Saturday, December 13, 2008

Lori Drew vs. Rule of Law

Geeks are up in arms over the Lori Drew verdict. It stretched the meaning of the Computer Fraud and Abuse Act (CFAA), which outlaws hacking, to also mean any violation of a website's Terms of Service (ToS). (Lori Drew had created an account on MySpace using the pseudonym Josh, which violates their ToS).

The chilling effect of stretching the CFAA is certainly important, but a more basic issue is the way this challenges the "Rule of Law".

One of the foundations of free society as we know it is something called the "Rule of Law". The rule is that law applies equally to everyone without prejudice. The law applies to our leaders just as much as the common man, and the common man won't get lynched by a mob. The rule of law is hostile to both a dictatorship as well as the anarchy of mob rule.

The Lori Drew case is the foulest example of mob rule. A tragedy happened, a teenage girl committed suicide after being "cyberbullied". No law was broken, though. Lori Drew wasn't even the main "bully" - it was her daughter, and daughter's friends. Yet, the mob demanded "justice", so the prosecutors stretched the law in order to haul her into court and lynch her.

Unfortunately, geeks support the concept of mob rule - they just disagree which law was chosen. Geeks regularly violate the ToS of websites. Geeks frequently create accounts under pseudonyms. The understand why using the CFAA to convict Drew was a bad idea. They just wanted a different law to be chosen, one that didn't impact geeks. When the case first hit the press, comments on the geek news site "Slashdot" seemed in general agreement that some means needed to be found to "make that bitch fry".

The disrespect for the rule-of-law stems from our culture. There are many TV shows based on courtroom drama. The "rule of law" is frequently ignored - we don't want the laws applied fairly. We want the laws to be prejudiced toward the protagonist of the show.

I watched "Batman: The Dark Knight" on my last airplane flight. In the movie, Batman tortures the Joker and wiretaps everyone's cellphone in order to combat terrorism. Why is this ok for Batman, but not for George Bush? It's because Batman is our hero, and Bush is not.

Bush himself has damaged the credibility of the rule of law. He arbitrarily labeled American citizens as "enemy combatants" to deny them habeus corpus. He hired/fired Department of Justice lawyers to fulfill political ends. He wants amnesty for telecommunications firms that broke the law. The issue is not that any of these things were bad, the issue is that Bush applied the law arbitrarily.

J.K. Rowlings "Harry Potter" series is a great example of the pop culture disrespect for the rule of law. In her books, Harry Potter and other protagonists commit egregious acts for purely malicious reasons. Yet, because they are "the good guys", they are held to a different standard. Personally, I was rooting for the antagonist (Voldemort).

Geek culture is intensely political, yet they don't seem to have a political philosophy more complex than always rooting for the underdog. All geeks support the EFF (Electronic Freedom Foundation) for their support of electronic freedoms. Yet, the EFF has no "manifesto" of what those electronic freedoms should be. They support both the idea that "code" is a form of speech that should be free, but also that "code" should be regulated by the government. It all depends upon whether it's the little guy we are talking about or a large corporation. Yet, these are the same thing. I quit my job and started writing code in my apartment ten years ago that has now become a billion dollar business within IBM, a very large corporation. Regulation of that code should not depend upon whether it was just me trying to sell that product, or IBM.

So yes, we should seek clarification of the meaning of the Computer Fraud and Abuse Act, but that should be secondary. Our primary political fight in the Lori Drew case should be against the purely arbitrary application of the law, which offends the very basis of our society.


Andre Gironda said...

Suggestion: Kill yourself over the Lori Drew case decision and have the United Nations go after the US DoJ for violating the ToS of the Internet.

Jk... nice post... enjoyed the read.

Rafal said...

Well written, and makes some very interesting points.

Yes, we do look at the application of law arbitrarily. Ask any self-professed "hacker" and the application of law to things like the RIAA's copy-protection is bad, but reverse-engineering explicitly protected code is not?

In an interesting case... ask yourself how you would feel in this situation - a piece of malware (presumably covered by the DMCA) is wreaking havok on users... is it OK to reverse-engineer the piece of software to the end of stopping it? Do the ends justify the means?... tough questions.

Nate said...

I thought the same thing when I saw that Batman movie. It almost seemed like blatant propaganda for violating the Constitution. I wondered if it was "product placement" for America's current policies. Definitely not a welcome theme.

Robert Graham said...

DMCA is a bad law, but it doesn't impinge upon the rule-of-law. It clearly states that reverse-engineering DRM is illegal.

A "rule-of-law" issue would be is some people were able to circumvent DRM, but others weren't. Another "rule-of-law" issue would be if it were used to prosecute people for reasons that had nothing to do with the original intention of the bill.

Also, the DMCA has explicit permission to revers-engineer for security. Thus, malware cannot hide behind the DMCA to prevent reverse-engineering.

Marc-Andre said...

Nice article Robert, i understand that the law did not help in this matter, but don't you think the parents should be more involved in their children's use of a computer at home, i mean 10 years ago there was no social networking sites, and i believe this kind of incident occured, even with IRC it was dangerous.

the parents should be more concious of their children's use on the internet, since internet is even more hostile than the past 10 years.

Marc-Andre said...

The story @ Wiki which i read, to understand.