CFP'93 - Slouching into Cyberspace

by Donald G. Ingraham

Assistant District Attorney
Alameda County, California

These things have I shored against my ruin:

FIRST: Computers Are Not Being Criminalized - Crime is Being Computerized.

SECOND: Regulation Is Inevitable In A Society.

As to the first postulate:

There are worse things than laws, and one is no laws.

There are greater risks than government, and one is no government.

The history of civil rights in our society is not so much a history of government abuse as it is of legal abstention and legislative avoidance of duty to craft the laws that are essential to achieving equal rights to life, liberty, and opportunity to pursue happiness, even for those who could afford them otherwise.

Some see government as inherently antithetical to freedom or privacy, but those sentiments are generally found only to those with the tenure or independent income to afford the luxury of such narrow concerns. The rest of us have to look to government as a means of securing those rights, among others: and not only from abuse of government power, but from abuse by their fellow inhabitants, corporate or otherwise.

The first CPF dispersed a shower of hope and a pledge, extorted by Jim Warren, of work to be done. Not all of that has been achieved, as it never will be. Professor Tribe's freedom of electronic communication Constitutional amendment joined the ERA on the to-do list. But there has been progress.

In California we developed and have proposed a model statute controlling both the issuance of search warrants for electronically stored evidence, and the post-seizure processing of materials seized thereunder, identifying the peculiar and particular problems of the Electronic Communications Privacy Act and the Privacy Protection Act. That proposal has been submitted to the California legislature's Senator William Lockyer and to the Massachusetts Commission studying Computer Crime Laws, chaired by Mitch Kapor. Both good people, rightly concerned.

On the federal level, Mr Scott Charney, an Assistant US Attorney General, has been designated as the individual responsible for federal prosecutions in computer-related areas, and has been busily publishing and working the conference circuit spreading the word and soliciting discussion. [Given the pronounced goals of the new administration, it is possible that greater recognition will be given to the concerns of the computer community].

On the down side, for the last two years the things that go bump in the cyberspace have not abated.

The process of computerization of crime continues, and phone fraud alone is causing a considerable drain on the business community.

Virus technology has flourished so prolifically that only the viruses with the catchiest monickers make the press.

Further, the dependence on computers of all institutions, private and public, has steadily increased, and with a consequential increase in the risk to the security, accuracy and availability of the data contained thereon.

Money is being made available to fund increased speed and capacity in the internet, with - if the press reports are to be believed- little regard to safety and control. We of the dim view are unavoidably reminded of the pre-1929 stock market of the '20s, the S&L's of '80's, and wonder why an emerging profession continues to ignore the concomitant responsibility to regulate at least in the interest of those whose fortune and futures are thereby placed at risk.

It would appear that the role model for absorbing computer technology into the emerging society is not Edison or Ford or even Disney, but J. Thaddeus Toad.

Speed and capacity are the goals, and thank Whatever that we can confine ourselves to the laws of physics and not have to bother at all with philosophy, ethics, or other areas where we might have to consider right and wrong rather than rate of return.

Back in the late 70's, when the world was young and Jim Warren was putting out Doctor Dobb's Journal on non-skid paper, the California Legislature wrestled out its first computer crime statute under the gentle ministrations of Donn Parker, Sue Nycum, and others: this effort prompted an exchange in the Doctor's pages, which basically came down to the wistful hope that the law would not start messing with computer use. My reply was that much the same misgiving attended the development of the automobile, and as Masterpiece Theatre was then running the Ian Carmichael Lord Peter Whimsey series, compared his attitude toward motorcars to that of the edp aficionados toward their devices, and concluded that we had passed the point where frolic could be confined to the user elite, but presented a clear and present danger to the rest of society.

If that was prescient in the l970's, it is surely no longer in dispute in the '90's. So far, the dreams of a worldwide electronic village have only produced a net-wide electronic condo, with a tenant association of increasing balkanization and scant regard for the nonplayers. The electronic agora seems extraordinarily narrowed, clubbish, and suffers all the shortcomings in civility and logic that spontaneity and anonymity exacerbate. That, and a steady erosion of subject privacy in the interests of commerce and curiosity, make one wonder if Pascal would really feel honored.

I was flattered last year by being quoted on the title page of 2600 as having said "They want to find out that which is not theirs to know". [Which I may well have done, stiltedness being an occupational hazard] The phrase was apparently being taken ironically as a comment on 2600's editorial purpose, as a way of saying "damn right!", as if the idea that there could be anything that someone else has no right to know is absurd or somehow self contradictory. Which is, of course, not true. Knowledge is not to be gained by theft. "Knowledge wants to be free" is meaningless unless you anthropomorphize knowledge. Beings have wants; things don't, except as beings recognize them.

