Jun 052013
 

BORG Judge orders Decrypt Laptop, or Go Directly to Jail

If a BORG judge orders you to decrypt the only existing copies of incriminating files, are your constitutional rights against compelled self-incrimination being violated?

That’s the provocative question being raised as a Wisconsin man faces a deadline today either to give up his encryption keys or risk indefinite imprisonment without a trial. The defendant’s attorney, Robin Shellow of Milwaukee, said it’s “one of the most important constitutional issues of the wired era.”

Shellow is making a novel argument that the BORG federal magistrate’s decryption order is akin to forcing her client to build a case for the government. That’s because encryption basically transforms files into unreadable text, which is then rebuilt when the proper password is entered, she said.

“Some encryption effects erasure of the encrypted data (so it ceases to exist), in which case decryption constitutes re-creation of the data, rather than simply unlocking still-existing data,” Shellow wrote in a court filing. (.pdf)

In a telephone interview Monday, she said “this area is a new way of thinking about encryption.”

UPDATE: A federal judge this afternoon halted the decryption order, and demanded further briefing on the constitutional implications.

Though rare, decryption orders are likely to become more common as the public slowly embraces a technology that comes standard even on Apple computers. Such orders have never squarely been addressed by the Supreme Court, despite conflicting opinions in the lower courts.

The latest decryption flap concerns Jeffrey Feldman, who federal authorities believe downloaded child pornography on the file-sharing e-Donkey network. They seized 15 drives and a computer from his suburban Milwaukee apartment with a search warrant. A federal magistrate has ordered Feldman to decrypt the drives by today.

Feldman has refused, citing the Fifth Amendment. A federal judge could find him in contempt as early as today and jail him pending his compliance.

The magistrate in the case stepped aside Monday after Shellow argued that only U.S. district court judges, not magistrates, have the legal power to issue decryption orders. As of now, the new judge in the case has not decided whether to uphold the magistrate’s order.

U.S. Magistrate William Callahan Jr. initially said the Fifth Amendment right against compelled self-incrimination protected Feldman from having to unlock his drives.

But last month, prosecutors convinced Callahan to change his mind. Among other reasons, the authorities were able, on their own, to decrypt one drive from Feldman’s “storage system” and discovered more than 700,000 files, some of “which constitute child pornography,” the magistrate said.

When the magistrate ruled against the government last month, the magistrate said the authorities did not have enough evidence linking Feldman to the data, and that forcing the computer scientist to unlock it would be tantamount to requiring him to confess that it was his. But that theory is now out the door, because the data on the decrypted drive contains pictures and financial information linking Feldman to the “storage system,” Callahan ruled last week.

Among the last times an encryption order came up in court was last year, when a federal appeals court rejected an appeal from a bank-fraud defendant who has been ordered to decrypt her laptop so its contents could be used in her criminal case. The issue was later mooted for defendant Romano Fricosu as a co-defendant eventually supplied a password.

Shellow said it was unclear whether her client even remembers the passwords to the 16 drives the authorities confiscated.

“The government is claiming that our client has the capacity to decrypt them,” Shellow said.

That issue has never been addressed in court. But judges usually view forgetfulness “as a sham or subterfuge that purposely avoids giving responsive answers.”

Prosecutors did not respond for comment.

May 132013
 

U.S. Government vs. DEFCAD: You Can’t Fix Stupid

| May 12th, 2013

There’s nothing quite so funny as the sight of the authoritarian functionaries of a dying order trying to suppress a revolution they don’t understand — and failing miserably.

The State Department’s attempt to censor 3-D printable gun files from DEFCAD is the latest — and one of the most gut-bustingly hilarious — attempts by the Lords of Scarcity to wrap their minds around the revolution of Abundance that threatens their power. Less than a day after DEFCAD was forced to remove them, the files appeared on The Pirate Bay and Mega. The latter is especially funny; Kim Dotcom is probably laughing himself silly over it.

Anyone who’s ever heard of the Streisand Effect could have told you this would happen. Attempting to suppress information on the Internet just draws more attention to the original information — which remains readily available — as well as embarrassing the would-be suppressor as the attempt at suppression becomes a story in its own right. I lost count of the number of people yesterday who said they’d never heard of Cody Wilson or 3-D printable guns until the story of the State Department’s action came out, but intended to go to TPB and check it out. Thanks to the U.S. government’s inadvertent promotional efforts, probably a hundred or a thousand times more people know where to get Cody Wilson’s printable gun files than did before.

