Schneier on Security

Clive Robinson • January 15, 2013 7:41 PM

@ SJ,

It appears to be a worry shared by Ayn Rand and George Orwell

You forgot to mention George Orwell thought about it and published about it atleast a decade beforr Ayn Rand.

When I was considerably younger I had the misfortune of reading Ayn Rand’s epic (fail) it was to be quite honest an unpleasent read at best, lacking in almost all forms of originality even the plot was a cobble together of unacknowledged borrowings from earlier works by others.

Perhaps the only Ayn Rand originality was the arrogance, disempathy, discordance and utter unbelivability of the characters personalities.

Even L Ron Hubbard (father of Scientology) and his similar unbelievable charecter personalites, managed some kind of limited belivability in the story line that could be just about accepted in the Pulp Magazine SciFi genre of the preceding twenty years.

Clive Robinson • January 20, 2013 2:02 PM

@ Roger,

I suggest that anyone interested in the case should read Professor Orin Kerr’s two part essay…

Whilst your three points are a fair comment of Prof. Kerr’s essays, I would advise anyone reading the essays to do so with quite a degree of caution.

Prof Kerr’s argument is shot from the get and go by his basic assumptions and as such the argument he presents is at best facile and picayunish, at worse faux and seeking to distort peoples opinions with baseless or false argument, bordering on a hatchet job or a desire to push his own agenda.

Whilst I’ll leave each reader to make up their own mind, I will highlight one of several such failings Prof. Kerr has made in his opinions.

In part two of Prof Kerr’s opus he puts forward his opinion that Aaron should be punished and by the way he voices it by criminal prosecution at a level of atleat Fellony.

Which we know from the way the extreamly punitive U.S. Justice system works would irrespective of actual time or fine would make Aaron a life long exile from society, unable to vote and hold any kind of federal or other similar proffesional job, obtain a loan for education etc etc.

So before advocating the equivalent of the destruction of an individual and their rights to live and function as part of society I would assume that a persons reasoning would need to be solid as would the facts they present.

But are they in Prof. Kerr’s case? Personaly I don’t think so, but again I urge people to think carefully and judge for themselvs.

So what basis does Prof. Kerr give for this opinion that Aaron should be made a fellon and cast out from participating in society?

Well I’m not sure Prof. Kerr’s reasoning is sound or some of what he portrays as facts are anything other than supposition. In fact I suspect him of sailing close to the point of being malicious in order to sound off on his view of what aspect of the law should be changed.

First off Prof. Kerr pulls a Cardinal-duc de Richelieu attack which is an even more discredited debating tactic than that of using a Straw Man. As such the Richelieu attack is much beloved by Dictatorships, Kangaroo Court’s and all other repressive regimes, and of recent times supposed democracies such as the US, where “the means justifies the ends” arguments have come to the fore, so much so it is being used to destroy the protected right of “Free Speech”. Something I assume Prof. Kerr is fully cognizant of.

Basicaly what Prof. Kerr does is pull up something that Aaron wrote back in 2008 and put on the Internet at a time he was probably under Federal investigation (it’s not entirely clear from what I’ve seen when the first Federal Investigation started and ended and when Aaron was made aware of it).

Proff Kerr then argues that this is not just the work of a genius but a “serious legal nerd” and thus implies it’s in effect a genius giving “a call to arms” for others to rally behind “to commit criminal acts”. And thus a prima facie argument as to Aaron’s state of mind and behaviour.

Well I’d urge people to read it and whilst doing so remember that Prof. Kerr believes it calls for criminal activity, from a genius who has been successfull in busines. Ask yourself seriously does it actually call for any criminal acivity?

Well no I don’t think it does not, whilst it certainly urges people to think seriously about property they already own (through taxes etc) that has been at best questionably coraled by others for private gain. And as he indicates in some cases illegaly under dures or simple theft (Reed-Elsiver and Google respectivly) by dint of monopolistic force.

Again does it read like a call to others to committ crime?

Well again to me no, it simply reads like the writings of an ordinary persons drawing to the attention of others what is an illegal act by corporate entites who have a monopolistic advantage and highlighting the injustice of it.

And then further highlighting what others HAD done (passsword sharing etc), before indicating what was possible that did not involve or require actual criminal activity [1].

