From: tcmay@got.net (Timothy C. May)
Date: Wed, 29 May 1996 11:16:04 +0800
To: cypherpunks@toad.com
Subject: Fairness, Justice, and Cypherpunks
Message-ID: <add0a562060210045585@[205.199.118.202]>
MIME-Version: 1.0
Content-Type: text/plain



Several recent messages have raised issues about "ownership of
information," "compilation of dossiers," and the (putative) imbalance
between personal power and corporate power (which some think justifies
denying corporations certain basic rights or Constitutional protections).

I'll try to make my points brief. For those who think this has little to do
with the Cypherpunks list, I disagree. Everyday we see proposed laws which
seek to create a "fairer" society but which actually do not (and cannot,
using the violations of other basic rights such laws so often entail). We
see on this very list calls for "Data Privacy Laws," and Europe's various
data privacy laws are often held up as a model.

A couple of posters have also mentioned the seminal work of John Rawls, and
his "Theory of Justice." I'll use this as a platform for my points, though
it is only one of several viewpoints which say much the same thing.

To cut to the chase: When any law is proposed, think of how one would react
to the law if in the shoes of others. How would one react if one were the
"target" of the law?

(While Rawls posits a situation in which one is to imagine alternate
universes in which one trades places with others, with "just" laws being
those that the maximum number of people would accept in this ensemble of
universes, the situation is not nearly so abstract as one might imagine.
Namely, one can imagine becoming wealthy, or owning a business, or someday
needing to speak controversial thoughts. A wise person thinks about these
possible developments in his life and carefully asks himself if the laws he
is thinking about supporting would be supported by himself should he become
wealthy, own a business, or have controversial things to say. Nietzsche
said the most corrosive human sentiment is _envy_, and I think he was
paralleling the later thoughts of Rawls, Nozick, Rand, and many others. It
is interesting that one of the "British diseases" is intense class envy,
with a desire to pull down those who have succeeded...ironic that Britain
is a pioneer in "data privacy laws.")

Let's take the somewhat off-topic (for the list) case of "minimum wage
laws." It casts a different light on the issue.

Many people talk about the "reasonableness" of insisting that employers
give their employees a "fair" wage. But how can "fairness" ever be defined
except in terms of what an employer is willing to pay and what an employee
is willing to accept? As a prospective employee, I may _wish_ that the
State force employers to pay more than they are normally willing to pay for
a job. But imagining myself as an employer, maybe a job is "worth" only
$3.50 an hour to me, period. It just ain't worth more. In a free market,
people can take it or leave it. It is not right that the government decide
how much I must pay

(There are related issues of job opportunities for young kids, which have
been severely cut as "floor-sweeping" sorts of "starter jobs" (e.g., teens
bagging groceries, day laborers picking up roadside trash, etc.) have been
made uneconomical by minimum wage laws. And when an employer is told to pay
more than a job is worth to him, he may either automate the job or simply
find ways not to do the job. But I'm concentrating on the "justice"-type
issues, not various practical side effects, though these are real.)

As this relates to Rawls, I view all laws in terms of how I would react if
they applied to _me_. This informs all of my analyses of laws. This is why
I often say politically incorrect things about various forms of job
discrimination. For example, I view the laws saying that an employer cannot
discharge an employee unless "adequate reason" is given. (Increasing
numbers of states and locales have increasing numbers of restrictions on
employers.) I imagine myself hiring a  worker to do something, then, for
various reasons, no longer wishing that worker to be at my house (maybe
it's the bone through his nose, maybe it's her Mohawk haircut, maybe it's a
chip on his shoulder, maybe I just don't like him, etc.). I picture the
employee taking his "grievance" to the State, and collecting back wages
plus penalties from me. Arggh! So much for freedom.

(I also like playing the "turn the tables" game in another related way.
Various laws say that employers cannot get rid of employees except under
certain circumstances. Shouldn't such laws apply the other way around? "I'm
sorry Manuel, but I cannot let you leave this job to take that better job.
Under the Fairness in Employment Act, you cannot leave this job unless you
have justified your actions with the State Fairness in Employment Office.")


