http://www.linuxplanet.com/linuxplanet/opinions/3642/1/
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.comment: The Digital Millennium Rape Act
What to Expect
Dennis E. Powell
Monday, July 23, 2001 02:23:15 AM
WASHINGTON -- Federal law enforcement officials today began rounding up men for alleged violation of the new Digital Millennium Rape Act.
The law, which went into effect June 30, bans "possession of any item or device that makes it possible to commit the crime of rape." It was approved last month by a narrow margin in both the House of Representatives and the Senate following intense negotiations during which a provision was added which excempts government employees, including senators and representatives, from the new law. The legislation was necessary to bring the U.S. into compliance with a treaty negotiated in Japan two years ago by the Clinton administration, but thusfar unsigned by any country. International pressure on the U.S. to sign the accord was intense, however, coming especially from the European Union and many non-European third-world nations. The treaty specifies actions that the United States must take, making no mention of other nations.
"This landmark legislation serves notice on all would-be rapists: If you've got the equipment, we'll lock you up," said the bill's sponsor, Sen. Barbara Boxer (D-California), immediately after its passage.
Critics of the bill argued at the time that mere ability to commit a crime should not itself be a crime, but were overwhelmed by an intense public relations campaign mounted by proponents. Among the existing laws cited in defense of the bill were federal gun regulations and the Digital Millennium Copyright Act, which make possession of firearms and software, respectively, illegal.
"If you can do the crime, you will do the time," said Boxer. " This is a crime prevention measure -- by the time someone has actually committed an offense, it's too late."
Silly, Isn't It
The above is not real -- if you thought it was, get help at once. But it's a demonstration of the direction in which things are headed, and unless this trend is seen as a whole, there's not a chance of stopping it, if indeed a chance of stopping it still exists at all.
Monday's arrest of Dmitry Sklyarov for violation of the Digital Millennium Copyright Act has outraged many in the hacker community. Skylarov, who it is now reported also sold password-cracking software to the FBI, is accused of making it possible to circumvent certain technology owned by Adobe Systems Inc. Note that he is not accused of having employed this software to circumvent that technology but merely of having demonstrated that it can be done.
As readers of this column cannot have escaped noticing, there is no one louder in defense of copyright protections than I am. But there is a difference between the ability to violate copyright and actually doing so.
The community is enraged, but the rest of the world doesn't give much of a toot, one way or the other. Sound familiar?
That is how totalitarianism is achieved. You pick a fairly small, even fringe, community, and you use them to create the underpinnings for what could result in far broader controls. There's no broad outcry, because people figure it doesn't effect them, and they're too busy worrying about the truly important stuff, such as how the Yankees are doing.
You may think that what follows is some kind of right-wing rant from out in the fever swamps, but hear me out.
In the early 1930s, organized mobs were shooting each other to pieces. Something, it was agreed, needed to be done. Thus, a law was passed banning things like fully automatic weapons and sawed-off shotguns. No one shopped to think that shooting people was already illegal, so the chances were few that mobsters would say, "Oh, my! It's illegal to have this tommygun. I guess we'll have to stop bumping people off." Mob rubouts continued, though only really well organized, successful outfits could afford good weapons; making them illegal drove up the price. Everybody else had to use knives, piano wire, and bombs under the driver's seat.
In the 1960s, a president was shot and killed, apparently with a cheap Italian 6.5mm military rifle purchased through the mail. In his infinite wisdom Sen. Thomas Dodd (who later left the Senate under a cloud of scandal) decided that the problem here was the means whereby Lee Harvey Oswald had gotten the weapon. The nation, which has never paid all that much attention, said, "Fine, go ahead," and a law was passed which banned such sales. All this did was drive the price of firearms up. The murder rate -- and at some point we must consider that this was the problem supposedly being addressed -- went up, too.
The country never stopped to consider that the problem is the intent to commit a crime, and the carrying out of that intent, rather than the ability to do so. More important, nobody ever stopped to note that absolutely everyone is capable of committing crimes, and no amount of legislation will ever change that. If you have decided to kill someone, you will kill that person and there's no stopping you. Besides, killing someone is already illegal -- how much attention are you going to pay to lesser offenses?
To the extent that this fact was raised, the response was weak, but enough: Well, nobody really
needs these weapons. And the laws are to protect us, right?