Thus not even close to a Manifesto for committing criminal acts, simply one that seeks to pursuad by reasond and thoughtfull argument that there are other ways[1], that whilst questionable by some are not specificaly codified against in most jurisdictions. Basicaly what you would expect of an intelegent person who has been involved at senior levels in a successful business [4].

So I would argue it is a good country mile from Prof. Kerr’s assesment at best. Thus I do not belive it even remotely portrays a state of mind that has, as a given, that it’s writer has set themselvess on the path of criminal acivity. Let alone one that would result in a felony conviction.

Further you also have to remember that Aaron had already been investigated and not prosecuted for what is arguably a more serious series of actions. So arguably he was already moderating his behaviour in a safer direction so as to avoid criminal activity (as JSTOR and belatedly MIT pointed out to the prosecutor).

But Prof. Kerr has taken the Cardinal’s proverbial “half dozen lines to find evidence enough to hang him”, and worse he has done it knowing full well that neither Aaron or those close to him can argue this was not Aaron’s state of mind in as public a way as Prof. Kerr has. As Shakespear noted “The good that men do is oft intered with their bones”…

From this Prof. Kerr goes on to argue that Aaron’s state of mind was such he was destined to commit “Civil Disobedience”. And Prof. Kerr’s definition of “civil disobedience” mean that Aaron must not only committ to a criminal act, but further to knowingly bring it down upon himself. And thus as what Prof. Kerr called a “serious legal nerd” must have knowingly performed a criminal act in full acceptance of all the potential outcomes.

Well there is a problem with this, firstly “Civil Disobediance” does not of necessity involve breaking the law in a criminal act as Prof. Kerr assumes. It can be as simple as ensuring ones legal rights against those in a position of authority or monoopoly who are actually committing criminal acts (which Aaron mentions in the Manifesto). You only have to look at what went on with denying African American’s the right to register to vote to know this. Something I would assume Prof. Kerr is atleast aware of if not extreamly conversant with.

From Aaron’s previous activities with a Federal DB, you could sensibly argue he was trying to make available publicaly that that the public had already paid for and thus owned. But that this public property had been taken from those who had paid for it by corporate entities that had sort and succeeded in puting a lein on the property by their monopolistic activities. Now as far as I’m aware the US has laws that makes monopolistic activites illegal. Thus arguably Aaron was seaking to break an illegal embargo not to committ a criminal act. The fact of the timing of his activites indicates quite strongly that Aaron’s aim was not to access JSTOR’s DB illegaly (something that JSTOR by their actions of writing to the prosecutor clearly indicated).

It is notable that in his second article Prof. Kerr neatly avoids stating what criminal act he belives Aaron is guilty of, he mearly refers to Aaron supposadly hiding his face and running away when chalenged. And thus uses a version of the “Do you still beat your wife” argument that any one who runs away must be guilty of something. Rather than the more obvious point that someone is avoiding conflict with an unknown assailant who might then committ some crime against their person. Yes some US States have “stand your ground” legislation but only a fool would rely on that as a defence for being involved in some kind of physical altercation that in most cases would be regarded as a criminal act. To put it simply running away when a person unknown to you assaults you in some way — which raising their voice, arms, running towards etc all is, — is sensible and prudent action commensurate with some one wishing not to commit a criminal act, rather than proof somebody knows they have committed a criminal act as Prof. Kerr would have you belive.

It is very unclear from the publicaly available information as to if Aaron did anything that was a tort let alone a criminal act. From what has been written the only realistic charge would be “theft of electricity” with a value of a few cents, on the assumption he actually pluged the laptop into the supply, and that is dubious at best. Now it is possible that Prof. Kerr has other information over and above that which is publicaly available, but if he has he certainly has not said so or even intermated he has.

Now I could go along and kick the other legs out from Prof. Kerr’s various arguments but as I said at the begining I’ll leave that ot others to judge.

[1] Some will regard this as a call to break “terms of service”, but as Aaron ably demonstrated against JSTOR you do not even have to do that. JSTOR was afterall providing free and unfettered access to their DB for a month as part of an offer. They did not say in their TOS or offer documentation there was a limit on how much of the DB you could access.

[2] As has been pointed out by some of the legal brethren in the past, and currently with this occasion, the crime of “theft” requires the demonstratiion of either a loss, or for a monetary gain to be made that can then be shown as a loss [3].

