Tuesday, July 02, 2002

Board of Ed., Pottawatomie Cty.v. Earls

Thinking further on the drug testing of government school students...

Has anyone considered the defense of consent?

If a parent turns his child's body, mind and soul over to a government bureaucracy for 12 to 17 years for "teaching" he could be held to have waived 4th Amendment rights.

Think about 17 years of interrogation, testing, examination, screening, record keeping, and indoctrination. More intimate than a single strip search or drug test. Parents of government school students have already consented to an extreme version of the search and seizure of their children. A few added urine tests seem insignificant.

Any who are concerned about this decision, should be even more concerned with the concept of government education.

Monday, July 01, 2002

The Hot New Field of Cyberlaw Is Just Hokum, Skeptics Argue

Lee Gomes writes in the WSJ:

Is there really a cyberspace full of "cybercitizens" who need only be accountable to their own "cyberlaws"? A loose-knit group of law professors is bucking one of the big fads in the legal field by calling that whole idea "cybersilly."
There is, though, a much less well-known but equally determined group of legal experts -- let's call them the "cyberskeptics" -- who are deeply troubled by just about everything about this trend. The skeptics start by questioning the very existence of cyberspace, which they say is no more real than a "phone space" involving all the people on the telephone at a given time. They go on to argue that something happening online shouldn't be treated any differently by the law than if it occurred on Main Street.
While the skeptics emphasize different points, they all have as a core principle a rejection of the notion of "Internet exceptionalism," or the idea that the Internet is a new, unique thing that requires its own special laws. "The steam engine ... probably transformed American law, but the 'law of the steam engine' never existed," writes Joseph H. Sommer, counsel at the Federal Reserve Bank of New York, in a law review article called "Against Cyberlaw." He also fretted that the cyberbuffs are afflicted with "insufficient perspective, disdain for history, unnecessary futurology and technophilia."

Internet exceptionalism, if it exists, does not exist because governments will be nice to the Internet and leave it alone. Printing exceptionalism (which definitely did exist) did not exist because governments left printing alone and didn't try to control it. Printing was exceptional because those control attempts failed.

Internet exceptionalism can be understood if one considers the unique nature of infinity. If you have an infinite amount of anything, and you reduce it by half, you still have an infinite amount left. If you have an infinite quantity of: spam from Mrs. Mobuto Sese Seko, e-texts of Harry Potter, zoophilia .jpgs, Holocaust Denial .html pages, etc. and the justice system by dint of heroic effort cuts it in half, how much do you have left? An infinite quantity!

And unlike normal law enforcement vice suppression where the illegal activity pops up somewhere else. On the Internet, the suppressed activity pops up in the same place. While illicit activity in the real world may take place in secret and be hard to find, on the Internet it advertises its presence.

Only on the Internet, do most stories about a judge ordering some information suppressed come with pointers to mirror sites where the curious can find the suppressed information.

And as Even if the world's governments were to accomplish the fantasy goal of selling "the Internet" to Mr. Bill or imposing rigorous authentication controls on it at the root level, it is trivial to recreate an open network assuming sufficient demand as a new encrypted Virtual Private Network running over the tamed Internet.

Quite a strange legal entity indeed.

Note that the principalities and city states of the late middle ages were not replaced by nation states because people suddenly decided that it would be a good idea. They suddenly decided that it would be a good idea once those earlier organizational forms were rendered obsolete by the use of gunpowder.

If cheap ubiquitous communications together with the technologies of encryption and authentication render current organizational forms obsolete, it will be nothing new. Merely history repeating itself. The invention of the printing press broke the Europe-wide monopoly of the Roman Catholic Church and made Science and Capitalism possible merely because it allowed the cheap dissemination of knowledge. Modern communications lowers the cost of information transfer to near zero (including that information we label money and adds other features (as above) which make legal controls very difficult. Definitely a new legal regime.