* Data Privacy Laws *

Closer to the CP themes, let's look at "data privacy laws." I mean the laws
similar to what Europe has, not contractual arrangements made with data
collectors. (That is, we probably all agree that a doctor who sells patient
medical data is wrongly selling this data, as there is either an implied
contract (much as I hate this "implied" construct), a formal code of
medical ethics (which may be what generates the implied contract), or an
actual formal contract stating that the doctor will preserve the
confidentiality of his patient's records.)

Here's the semi-Rawls interpretation:

* To the consumer, or private citizen, or ordinary person, such laws may
initially sound good. It stops "dossiers" from being compiled (or so the
theory goes...the reality, even in Britain, is quite different).

* But what if the citizen imagines himself on the _other end_ of such laws?
(This is, as I said, a mental exercise when considering all proposed laws.)

Will I get a knock on the door and have the Data Privacy Enforcement Office
demand to enter my home to inspect my computer files? Will they demand that
I decrypt the encrypted files to ensure that no violations of the Data
Privacy Act of 1998 have occurred?

(What happened to "secure in one's papers.." and "Congress shall make no
law...free speech"? Or do such rights only apply to individuals and not
groups (companies, clubs, etc.)? Sadly, such appears to be the case, with
raids and random inspections of companies for various reasons. This is a
worrisome development, the notion that if I have a business or company my
rights go out the door. (And some crypto relevance is that such
interpretations of rights could be used to say that whereas any single
individual may have the right to use strong crypto, all groups, clubs,
companies, partnerships, etc. must comply with government rules on crypto.
The "regulate commerce" clause rides again.))

Will it become a crime to "remember" the public utterances of others? (Me:
"But in 1988 you said you were a supporter of Fidel Castro" Him: "How dare
you remember that information!...that information belongs to _me_, and I
insist that you not repeat that illegally-remembered item to anyone,
summarize it in any way, or sell it as part of any transaction without a
formal release from me.")

Supporters of Data Privacy Laws may well say that the laws do not outlaw
mere "rememberances." Well, in fact the U.K. laws _do_ effectively regulate
such collections of utterances or other publically-derivable facts by
mandating that any data bases of names, dossiers (which are of course
collections of facts attached to a name), and mailing lists be subject to
regulations, be reported to the appropriate authorities, and that the
subjects of dossiers be notified that a dossier exists on them.

(As might be imagined, this law is probably not very effective. But like
many bad laws, it automatically makes a large number of people into de
facto criminals. Of course, governments often like this situation...it
increases leverage on those they wish to hassle.)


* Enforcement of Laws *

Another semi-Rawlsian way to look at laws is to imagine what might be
needed to enforce particular laws and then ask if this is something one
wants to see.

We do this a lot on this list with discussions of the outlawing of strong
crypto. We realize that outlawing strong crypto would effectively require a
kind of police state to enforce, with random searches of packets, with
monitoring of communications, and with draconian penalties for the
violators.

"A law which is not enforceable without a police state should not be a law."

Much of what we talk about on the list is oriented toward making such laws
as "Data Privacy Laws" essentially unenforceable. Think of data havens,
keeping "illegal mailing lists" in other countries, bypassing the Fair
Credit Reporting Act by various stratagems, etc.

I'll leave it to those who have read this far to think about this issue in
more detail.


* Last Thought *

Before supporting a law which "sounds fair," ask yourself how the law will
be applied to those on the other side, and how you would feel if the law
were to be applied to you.

While probably very few of us _like_ the thought that various people and
organizations are taking our words and our actions and placing them in data
bases or dossiers, think of the implications overall in banning or
attempting to ban such actions.

(For one thing, the administrative overhead of complying with the laws
would probably make hosting the CP list in the U.K. prohibitively
time-consuming. Mailing lists are covered by the U.K.'s Data Privacy Laws,
and the operators of a list site would have to fill out the appropriate
paperwork, probably pay for a license, report regularly to the members of
the list, etc. And those who _archive_ these lists (the hks archives, my
own archives, your archives, etc.) are ipso facto, slam dunk violations of
the European-style laws. Is this what is wanted? And does it make a
difference?)

We should have very, very few laws. Laws about murder, rape, theft, etc.
And most such laws pass the "Rawls test, of course. (Another formulation of
the Rawls sort of analysis is in terms of "rights as Schelling points,"
after the noted game theorist.)

Cypherpunks should not, in my strong belief, support "data fairness laws"
or "anti-gossip laws."

Put yourself in the shoes of someone affected by these kinds of laws.

--Tim May








Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
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