More on Copyright Enforcement and Surveillance

TLF reader Timon makes a really good point about the choice between authenticated and unauthenticated networks:

Lawyers are trained to view complex questions and come up with balanced approaches to them — ie “balancing” privacy with police prerogatives and subpoenas. The technical world is rather the opposite; no matter how complex, an encryption algorithm, for example, either is or is not secure, and as soon as it isn’t it really isn’t. In a legal class it makes for good discussion to say, on the one hand, IP addresses should be private, except when they are used to commit a crime. In direct technical terms what this amounts to is a full surveillance state that is then ruled by court procedure: the law requires someone keep records of all mail or other communications, and then provide them to the authorities when told to. While under law there could be a protection of privacy, in technical terms there is absolutely no privacy, except that which the state decides to concede, the information it declines to look at but which is permanently stored on its orders and available for its inspection. It may seem to you that some people are just unwilling to split the difference and be reasonable, but it really is the case that where lawyers see gray others see black and white, with good technical reasons. There is no way to enforce copyright, for example, and allow anonymous speech online, as you seem to be picking up on. That is not because we are unwilling to be fair, it is a characteristic of information.

Demanding that government limit itself is never a very effective strategy, because if government can do something, it probably will. It’s far more effective to limit government by design. The Internet’s open architecture is, among other things, an important limitation on the government’s surveillance power. Precisely because there are so many ways to get on the Internet without authentication, the government has to do a lot of extra work if it wants to spy on people. For those of us who care about civil liberties, this is a feature, not a bug.

Of course, freedom isn’t free. The same characteristics that make the Internet resistant to a surveillance state also make it harder to enforce copyright, laws against child pornography, etc. This is unfortunate, but I don’t think it’s so unfortunate that we should be willing to toss out the liberty-enhancing benefits of the open Internet. Because as Timon says, there isn’t a middle ground here. Either ISPs have a reliable way to identify their users or they don’t. And if we require them to have this ability for what we regard as good reasons, it’s inevitable that the government will use that same power for bad purposes down the road.