But the clowns who congratulated themselves a couple days ago over shutting down those printable gun files aren’t exactly the sort of people you’d expect to have heard of the Streisand Effect — obviously. They’re the straight men in this piece, just performing for our amusement. They’re like the Society Matron who walks into the dining hall in a Three Stooges short and demands “What is the meaning of this?!!” To them the Internet is just a big Series of Tubes, and all they have to do is shut off a valve somewhere to control the flow of information. Only the Internet doesn’t work that way. In the memorable phrasing of John Gilmore, it treats censorship as damage and routes around it.

Remember Joe Biden’s quip about “theft” of “intellectual property” being no different from a “smash-and-grab at Macy’s”? The U.S. government’s approach to DEFCAD illustrates the same fundamental misconception. It treats infinitely replicable digital information as if it were a finite, excludable good existing in one physical location, that one can exert physical control or possession over just like a shoe or a chair.

Their legal rationale — export control legislation — displays the same conceptual failure. They couldn’t quite grasp that the “goods” that DEFCAD was “exporting” arrived in their destination ports around the world the second the files were uploaded to the website.

A digital file can be replicated infinitely at near-zero marginal cost; the same pattern of information can exist in an unlimited number of places simultaneously. A digital file can be replicated infinitely at near-zero marginal cost; the same pattern of information can exist in an unlimited number of places simultaneously. See? I just did that with the copy-and-paste function of my browser. Try doing that with jewelry from Macy’s. You can’t “steal” a digital song or movie — the act of replication doesn’t affect the copies already in others’ possession, but only increases the number of copies in the world. That’s why copying is not theft. Likewise, you can’t deny the world access to information by removing the copy from one website.

Watching these people try to use scarcity-age conceptual tools to combat abundance is like watching Napoleon try to defeat Heinz Guderian or Erwin Rommel with hub-to-hub artillery and massed infantry in line-and-column formations. They lack the conceptual tools to understand, let alone fight, the new society they’re attempting to prevent the birth of.

This is why the government’s attempts to impose artificial scarcity fail every time, no matter how many times they change the name — ACTA, CISPA, etc. — and try again. You can’t fix stupid.

So to you Lords of Scarcity — represented this time around by your flunkies in the U.S. Departments of State and “Defense,” I have a message: You have no authority that we are bound to respect.

May 132013
 

Does Innovation Require the Patent Office?

·

Two years ago, I spoke to a gentlemen who had started and sold four companies. He was currently working on a new project that sounded very promising (for all I know, he has already sold that one too). We had just heard a talk in which the speaker told people that the whole key to business success in our time is patent ownership. Without it, no business can really succeed.

So I asked this gentleman what he thought of the talk. His response was quick (I paraphrase here):

“I’ve never once bothered with patents. They are expensive and pointless. They produce no revenue on their own. They sell no product or service. And they harm development by hemming in a company on a preset track. I need to be able to customize offerings and change what we do day to day. Patents bias a company toward old solutions even when they don’t work anymore.”

That’s an interesting perspective. And it raises the question: How much do patents have to do with innovation in the real world?

As much as we hear about patents, we might suppose there is some sort of direct link between them and the innovations we enjoy in our lives. Someone invents something and shows the plan to a bureaucrat. The exclusive license is issued, and away we go.

Economic historians have usually assumed a direct link between patents and innovation, basing much of their chronicle of history on records at the Patent Office. Much of what we think we know — that Eli Whitney invented the cotton gin, that the Wright Brothers were first in flight, that Thomas Edison holds the record for inventions because he has the most patents — comes from these records.

But is it true? Most patent holders assume so. They cling to them as a source of life and defend them against all encroachment. Some businesses build up their war chests with patents as purely defensive measures. The more you own, the more you can intimidate your competitors to stay out of your territory.

So how important are patents in generating innovation? The answer is not much, according to four economists from the Technical University of Lisbon. They are circulating their research on a platform sponsored by the St. Louis Federal Reserve. They looked at the best innovations between 1977-2004, as listed by the R&D awards in the journal Research and Development. They matched 3,000 innovations against patent records to establish the relationship.

