(09/28/04)
Technology has changed quite a few things in the last few decades. I could talk all day about how business models, politics, journalism, language, and culture have changed in the face of the Information Age, but I'd rather talk about how the legal world needs to catch up.
Intellectual Property
Any regular joe can steal quite a bit of intellectual property very easily. I'm not just talking about copyrighted music or movies or even ebooks. People can steal trade secrets far more easily than they could before. Imagine an account manager for a supplier of some wholesale goods who gets laid off. On his last day, he runs a query and download the contact information of every customer the company has ever had, and emails it to himself. He brings this customer list over to his new employer, a direct competitor, and uses this contact information to steal customers. In fact, this happens quite often. And that's relatively benign compared to theft of business practices, training materials, secret formulas, etc.
Current legislation makes it difficult to prosecute harmful intellectual property thieves while the liberties of individuals are severely limited. "Fair use" by ordinary American consumers is under attack, but the big players in Asia and elsewhere who actually make money off IP theft won't be touched. The guys who sell Playstation games for $5 each in shady malls in Malaysia have little to worry about, but 12-year-old Timmy in the United States can't back up his Halo CD in case it gets scratched up because his XBOX won't play burned games, and he commits a crime by modding it.
Criminal Investigations
Rules concerning searches, seizures, warrants, wiretaps, etc. are ill-suited for criminal investigations involving internet-related crimes. Imagine this scenario: Alice in Kansas City hacks Bob's computer in Jacksonville and launches an attack on a Los Alamos server. Federal investigators only know that the attacks came from Bob's computer. They subpoena Bob's hard drive. The investigators then analyze his computer thoroughly to look for clues as to where the attack originated. Bob, a music lover, has ripped mp3s from his personal CD collection. However, Bob, not knowing much about computer security, leaves the files in his shared documents folder, and inadvertently shares the files with the world. The investigators wrongly suspect that Bob is the culprit behind the Los Alamos hack attack, and decide to prosecute Bob for the mp3 sharing because they've hit a dead end in the investigation. The court admits the evidence saying that the hard drive data was subpoenaed in accordance to the rules.
Meanwhile, the wiretap requirements are totally broken in the context of email, VoIP, Wi-Fi, and wireless phones. In U.S. v. Councilman, a federal court of appeals ruled that a company reading emails between its customers and a rival were ok, since the emails were stored on the server and not intercepted en route. Anyone who knows anything about the internet knows that this is an absurd distinction. Wi-Fi communications are considered radio communications, which are open to interception and analysis; wiretap restrictions do not apply.
And what about cases where a computer user refuses to provide the password to encrypted files? A criminal could simply keep his own computer totally off limits to unauthorized access, and an investigator would have no technical solution to this problem, short of brute forcing the decryption (assuming that the investigator has thousands of years to spare).
International Law and Treaties
The internet is full of unregulated speech. How does a country restrict the transfer of information in the internet? Even developed countries that value free speech rights regulate the transfer of information. Here in the U.S., it's illegal to issue threats, publish military secrets, steal intellectual property, publish certain classes of obscene material, or publish unsubstantiated libel. The Justice Department already has its hands full with this stuff originating from the U.S. What can they do about hackers in China? What about threats issued from some random guy in Pakistan? An American who anonymously posts weapon designs on a Russian server through intermediary computers in Sweden, Ukraine, India, Singapore, and Hong Kong? Physical location doesn't matter on the internet, but it does matter when certain legal issues arise. Will every other country work with American law enforcement? Doubtful.
Science Fiction Stuff
I was wondering about some really far-fetched scenarios involving technology and liability. What if someone invented true artificial intelligence that could pass a Turing test? If this AI entity suddenly decided to commit crimes, would the inventor be held liable? What if it was an open-source project, and no one person could claim to be the inventor? Speaking of open-source, what if the open-source movement takes off and software becomes truly free? Who would be responsible for product safety? What if cars became like computers, simply sold as boxes, with the software to be fully customizeable with competing operating systems, etc? If the open-source chauffeur software of a self-driving car is buggy and drives the car (with a passenger inside) off a cliff, will there be anyone to sue? If someone unjustly caused the "death" of a companion robot, could the owner of the said robot sue for more than the market value of the robot, similar to what happens today for wrongful death of pets?
Anyway. I have too much time on my hands. I guess this is what happens when one trained in Electrical Engineering and Philosophy chooses to ramble on his website. But seriously, ignore the science fiction stuff and you have some thought-provoking issues in law today.
Links:
Wired
Magazine: Free vs. Unfree - A good look at how the world regards
intellectual property today.
Newsweek:
Wiretapping the Internet - A few details about law enforcement and
privacy on the Internet.
Digital
Evidence and the New Criminal Procedure (Scroll to the bottom and
click "Download Document from SSRN") - This is an excellent
read, even for a layman like myself. It addresses the inadequacy of
the current rules concerning criminal investigations.