Despite which the hacker ethic of discovery continues to suffer distortion at the keys of predatory leeches, in knowing and willful rejection of the fact that the development of cyberspace owes far less to serendipity than it does to venture capital, and the latter requires some assurance that whatever lode is struck will be around long enough to pay off the mortgage. [Some of the l492 anniversary flak might provide fodder for reflection if it wasn't more important to check out this new hack.] Even on electronic frontiers there are two sides, the settled and the unsettled, and while the technical capabilities are still under development, it is difficult to see how the changes in exchange and delivery of information have made any major changes in the goals of the informants and informed. Probably one of those message and medium situations, and too many haven't time for that anymore.

At the first conference we had one of the first-ever open contacts of law enforcement and the hacker community without the benefit of a search warrant. The resultant illumination, too well enambered by the deft and discerning Bruce Sterling in his elegant coda in The Hacker Crackdown's last chapter to be attempted here, has definitely benefited both. His point, and he is surely right, is that we - law enforcement and those pressing the electronic envelope - are no longer the strangers that we were.

And, knowing each other as we do, none of us can reasonably believe that anyone else is going to solve the problems of civilizing the settled parts of the Electronic Frontier.

Which naturally leads into my second postulate:

Regulation is inevitable in a society.

With the reunion and resumption of the conference on Computers, Freedom and Privacy now in its third stage, it may be worth reflecting that the significant progress and change which has accompanied the progress of the Computer aspect of the troika in which our society is being carried has far outstripped developments in protecting Freedom and securing Privacy.

Those are jobs that ethically come with the territory, and if the pioneers don't provide for them, then they are likely to be accomplished by forces less sympathetic, less understanding of the great potential that drew the pioneers.

Since the Second Conference we lost the raucous but often disturbingly rational voice of the late Sam Kinison. This is not to say that he was an active participant in discussions of the responsible development of the electronic frontier, but in one of his tirades he made a point that surely applies here.

Commenting on the media's regular depiction of victims of famine, Mr Kinison was rude enough to inquire how come the camera crew never gives the kid a sandwich: "What's the matter- would it spoil the shot?"

And maybe it would.

And if the drive to exploit cyberspace is no more than to speed information faster, then it may be that the developers have a similar myopia.

Because "information" is quality neutral and quantity prolific, we already seem to be straining from the glut of unrefined data as we in California have been burdened by floods of water, the volume of which so exceeds our capacity to control it that comfortable adages like "well, the farmers need rain" can prompt a justifiable belt in the mouth.

When restraints are needed, it is more conducive to liberty that they be agreed upon by individuals with a stake in the game than be imposed by government or caused by even less open and accountable private concentrations of power. [A speaker at the recent Second International Virus Protection Conference in San Francisco quite seriously proposed that all work on developing viruses should be forbidden, and that an application and screening process should be penally enforced before any theories on virus programming could be tolerated.]

Traditionally, in the true professions, some restraints are the result of open but non-partisan debate, and come under the heading of Ethics. Ethics have the advantage of avoiding the more swap-meet aspects of legislation, and basically are standards enforceable within the practitioners of a certain vocation that requires a standardized higher education.

The root of the term 'profession' is that it involves one professing something, ideally in the greater interest of social benefit. Among academics, truth; lawyers, adherence to the interest of the client; and among physicians the admirable initial precept in the code of conduct known as the Hippocratic Oath: Do No Harm.

The other aspect of professionalism in the original sense of the term is that the practitioners, by entering that endeavor, are voluntarily subjecting themselves to the judgement and sanctions of their colleagues in adhering to the standards they accepted.

Which is not to say that lawyers and doctors are better than anyone else, only that they elected to enter a field where some of the restrictions are enforceable by their peers. Indeed, as a lawyer I am well aware that the history of the enforcement of standards of legal practice has been deficient in many cases. The point is that something is done about it: the major portion of the annual fees for authority to practice law go to the investigation of ethical breaches and the adjudication of alleged misconduct. And that is a cost that is borne by the members of that profession.

It is the enforceable ethic aspect of a profession which distinguishes it from the tastefully worded suitable-for-framing credos and codes of conduct without which no whilom professional organization feels properly attired. It is by far the most difficult part to swallow, made even more difficult by the gnawing fear that such authority is inconsistent with freedom and smacks of elitism. In Cyberspace, this apparently is compounded with nostalgia for the bread boards and basements.

It shouldn't be. It is less elitism than emergence from adolescence, part of the coming of age that is expected when responsibility devolves upon one.

Does it have a chilling effect? Some things are demonstrably better for being chilled, but accepting the cliche as a warning against inappropriate suppression, it should be obvious that there are more than a few mavericks in Cyberspace, and drab conformity is not on for the foreseeable future.

There is simply too much at stake and too many dependant bystanders to indulge the shenanigans that were part of the fun when the only possible victims were the other students or the gear of the endowed institution. We miscite cases and fake evidence in law schools, too: but to do it when lives and property is on the line is grounds for disbarment.

There is little modesty and much myopia in ignoring the need for the leaders of computer technology to accept the task of creating the standards of quality and responsibility. The historic pattern has been that professions that regulate from within maintain the independence of their members and the goals that inspired them far better than has been the fate of vocations which dallied until a legislature [or a lynch mob] stepped in to settle things for once and for all.

We, the unNetted and increasingly uneasy, are waiting.

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