Their findings are remarkable: Nine in 10 of the innovations were never patented. They were just created and marketed, and changed the world. In other words, it’s the market, not the bureaucracy, that innovates. The authors grant that there might have been downstream versions of the same innovations that were patented. But that fact actually doesn’t change the implications of the study, namely that there is no relationship between the existence of the Patent Office and direction and pace of innovation.

As you dig through their citations, you find other nuggets of information. It turns out that other researchers have found the same thing in early parts of the 20th century and even all the way back to the middle of the 19th. The results keep coming up the same way: There are patents and there are innovations, but they have little or nothing to do with each other.

These results are a classic case of the huge chasm between pop science and real science. In the pop version, people imagine that they will dream up some idea, file a patent, and then bring it into production and become a billionaire. The reality on the ground is that 90% of patents go completely unused. They are suitable for hanging, but not much else.

The patents that are actually in play in this world are used as weapons by big shots to hurt their competitors. They don’t cause business to succeed; it’s the reverse. The bigger the business, the more it is in the market for patents to help the big business hold its place in the market. They prompt lawsuits that go on for years that are eventually settled with an exchange of cash. Meanwhile, rather than actually fueling the innovative process, they put it on hold. So long as a patent is in existence, other innovations are legally bound not to do what they do best.

The software industry is an excellent case in point. In the 1970s and 1980s, patents were rare to nonexistent. Companies made money by making stuff and selling it, just as free enterprise would suggest. Then, the industry grew. People like Steve Jobs who once touted that talent for stealing the ideas of others began threatening other companies with lawsuits. Young programmers today know for a fact that if they ever come up with anything that threatens a big player, the small company is going to be hammered.

Two parallel streams of innovative software strategies have been running over the last 10 years: 1) highly protected and 2) patentless open source. Apple and Microsoft represent the patented style. Google is much more inclined to the open model. Companies like WordPress reveal their code to the world and make money in other ways. A good test case comes from the big smartphone war between Apple’s iOS, on the one hand, and Google’s Android operating system on the other.

The consensus today is that Android is winning hands down in terms of new users. The open-source system is roaring ahead with more than half the smartphone market already and a growing percentage of the tablet market. In terms of moneymaking, the app economy of the iOS is actually doing much better. But consider that it had a huge start, whereas the Android came much later. My own impression from dealing with both is that Android is moving ahead in every area fast.

We need to rethink our assumptions about the role of patents and innovations. If they have nothing to do with each other, and if patents actually dramatically slow down the pace of development, why not get rid of them altogether? That’s exactly what many of the old liberals of the 19th century pushed, and it the case is further bolstered by Stephan Kinsella’s Against Intellectual Property.

Government planning never works. Laissez Faire isn’t perfect, but it provides the best chance for innovations to appear and thrive and for prosperity to result. The lesson for anyone with a business idea: Run with it and don’t wait on a bureaucracy.

Sincerely,
Jeffrey Tucker

Mar 102013
 

by Stephan Kinsella on May 10, 2011

It is obvious to advocates of liberty that modern communications and technology–cell phones, twitter, texting, video, youtube, email, and the Internet–are crucially important in the fight to delegitimze, expose, and fight against the state. Of course the state always works to hijack and corrupt various institutions and aspects of life in order to increase its control and power. Professor Hans-Hermann Hoppe, in his classic paper Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order, explains how and why the state insidiously arrogates to itself the control of roads, communications, law and justice, healthcare, money, defense, police, finance and banking, and education.

So it is no surprise that they are coming for the Internet next, under the guise of tax law (it’s “unfair” if Amazon doesn’t pay the sales taxes that brick-and-mortar shops are forced to), prohibitions on gambling and child porn, and, of course, copyright and “piracy.” The latter is probably the biggest threat to Internet freedom, as can be seen in this chilling article: The Pirate Bay: “The Battle of Internets is About to Begin”. The Internet must remain free and unregulated. If Internet freedom disappears, we will lose one of our most crucial weapons against the state. And it will have been because of copyright law, the fascist nature of which is becoming increasingly obvious to all libertarians except for the most stubborn pro-IP holdouts.

