Technology as Security
McCullagh, Declan, Harvard Journal of Law & Public Policy
It has become fashionable to fret about whether developments in technology have outpaced the law. To continue the metaphor, athletic Internet entrepreneurs are racing against stately, but plodding, courts and legislatures. The University of Michigan Law School has sponsored a symposium subtitled "Is Technology Outpacing the Law?" (1) Former Attorney General Janet Reno claimed in June 2000 that the Microsoft antitrust case proved to be a "strong reaffirmation" of antitrust law's ability to keep up with technology. (2) A commentator has described the 1998 Digital Millennium Copyright Act as "only about keeping up with technology." (3)
But truthfully, technology has begun to supplant law, and at an accelerated pace. (4) Contrary to conventional wisdom, this may be a welcome and inevitable development. Instead of protecting rights such as privacy, free speech, and copyright through legal means, more people are turning to technological protection methods. To guarantee liberty, mechanisms such as public key encryption and anonymity-providing "dc-nets" (5) rely on the equations of mathematics and not the whims of courts and legislatures.
Congress may, for instance, allow police to wiretap more easily or reduce the requirements for warrants. Judges may rule works like James Joyce's Ulysses to be obscene, then reverse positions a generation later. (6) But the laws of mathematics do not vary based on the whims of government officials or shifts in public opinion.
This view is somewhat controversial. Freedom fighters using encryption to conceal their communications from Burma's brutal military junta may applaud technology's rule, but the FBI warns that the widespread use of encryption allows terrorists, drug smugglers, and child pornographers to evade law enforcement. (7) Anonymous publishing tools may cheer whistleblowers, yet provide little legal recourse when malicious lies are spread anonymously. Although copyright protection mechanisms may hinder piracy and reduce costs to consumers, librarians and civil libertarians argue that fair use rights will be lost in the process. (8)
A loosely organized group of essayists, activists, and programmers called the "cypherpunks" has been a fierce champion of a technology-over-law approach. Using a mailing list (9) and a smattering of physical meetings around the globe, they have developed technological tools to protect privacy and free expression in areas where they feel the law does not. (10) A 1988 essay written by "cypherpunks" co-founder Tim May explains it well:
Computer technology is on the verge of providing the ability for individuals and groups to communicate and interact with each other in a totally anonymous manner. These developments will alter completely the nature of government regulation, the ability to tax and control economic interactions, the ability to keep information secret, and will even alter the nature of trust and reputation. (11)
As it turns out, May's prediction was premature. Technology has not forced governments to rethink their tax systems, and government regulation has not changed dramatically in the last ten years. But, May was one of the first to point out the powerful possibilities of protecting rights through technologies such as encryption and anonymity. (12)
Consider copy protection technology. Content owners, distributors, and publishers fret about how relatively easy online distribution methods will encourage copyright infringement and reduce sales. (13) They have reason to worry. As bandwidth increases and distribution technology improves, the cost of reproducing intellectual property could begin to edge toward zero. Everyone likes getting something for free, and piracy has always nibbled at the edges of publishers' and distributors' profits. But it is far easier and cheaper to copy an MP3 file than to photocopy a Tom Clancy novel, and digital copies--unlike their analog counterparts--do not diminish in value. …