Apple’s ‘Code Is Speech’ Argument, The DeCSS Case, And Free Software

In its ongoing battle with federal law enforcement agencies over its refusal to unlock the iPhone, Apple has mounted a ‘Code is Speech’ defense arguing that “the First Amendment prohibits the government from compelling Apple to make code.” This has provoked some critical commentary, including an article by Neil Richards, which argues that Apple’s argument is “dangerous.”

Richards alludes to some previous legal wrangling over the legal status of computer code, but does not name names. Here is an excerpt from my book Decoding Liberation: The Promise of Free and Open Source Software (co-authored with Scott Dexter) that makes note of a relevant court decision and offers arguments for treating code as speech protected under the First Amendment. (To fully flesh out these arguments in their appropriate contexts, do read Chapters 4 and 5 of Decoding Liberation. I’d be happy to mail PDFs to anyone interested.) Continue reading

Nice Try NSA-Defenders (Not!)

There are two very bad arguments and one rather illiterate confusion making the rounds in the wake of the NSA surveillance scandal. I’ll consider each of them briefly.

First, we have the ‘it was legal’ argument: the surveillance was sanctioned by the Patriot Act, approved by FISA courts, and Congress was in the loop etc. Now, the elementary distinction between legality and morality, between what the law permits and proscribes and what we might consider the right thing to do is just that: elementary. The undergraduates in my Philosophy of Law classes don’t need to be introduced to the distinction between natural law and positive law or to the assigned readings which inquire into our supposed obligations to the law to understand and know this difference. Their lived lives have given them ample proof of this gap as have the most basic history lessons. (Slavery is everyone’s favorite example but many more can be found rather easily.) Indeed, why would we ever have impassioned debates about ‘bad laws’ that need to be revised if the ‘it’s legal’ argument was such a clincher?

Furthermore, the folks complaining about the NSA surveillance are not just complaining about the legality of this eavesdropping and surveillance: they are suggesting the application of some laws is an onerous imposition on them, one that grants the government too much power. They are suggesting this is a moment when the laws of the land require revisitation. This is especially true of the obnoxious Patriot Act. (In another context, consider the draconian Digital Millenium Copyright Act.) Or consider that FISA courts routinely approve all requests made to them, and that the NSA has seven days in which to mine data before it applies for a warrant. All of this is legal. Is it problematic? We could talk about it so long as we aren’t shut up by the ‘its legal’ argument.

Second, we have the vampire ‘if you have nothing to hide, then what do you have to worry about’ argument – it simply refuses to die. No matter how many times it is explained that privacy is not about the hiding of secrets but about the creation of a space within which a certain kind of human flourishing can take place, this hoary nonsequitur is dragged out and flogged for all it is worth. But let me try real quick: we need privacy because without it, very basic forms of life would not be possible. An important example of this is the personal relationship. For these to be built, maintained and enriched, privacy is required. We do not generate and sustain intimacy–emotional and sexual–under observation and analysis; we do so far away from the madding crowd. I am not doing anything illegal or secretive in the maintenance of my personal relationships but I would still like their details to be private. Hopefully, that’s clear. (Who am I kidding?)

Lastly, there is a dangerous conflation between paper records and electronic records. For instance, David Simon, the latest to join the ‘relax, its legal and being done to protect us’ brigade, runs an analogy with the Baltimore wiretaps carried out by the local police and concludes:

Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual.

Except that it doesn’t. Those ‘sheets and sheets’ do not correspond to the billions of digital records obtained from Verizon, which can be stored indefinitely and subjected to data analysis in a way that the hard-copy data cannot.

These arguments will be made again and again in this context; might as well get some brief refutations out there.

The ‘Long Live the Paper Book’ Argument Needs To Mention DRM

Justin Hollander’s defense of the traditional paper book  (‘Long Live Paper’, New York Times, 10 October 2012) is well-meant but given the severity of the challenge it faces from e-books, it is a relatively milquetoast argument. It gets to the nitty-gritty late, and as such is unlikely to convince those enamored of their convenient, pocket-stuffing e-readers. What could possibly be the downside to the idea a student could go to school with an electronic backpack that weighs–and might cost–a fraction of the traditional one? Five hundred books in that e-reader of yours, imagine that! And the price would surely fall as well. Right? (Not quite: current pricing models show the publishing industry prices e-books quite closely to physical books.)

Hollander addresses some of these claims but still only goes part of the way in critically addressing the supposed promise of e-books.  One good way to  compare a technological innovation with an older technology is in the relevant technological dimensions: in their affordances and features. For instance, a book is easily sharable; it can be thrown about a bit; you can stuff it into your pocket, you can even spill a little water on it; and so on. Or consider accessing the information contained therein. Readers know accessing a particular piece of information in a book is never too hard: page numbers, bookmarks, indices did most of the work required quickly. How easy is it to get to page 155 in an e-book? Are e-indices as easy to use? (Along these lines, one of Hollander’s best points is to note the dependency of e-books on power supplies.)

In the case of comparing the two technological objects at hand–the paper book versus the electronic book–the primary issues remain their facilitation of information sharing. Thus, access, sharing, distribution and interaction should be our primary axes of interrogation, ones that make this debate more substantive. For instance, can the publisher restrict the number of people who can read a e-book? The physical copy of the paper book can only be read by one person at a time but sharing is quite easy even if limited by copying difficulty. The advantage of a digital book is that it can be easily copied and read by more than one person. But this can be restricted. The cost of transmission to a remote reading partner in an e-book is negligible. If this aspect of the e-book is restricted, then what happens to one of its primary advantages over the dead-tree version? How about annotation? To annotate a book, you must scribble in the margins, or underline or highlight destructively. In the case of a digital book, edits and annotations can be made in the margins but their length does not have to be restricted. These annotations can be hidden so that other readers of the book are not inconvenienced. Will e-books meant for scholarship and study facilitate tools for annotation?

It seems that the gorilla in the room, as far as Hollander’s Op-Ed is concerned, is digital rights management (DRM). Consider the restrictions raised as possibilities above. They are part of the e-book future, for they are certainly part of its present: restrictions on the number of readers, on the number of times it can be opened, whether it can be written to, whether it can be printed or not. DRM offers publishers to lock up books in ways that go beyond copyright law (and it affords them the protections of the Digital Millenium Act ((DMCA)). To introduce e-books as a replacement for paper books is to also potentially introduce a form of control in a zone that does not showcase it yet.

A move to digital books is only a good one if e-books fully utilize the virtues of their digital format. If the only advantage to be drawn on is that of cost while access is ignored or only selectively drawn on, then the bargain is going to be a bad one for the most important figure in this whole picture: the ‘consumer’. Er, the reader.