True. But there are a lot of things that nobody really needs, but that can be used for evil purposes. Computers, for instance.
Why This Is Pertinent (
p. 2)
There is no doubt that some readers are incensed by the example I've employed. They've bought into the control argument without giving any thought to its logical conclusions. Those conclusions involve the fact that it's impossible to favor control of one item because of what might happen unless you're prepared to accept that argument for
all items because of what might happen.
The "community" gets its undies in a twist whenever it's suggested that legislation is necessary to protect children from the unsavory influences of the Internet or of AOL chatrooms. Anyone who favors controls can point to incidents at least as inflamatory as those employed in gaining acquiescence to laws limiting gun ownership. Children have been lured from virtual chatrooms to real rooms in tawdry motels by predatory perverts. Children who read the -1 comments on Slashdot will be exposed to things that are unfit even for adults. Children can find lots of things on the Internet that no one could favor their finding. All it will take is one really high profile case to put computers in the same class of infernal device to which guns have already been consigned.
(Additionally, the established news media, whose influence has been diluted by the emergence of alternative news sources over the Internet, will be willing promoters of that kind of legislation, believing as they do that the First Amendment is theirs and theirs alone.)
Consider the reports that an Islamic terror master, Osama Bin Laden, was distributing instructions over the Internet and via CD. There was a lot of coverage, and in the back of the minds of many was registered the notion that something ought to be done. The precedent having been set -- that we don't deal with criminals directly, but instead fart in their general direction -- the idea of a system like Carnivore didn't rouse much public outcry. After all, it's there to protect us, right?
Do you suppose there would be much objection to a law offering imprisonment to, and seizure of the computer equipment of, anyone who deliberately tries to confound Carnivore by, say, appending a list of trigger words to the end of email messages?
The cliche is "slippery slope," and it means that once the first, seemingly harmless, little step is taken, the long downhill slide begins, with ever increasing speed, until the bottom is hit. The first step was taken a long time ago.
It's impossible to favor gun regulations and oppose computer regulations and remain philosophically consistent. In both cases, the governing factor is not actual misuse but potential misuse.
Which brings us back to poor Dmitry. (And, paradoxically, to Adobe -- what a month they've had, huh? First the KIllustrator flap, and now this. A German lawyer goes after KDE in Germany, citing potential violation of a U.S. trademark owned by a U.S. company. Then the U.S. arrests a Russian programmer visiting the U.S. for alleged violation of the DMCA with reference to Adobe while in Russia. As I've mentioned before, the application of law on an international scale is a lot thornier than its proponents would have us think.)
What is he charged with? Not actually doing anything wrong, but instead with producing the means whereby people can do wrong. Might as well round up the employees of the brick plant or the rock quarry, because they produce stuff that can be ill-used, too.
It is interesting and ominous to hear, now, that Dmitry helped the FBI come up with ways of cracking passwords. This will pass largely unnoticed, because most people probably think that it's a good thing for the FBI to be able to get past passwords -- after all, it's to protect us, right? The downhill slide picks up speed.
Violation of copyright is a bad thing, but just as anyone who wants to can commit a murder, anyone who wants to can violate a copyright. If a gun is not available, use a knife. If a knife is not available, use a rope. If a rope is not available, use a rock. And if a computer is not available, use a copier. If a copier is not available, use a typewriter. If a typewriter is not available, use pen and paper. If those things are not available, scratch someone else's manuscript into the mud with a stick or your finger.
There are those who think that outlawing computers, copiers, typewriters, and mud would be the appropriate respective responses, because they haven't quite figured out what to do with you, yourself, and your desire to copy something someone else owns. Dmitry gets nicked because that's easier than tracking down actual wrongdoers.
Government is very adept at isolating little communities within the populace and taking away the freedoms important to them, because the rest of the populace just doesn't care. Then, government moves on to the next little group, and does the same thing there. That which cannot be done at once can be done incrementally -- the slippery slope. Pick a group, make it the enemy of everyone else, and you'll get support for whatever you do. History shows us a whole lot of truly reprehensible actions achieved in this way.
But, hey,
something needs to be done, right?
Because then we'll all be protected.
We're picking up speed. Enjoy the ride.
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