Regulation & Resistance
One of the hardest concepts for the legal field to grasp, it seems (at least in America) is the concept that something might be out there, and it might not be subject to any real sort of regulation. The Internet and the world of computers can often be strange places, anyway, and attempts to regulate them can make them appear even stranger.
Consider the TIVO case, where a rival was found to be infringing on patented technology. Without so much as a by your leave, data was wiped from users’ hard drives. Yet not one door was knocked on, and no one was asked to turn their hardware over or anything of the sort. Instead, like a thief in the night, users’ data was simply wiped. No fuss, no muss.
No harm, no foul?
And what did the users think? Had they even read and/or understood any information they were given about this wholesale wiping? How many users complained about lost data? Did any shrug and blame the technology, not realizing that what had happened was all a part of a legal settlement?
If the technology had not existed, or at least had not been so easy and clean to implement, what would have happened instead? Certainly it would have been harder to enforce the settlement. But that’s been the case for the hundreds (if not thousands, by now) years of jurisprudence. Settlements, court orders, and judgments often aren’t so easy to implement. That is not necessarily such a bad thing. Convenience isn’t always a benefit.
As Lessig, L. (2006). What things regulate. In Code: Version 2.0 (pp. 120–137). New York: Basic Books. [Link |PDF] points out, “We should worry about this. We should worry about a regime that makes invisible regulation easier; we should worry about a regime that makes it easier to regulate. We should worry about the first because invisibility makes it hard to resist bad regulation; we should worry about the second because we don’t yet—as I argue in Part III—have a sense of the values put at risk by the increasing scope of efficient regulation.” (Pages 136 – 137)
What happens to our society when it’s fast and easy to just jigger OnStar and listen in on conversations? Do we lose something when we can grab camera footage from tollbooths and match it to license plate images to names to Facebook accounts to tax rolls online? Do search warrants look like yesterday’s news? Or are they needed more than ever?
As early as November of 2003, the FBI was already trying to use OnStar as a surveillance device. cNet reported at the time that the Ninth Circuit Court of Appeals had ruled that the FBI could not use OnStar that way.
But the finding wasn’t based on privacy concerns; it was contractual, as in the usage was not a part of the generalized agreement between car owner and OnStar provider (General Motors).
In 2011, OnStar felt the need to go to YouTube to reiterate to their customers that they can’t listen in without a customer knowing about it. They further explained that customers can always opt out.
Centralized control of electronics isn’t confined to just TIVO and OnStar. Appliances are also becoming the kinds of consumer goods that are black boxed, and made more difficult for the average tinkerer to repair or even understand. I have little electronics knowledge, yet I can set up a PC or a printer, and I can swap out a battery. What happens when even these more simple tasks are relegated to only a centralized control system? Of course the first thing that can happen is to charge for every sales call, and monetize basic repairs and upgrades.
As Zittrain, J. L. (2008). Tethered appliances, software as a service, and perfect enforcement. In The future of the Internet and how to stop it (pp. 101–126). New Haven: Yale University Press. [Link | Whole-book PDF | Other Formats] says, “A shift to smarter appliances, ones that can be updated by – and only by – their makers, is fundamentally changing the way in which we experience our technologies. Appliances become contingent; rented instead of owned, even if one pays up front for them, since they are subject to instantaneous revision.” (Page 107)
What is most fascinating to me is that we have become a far less tractable culture. We aren’t passively consuming entertainment and information as much as we are now making it. We are content creators, many of us, rather than being content watchers and listeners. Yet this push to centralize appliance and consumer electronics repairs and upgrades seems to fly in the face of that. But Zittrain said it best, “In a world where tethered appliances dominate, the game of cat-and-mouse tilts toward the cat.” (Page 113)
Centralizing repairs and adding a kind of black box-style mystery to computers and similar devices is the kind of thing that happened with automobiles about a century ago. According to Kline, R., & Pinch, T. (1996). Users as agents of technological change: The social construction of the automobile in the rural United States. Technology and Culture, 37(4), 763–795. [Library Link], “In addition to providing a stationary source of power, cars found a wide variety of unexpected uses in their mobile form. Farm men used them as snowmobiles, tractors, and agricultural transport vehicles.” (Page 776)
But people don’t do that anymore; at least, it’s not so common outside of the Third World.
And so some good questions to ask are – is our ingenuity being squelched in worship of the almighty god of convenience? Is our liberty being compromised because law enforcement doesn’t have to get its hands quite so dirty, or take so many risks? What are we losing in the process?