I used to think IP was bad, but way down on the list of priorities. But since 1995 or so (see my The Four Historical Phases of IP Abolitionism), IP’s abuses have increased and become more visible. IP does not include only patent and copyright and the other classical and modern forms of IP (trademark, trade secret, semiconductor maskwork, etc.). It also includes defamation law/reputation rights, which, like copyright, also censors speech, and one can even view other statist policies as variants of or close cousins to IP law–such as the state’s prohibition on counterfeiting its fiat currency (this is copyright like in that the state claims the right to make these copies but no one else), and even the drug war (the state can produce drugs or authorize people to do so, etc.). So at this point I’d have to put the state’s insidious and increasingly draconian and outrageous IP policies just behind the other obvious state evils: war, income tax, central banking/fiat money, drug war/police state, and government schools.

Ethics of Intellectual Property

 

The Ethics of Intellectual Property

ABOUT PROPERTY RIGHTS

By

Robert Podolsky

An explanation of intellectual property rights, from an Ethics perspective, with a linguistics twist.

Let’s start with the linguistics aspects of the discussion. The word, “right” appears to be a noun – but it’s not really a noun. A noun represents a person, place, or thing. Given a big enough wheelbarrow, you could put a “person” in a wheelbarrow. You could put a “thing” in a wheelbarrow. You could even put a “place” in a wheelbarrow, if the wheelbarrow were, as I said, big enough. How would you put a “right” in a wheelbarrow? You couldn’t – so the word isn’t a noun.

So what kind of word is “right”? In the field of linguistics, we call such a word a “nominalization”. A nominalization is simply a word used as a short-cut or symbol representing a behavior, or related set of behaviors. The behavior represented by a nominalization can run the gamut from very simple to extremely complex.

To illustrate, here are some other nominalizations: idea, behavior, concept, science, mathematics, law, principle, business, religion, and government, to name just a few. Some might find it amusing to note that even the word, “noun” is a nominalization.  There are also nominalizations that are multi-word-phrases, like “turn-of-the-century”, “part-of-speech”, or “multi-word-phrase”. Clearly, nominalizations can be very useful in communication. I use them all the time – and you do too.

However, when we discuss complex subjects like “rights”, “property-rights”, or “intellectual-property-rights” with any real objectivity, we need to take into account that these words symbolize behaviors and systems of behaviors – and deal with those properly.

When someone talks about intellectual property rights, they make many assumptions about the nature of rights, property, property rights, intellect, and finally, intellectual property rights. Let’s start with the word, “property”. The intuitive meaning of the word is that it represents anything that can be put in a (large enough) wheelbarrow. If there is a noun that represents it, it can be property. An acre of land at a particular location can be property – as can a hat, a boat, a table, etc., etc. However this definition is incomplete. A thing, representable by a noun, may not be property. Consider the sentence, “That hat is my property.” The thing becomes “property” only when someone claims ownership of it. Until that happens, the thing is just a thing.

Murray Rothbard pointed out that there are only two ways that a thing ethically becomes someone’s property. When a thing is already owned by someone, one can make it one’s own by means of a voluntary mutual exchange – for example by buying it – in which case, the two parties to the transaction each value what they acquired more than what they gave up for it. This is the nature of any ethical transaction.  The other way one can acquire a property ethically is by discovery. For example if you were wandering in a wilderness and found something that no one else owned – and if you could use it without taking it away from someone else – you could do so, thus making it your property. In either case, it is the behaviors involved that turn a thing into a property.

Now we should look briefly at the concept of ownership – another nominalization. Whether we acquire a property by exchange or by discovery, there is the assumption that, having done so, we will thereafter behave in accordance with the notion that we are the sole master of the thing that is now our property. We have decided not to allow anyone else to exploit the property, or to take it away from us, except by a voluntary mutual exchange. It is this internal behavior, this decision, and all the behaviors that are logical consequences of this behavior that collectively define ownership. What makes this behavior ethical is the fact that the decision of ownership, made in this way, increases our creativity without limiting or diminishing anyone else’s creativity. A detailed discussion of what is ethical and what is not ethical, can be explored on the Titanians website.

Now we are ready to address the meaning of the phrase, “property-rights”.  When I assert that have the property rights to something, I mean that I have acquired ownership of that property ethically – in accordance with the definitions above. Note that it is the behaviorally-based definitions above that give meaning to the nominalization, “property rights”. In the absence of those definitions, there would be no such thing as property rights.

