Technology as Security

By McCullagh, Declan | Harvard Journal of Law & Public Policy, Fall 2001 | Go to article overview

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Technology as Security


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.