Law in the Internet Society
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In the Land of the Eyed, the Blinded Man is King

-- By EricWest - 17 Jan 2015

I. Introduction

You walk into a church confessional. “Father, I’m going to kill a man. I have the plan, I have the gun, as a matter of fact, he’s waiting in my trunk!” Your private conversation with God, courtesy of the clergy, will have you arrested shortly. Yes, there are some things that are guaranteed as private, and are not really “private.” One solution to this, at least in the tech world, is blinding-the-eyes. A host will create a mechanism that prevents her from monitoring or even knowing the content being passed between users (Peer-to-Peer usage). This lets the host’s users do as they please, securely. It could be used for file sharing, or for messaging. I will argue that such eye-blinding should be allowed.

II. When We Should Allow Eye-Blinding

a. A Unique Circumstance

First, few industries are obligated to keep track of their clients’ actions. An example of such responsibility would be casinos or bars, in these situations, service to the client is turned down in consideration of harm to the client and others. Insurance companies, by contrast, make money by assuming responsibility for their clients’ actions. In that sense, they need to collect information about what their clients do to price out the risk and to see if the client behaved beyond the bounds established by contract. In this example, observing clients has to do with profitability. But I can think of only two examples outside of the tech world where an industry is premised on keeping track of its clients for the sake of law enforcement to make sure they clients are not breaking the law, and that is the parole and prison systems. In those situations, the “clients” are not even the actual clients – taxpayers and the state and federal governments are the clients – and those people who are observed are already found guilty of a crime. Therefore, I find this obligation to watch your clients – in the tech world – unfounded.

b. Protest

A company may disagree with the government’s agenda of being able to see everything, companies should have the right to peacably protest such policy by removing their archival information from the equation. In other words, a company encrypting its P2P? messaging to a level beyond which it can “crack” is not making it impossible for the government to track user interaction, it is merely putting the onus on the government to resolve how to do it, because the company refuses to take an interest in observing interactions. If the government has an interest in two people’s conversation, it can put the computing power into unraveling their conversation, after it first identifies those two people as worthy of observation. This means that the wide nets – waiting for trigger words like “president - attack; tails operating system” – to catch an NSA computer’s attention will not work. The government may say this is an obstruction of their ability to enforce the law and ensure safety, and they would be right, and furthermore, although one does not always have to be able to observe and report the actions of others to the government, when they engineer transactions and communications (file sharing, messaging) they have a heightened duty. This is pure bullshit, though. There is no fundamental duty to help the government see everything, and the right to protest the government’s all-seeing eye should be legally protected, as a matter of fact, the right to protest is a fundamental protection. Without it, how does one stop the administrative state? Indeed, it gets to the heart of democracy when both leading parties are in favor of online security and increased government surveillance, what voice is there besides that of protest?

c. What about the Risks

Some may argue that locking out observation creates a breeding ground for bad and illegal behavior. Imagine a messaging service where messages were guaranteed private, oh what a field day the terrorists would have. With easier planning, how the mighty will fall! Indeed, this could very well be a consequence. To what extent? It is uncertain. If one were to say “any increase in illegal behavior would be too much,” I think it important to note that the government can still observe such illicit behavior by other means, and removing a few arrows from the police-state’s quiver for the sake of freedom of expression is long overdue. Moreover, it is important to consider that the government has enough arrows already.

III. If Eye-Blinding is Allowed, “Conversation” Changes.

It would be odd if a government agent could stand between two people having an in-person conversation. However, we accept that the government can have access to our phone records because it is a reasonable expectation that when using a phone we know someone is observing that the phone call occurs. Smith v. Maryland, 442 U.S. 735, 743 (1979). What happens if that expectation is taken away though? With eye-blinding, the expectation of observation is gone, so should the file transfer or private message not be likened more directly to an in-person conversation? Eye-blinding is the next step after zero-marginal cost conversations: since it cost us nothing to send the message, there is no reason anyone should be watching it. As a matter of fact, it probably cost—in almost every sense—less than having to have the conversation in-person. The question is raised: can the government lose the right to observe a medium because the reasoning that allowed for its observation is lost? That depends on whether you think as technology progresses, our means of interfacing on it become more like ordinary communication, or less. Although the means operate differently (using thumbs to type morphemes and select pictures on a tiny computer box versus forcing air through flapping meat pipes), economically they are similar in how low their costs are and how private they seem. Because of this, the government should not have the right to observe conversations that are eye-blinded.

Subsection A

Subsection B

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r1 - 17 Jan 2015 - 02:55:15 - EricWest
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