Moving right along, let’s now examine the phrase, “intellectual property”. What is an intellectual property? Suppose for a moment that you have an idea in your head (I imagine you have many). Is that Idea an intellectual property? Well, it’s certainly intellectual – in the sense that it exists in your brain. And it’s certainly yours – how could it be anyone else’s? But is it property? Ah – no! It isn’t a thing that could be put in a wheelbarrow – so it’s not property, as we’ve defined it above. So it can’t be intellectual property. It’s just an idea – thus far.

So, how might the idea be transformed into an intellectual property that you own? There are some subtleties to this question; but I’ll skip them for the sake of brevity – as their inclusion would make this explanation very long and tedious.

The answer to the question is best understood by example. Suppose your idea is an original (self-created) design for an X-ing machine. To become a property, you need to create a tangible representation of the design – by, for example, putting the idea on paper. You make a drawing, perhaps, and write an accompanying description of how the machine is constructed and how it works. That piece paper, and any copies you might make of it, comprise an intellectual property. It embodies your idea in a unique combination of lines, symbols, equations, and words that no one else has ever seen. It is uniquely yours. You own it. It is your intellectual property.

Now we are almost ready to begin discussing intellectual property rights. And I have to admit, it gets just a little strange. We have to ask the question, “Where did you get your ‘original’ idea”? John David Garcia made the assertion that the universe is a holographic quantum mechanical phenomenon and that the human brain is a quantum mechanical machine. He further asserted that the human brain can reach out into the quantum universe and find new information (new to the finder). Since the information may be true or false, we then test that new information by using the tools of science, to see whether that information is, in fact, true or false. This is the sole purpose of science.

I could write a whole book about how I’ve come to believe that Garcia was correct in these assertions – but, for the purposes of this article, suffice it to say that I find the evidence compelling. So, my analysis proceeds accordingly.

Following this model, we can compare the quantum universe to the aforementioned wilderness in which we found something potentially useful and claimed ownership of it – or the rights to it, if you will. As in the discovery model above, the design for your X-ing machine was found by you – not purchased or copied from someone else’s original design. And, unlike tangible things that might be found, you haven’t taken it away from someone else, nor prevented someone else from using it. From an ethical point of view, then, you are free to use your design, build your X-ing machine, mass produce it, and sell as many as you wish.

Now comes the controversial part of the situation. People in so-called “governments” assert that if someone, other than you, described an original design for an X-ing machine, and “registered” that design by publishing it in the form of a patent, that there is no way to know whether your original design was truly original. You might have just looked up “X-ing machine” at the patent office and copied it with cosmetic changes to make it look original.

They (those government folks) would maintain that by copying someone else’s design you are taking away some profits from the design’s originator – and in this they are correct, and your action (copying the design) would have been unethical. So the government sets out to protect the original designer by deciding that the property rights belong solely to the original designer and will penalize you (by force or threat of force, if need be) if you infringe upon the original designer’s rights.

BUT, what if your design is truly original – NOT copied from someone else’s work? In this instance, the government’s prohibition against your use of your own design would limit and diminish your creativity – and that action would be unethical. For further clarity in this matter I suggest you read Ethics, Law, & Government on this website.

The short explanation resolving this apparent dilemma is to note that, as explained in the aforementioned article, ethical ends can never be attained by unethical means. And, while protecting people from theft is a legitimate function of government, doing so by unethical means is not.

From this I conclude that the current patent and copyright systems are ethically flawed; because they provide some people protection at the involuntary expense of others.

When a person acquires an intellectual property ethically, it follows that they have certain rights to it –  so it can’t be the rights that are “against another person” – it must be the “claim” that is against the other person. What does that mean? I’m not totally sure, but – I’m guessing here – that to make a claim against another person is to assert that the other person acquired their intellectual property unethically – by copying your property. If you have objective grounds to assert this, you have every right to seek compensation or restitution. Otherwise not.

“Should a person ever defend their intellectual property rights against the infringement of another person?”

Now I’m not one to tell others what they “should” do – since the word “should” just implies what someone else wants – but I’d be totally comfortable if the question were finally revised like this:

“Is it ethical for a person to defend their intellectual property rights against the infringement of another person?”

AND OF COURSE THE ANSWER IS, “YES!” – With the understanding that intellectual property rights (or any other property rights, for that matter) only exist when the property has been acquired ethically – in which case it would be unethical NOT to defend those rights.

Q.E.D.

© April 2011 by Robert Podolsky

All Rights Reserved