SOPA, but every law like it (to include the DMCA, PIPA and ACTA) are sweeping laws that, if applied in the real world would cause howls of outrage.

Which brings me to:
Because unencrypted e-mail is more analogous to a post card than a sealed letter.

No, it's akin to a sealed envelope. You've got a 50/50 chance of a postcard crossing your desk in a manner that reveals the text. And i'm actually pretty sure most postal employees have better things to do with their time than read people's postcards. But even so, an envelope no more stops someone who wants to read your letter, than a postcard. If you seal the envelope, it makes it HARDER, but someone who wants to snoop, can.

Unencrypted emails don't just fall across someone's desk. For me to read your email would require quite a bit of effort. For your ISP to read your email would STILL require a level of effort. Not much, but about as much as it would for a postal employee to open a letter addressed to you. Sealed envelope or no. So if it's illegal for a postal employee to open and read your mail, why is it not illegal for an ISP to do the same?

Posted by: MikeD at February 8, 2012 01:39 PM

Not much, but about as much as it would for a postal employee to open a letter addressed to you.

Or flip over a postcard. The relative difficulty in those two tasks is not the issue. A postcard is a public form of communication and you know that when you use it. An envelope hides the text from plain view. It signifies your desire for the text to not be for public consumption. It is possible to deliver a package and not know what is inside.

Since email is really just a big game of Telephone it is a pretty public form of communication. They can't transmit it if you don't give them the message. Your only privacy is in giving them a message that only your intended recipient can understand.

Posted by: Yu-Ain Gonnano at February 8, 2012 03:55 PM

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