Privacy and piracy: What are we telling the kids?

The lesson is that ownership of information is a corporate right, and that people are only licensors.

"Only organizations own information"

It used to be that you could hold a book in your hand and it was yours -- really yours. Sure, you weren't supposed to duplicate and sell the copies, but you could read it again and again, even out loud in front of an audience. You could make a copy of a few pages for a report or presentation, make notes in margins, and even tear the covers off to make it fit in your travel bag or give interesting pages to your friends if you were so inclined.

But no more: Play music in a public place? Better get a performance license. Copy an image or make an audio sample? Not without explicit permission. Make notes or commentary? Not permitted by the license in some software. Trans-code media to take with you on a trip? "Fair use" is under attack. Split a paid-for "CD" into individual songs and give them away? That's asking for big trouble.

The lesson is that ownership of information is a corporate right, and that people are only licensors. Stories from the likes of Courtney Love about the abuse artists and performers suffer at the hands of RIAA and MPAA members are legion, and only serve to reinforce the idea that the current legal system only reserves ownership and control of information for organizations, not individuals.

Even more innocuous (but not harmless) control of information sourced from individual contributors furthers this notion. For example, the popular Facebook site was recently the subject of discussion concerning its "Hotel California"-style data retention policy wherein it retains and keeps rights to all contributions of personal data in perpetuity -- as well as recent use of personal content for targeted marketing purposes.

For any older student starting to produce their own serious written compositions, research papers, music, designs and other intellectual works, it's inevitable that they ponder the transition from their own "work" into "property." If the omnipresent media businesses appear to tromp on the rights of individuals as producers and consumers, then the futile and frustrating choice is either to be a sell-out/obedient consumer, or to throw a Bittorrent- or Tor-shaped wrench in the system.

"Security is not for you"

Recent legal developments in the US have included criminalization of tools: From bongs to slim-Jims, possession of items that might be used for a criminal act are termed paraphernalia and their possession criminal in its own right. Recently, the use of encryption software to hide criminal activity was deemed a criminal act itself, and current opinions are leaning towards the mere presence of encryption software or encrypted data as probable cause -- the standard used by law enforcement to justify an on-the-spot search of person or property, obtain a warrant, or make an arrest based on the notion that a crime has probably been committed.

This sort of "pre-crime" prosecution is an expression of fear on the part of potential plaintiffs or prosecutors, an excuse for bad evidence-gathering, and a tool ripe for misuse. We already have laws that distinguish between the expression of intent to hit someone with a baseball bat (threatening qualifies as assault, even if no one is injured) and actually hitting them with said bat (battery; no pun intended). Why does possession of a baseball bat without a uniform need to be criminalized as well? The answer, it seems, is only in capricious cases where the evidence of intent is weak.

What this does accomplish is a double standard whereby organizations use borderline or obviously illicit tools (eg., Sony's rootkits), monitoring without informed consent, and content encryption without question or fear of prosecution. These same items are currently or soon will be probable cause for arrest and detainment of individuals, if not on campus and high-schoolers' living rooms then surely in customs or any situation already under scrutiny by law enforcement.

But resource-rich kids will not capitulate, and removing their resources makes them unsuitable as customers. They look at every instance of "Digital Rights Management" control and monitoring software foisted upon them by record and movie companies, and see it as justification for cracking. Encrypted content justifies encrypted volumes for storage. Monitoring justifies evasion, and as the crowd gets bigger, evasion gets easier and easier.

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Jon Espenschied

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