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22 May 2014 : Technology vs The Law #
Broken CD image by omernos The problem with technology is that it has created a new and unique power struggle; a struggle that the law has found itself on the wrong side of. The legal bullying of Ladar Levinson that ultimately resulted in him having to shut down his company Lavabit, is a nasty symptom of the way the law reacts when it feels threatened.

I won't go into the details here, but recommend you take a look at Levinson's description of what happened in his Guardian article.

How can the legal system have got so fucked up that this can happen? How is it - to use Levinson's words - that he can find himself "standing in a secret courtroom, alone, and without any of the meaningful protections that were always supposed to be the people's defense against an abuse of the state's power"?

To understand this, we need to figure out where the law gets its power from. The nature of the law has always been inextricably linked with power. It's the people in power who define the laws and this gives them credibility through process (although it doesn't give any guarantee that the laws are just). How do you get to be in power? If you're lucky, you might live in a country where there's a process for this too. In the US they exercise what they call democracy (it's not exactly what I'd call democracy, but it's still a lot better than what we have here in the UK). Still, the legitimacy of the process is really seeded elsewhere: it's a redistribution of powers granted conditionally by those who are physically most powerful. Some might say the legitimacy comes from something like the constitution, but in practice the legitimacy of a constitution comes from the war that was won beforehand. Without the demonstration of superior power, the constitution would have rather been just a manifesto put together by a bunch of terrorists.

All laws are founded on power and all power is founded on force. Except that technology has a tendency to destabilise this equation. Take guns (I'm not a big fan of guns in practice, and I'm going to conveniently classify them as technology for the purposes of this argument). Guns have the potential to be an amazing leveller. Prior to their introduction, the force behind the power was premised on physical strength and numbers. Suddenly with guns physical strength becomes an irrelevance. And this isn't just about the advantage of being the first to have one. If everyone owned a gun then actual physical strength would no longer be a consideration since everyone would have the means to end another person's life at the click of a button. I'm not advocating this as a wise move of course (just think what would happen if there was a "Terminate user" option next to the "Report abuse" link on YouTube), but it does illustrate the point.

The law is ultimately reliant on physical force for its legitimacy. Not only does it rely on political power (which is underwritten by force), but it also uses force as its last-resort sanction. There are many intermediate sanctions (removal of money and property, restrictions of rights, threat of surveillance, storing details on a database...), but if these fail, or if someone refuses to submit to them, the ultimate sanctions are incarceration or death, both of which are physical threats. And it's not just legal outcomes, but also the legal process that relies on the threat of physical force. During an investigation, if someone refuses to comply with a search warrant, the police are within their rights to break down the door. Take away the physical threat and you leave the law impotent.

New technologies, and especially encryption and distributed networking technologies, pose a real threat to this. While you can break down a door with a sledgehammer, you can't decrypt an encrypted message by smashing open a computer. If the encryption is done right, you can't decrypt the message at all: you're fighting against the laws of nature and mathematical axioms*. Up until now, the solution sought by the law has been to go after the encryptor rather than the encryption (take for example RIPA in the UK). But technology is nibbling away at this too. Distributed technologies support actions that have no single enactor; information and processes that don't belong to anyone. You can't pursue a physical protector if none exists.

The events surrounding Lavabit and the actions of the intelligence and police services uncovered by Edwared Snowdon demonstrate a response by the law to try to address a threat which is conceptual rather than physical. The growing realisation that physical solutions can't work has led to laws and processes that were designed to protect being contorted into tools that many people no longer recognise as just.

Unless the law can find new ways to deal with the conceptual threats to its processes that new technologies have introduced, the temptation to become increasingly draconian will remain. There need to be new solutions that don't amount to "if we can't attack the problem with physical force, we'll attack an innocent bystander instead."

On the other hand, individuals will continue to invest in more robust cryptography and make more widespread use of distributed technologies (by which I absolutely do not mean the Cloud!) as a way of preserving the privacy and (ethical) rights that recent events suggest the law has started taking away.

* May be subject to change.


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