[3] Whilst the “monetary loss” viewpoint is appropriate for tangible “Physical world objects” and thus has been for a thousand yeard or so, as an argument it compleatly breaks down with intangible “Information world objects” we have today. Where the copying of the information has no tangible equivalence to stealing, but considerably more to that of taking a photo.

[4] It has been said that the difference between a bureaucrate and a businessman is that “They both are subject to a book of rules, a bureaucrat who follows the rules without question is safe from all, whilst a businessman that fails to push at the edges will lose to competitors who do”.

[5] Since the times of England’s Queen Elizabeth I, the idea of legal protection for ideas to protect inventors has become enshrined in law. However it went wrong from day one when Good Queen Bess refused a patent on a stocking knitting machine, apparently because it would not work with silk. Since then the lawyers have compleatly mangaled the intent and rather than protecting the originators of ideas it has been of more use to persecute them in one way or another.

Clive Robinson • January 22, 2013 4:42 AM

@ Russtopia,

Sapir-Whorf Hypothesis

Agh “Linguistic Relativity”, for which the joke ‘I’m Pink therefore I’m Spam” must have been made for [1] 😉

It is a troubled field of endevor that has little hard fact and much criticism by “strawman” in it.

It is only now getting to the point where other theories of mind are sufficiently developed and technology sufficiently advanced that realistic experiments are begining to be possible, not that I realy expect coonclusive results in my lifetime.

Humans notice things that strike them as odd and link these odd things together and thus start looking for correlation. Unfortunatly such thinking is often a way for the person to express racial or social economic prejudices [2].

It has frequently been argued that nations should be ranked by various measures, and it just so happens that these measures tend to favour those proposing them and their arguments. One such is the industrial development of a nation which tends to favour nations in the northern part of the northern hemisphere that tend to traditionaly have the majority of patents and scientific papers [4]. However by other measures (such as carbon footprint or average expected life or social care etc) these nations can be shown to actually be of a significantly different ranking that their politicians would not like.

Even where such conscious or subconcious prejudices are not the cause it is difficult to distinquish between cause and effect, or the order of events as the old saying has it “the chicken or the egg”.

One such observation is that a language or the people who speak it “are beautiful”. One such case is the “sophistication” of the French [3] (and other romance languages).

However there is some impirical evidence that language does effect genetics, or atleast the early development of the senses. Some languages are more pitch based than others, that is in terms of frequency not the more normal relative frequency. It has been found through music where absolute pitch is more important that the incidence of “Pitch perfect hearing” is an order of magnitude greater in those speakin such languages…

Differentiating between genetics and early life brain development is something else that is somewhat hotly contested. Sometimes it can be fairly easily shown that society or culture has a direct genetic effect on the population (alcohol tolerance) simply because it can be easily experimentaly measured.

And this is where technology rears it’s sometimes ugly head, as we have seen with investment in “mind reading” technology.

[1] Sapir-Whorf is one of those notions that comes and goes with the regularity of comets. And as such each time it’s head pops up above the parapet it gets savaged and chopped to pieces by it’s criitics (just as spam is chopped meat, frequently from the head end of a pig). Unfortunatly it is a hypothesis that is difficult to test and experiments in the area frequently use colour representation and use. Unfortunatly humans tend to go with Black, White and Red more due to the way the human eye tends to work (look up night vision to see why) which kind of puts Pink center stage as it were.

[2] Nearly all cognative and behavioral research going back historicaly for as long as the thoughts could be recorded can be shown to be biased in the direction of “moral superiority”. Even today it is very difficult to stop a researchers “world view” impinging on the way they conduct experiments, and this alone could be construed as proof of linguistic relativity.

[3] The argument is simple, the French language contains a lot of phonems that require the forward part of the face be used thus the development of those muscles gives the appearance of high cheak bones. As it can also be argued that the ability to be adroit in a language offers a form of breeding privilege through higher sociatal status then this will have a genetic re-enforcing mechanism.

[4] It has been noted on many occassions that the number of patents issued be they primary or secondary has in the past varied significantly with the language spoken. It has been used as an argument in politics frequently as to the supposed superiority of one nation over another. However in more recent times it can be shown from the numbers of published academic papers that getting out and actually travelling to places and meeting others has a more pronounced correlation than native language or state.

[4]