I’ve been posting a daily series of step for my Facebook friends to secure their digital lives before Trump takes office. The idea is that each step is specific, concrete, actionable, and small: something you really can do in a day. By the time Trump is sworn in, you’ll be reasonably secure against a lot of threats, public and private. I’ll update this post with links as I add new entries.
General Resources:
In my obituary for Sheri S. Tepper, I said that her novel Raising the Stones “contains the single best portrait of a utopia – feminist or otherwise – I have ever seen.” I’d like to say a bit more, and why that book has been a source of comfort and inspiration for me for years.
Massive spoilers within.
The setting for the book is that humanity has recently turned the planet of Hobbs Land into a quiet agricultural colony. It was previously occupied by a placid species called the Owlbrit, who moved about on detachable tentacles and left it dotted with small circular temples. A few of the inhabitants of Settlement One have taken up the Owlbrit custom of leaving small sacrifices of mouselike creatures, a practice recommended by the last surviving member of the species when a linguist asks whether such sacrifices are necessary:
“Not necessary,” the Old One had scraped with his horn-tipped tentacles in a husky whisper. “What is necessary? Is life necessary? Necessary to what? No, sacrifice is not necessary, it is only recommended. It is a way, a convenience, a kindness.”
Birribat Shum, one of the settlers who has helped keep up the temple, dies. His companions, without clearly being able to say why, decide to bury him nearby. And then, very gradually, things start to change. The children start rebuilding a ruined Owlbrit temple. The people of Settlement One are calmer, happier; their productivity goes up. No one really talks about it, but one day a group goes out to where Shum is buried and digs up the gravesite. His body has been replaced by a heavy mass of fungus that spreads out through the earth in fine filaments. Most of it they place in the rebuilt temple, but one girl carefully cuts out fifteen hand-size pieces. Then, whenever a burial is being conducted in another settlement, someone slips one of the fungal pieces into the grave – and that settlement grows more peaceful and productive, too. So it spreads, the filaments growing underground and being transplanted. Everywhere it spreads, people start building round temples and offering small sacrifices, and the natural world bursts forth with massive groves and forgotten species.
There is more, including actual characters and an actual plot, but the Hobbs Land Gods have stuck with me, in part, for their humble simplicity. They don’t give orders, they don’t make demands, they don’t try to change people all that much. Tepper works mostly by indirection; we see what people who have been in contact with the dust-like filaments do, but they avoid talking too much about it.
As best I can glean, most of the time, these “gods” only ever do two things. First, they tell people things it would be useful for them to know – an irrigation ditch needs mending, your co-worker needs a wrench, the gods will spread if transplanted to other planets. As one character puts it:
I know some things. They come to me solid, like pieces of wood, all carved to fit and nailed down. I just know, and I open my mouth and out it comes, and that’s that. No questions, no hesitations.
And second, they make people less afraid. Not of everything: if a harvesting machine is bearing down on you, the gods won’t stop you from running. Just of the things one shouldn’t really fear: unfamiliar customs, other people’s affairs that aren’t your concern, the intentions of people who mean no harm.
That’s it. For most people, the Hobbs Land Gods provide a simple, sensible, way of living better. They calm down a bit, they cooperate more, they go on for the most part as they have before. But conflict basically disappears, along with pointless destruction. And why not? Before you even think about raising a hand, you know that wouldn’t be a very good idea. So you don’t. You chose not to; you still have your free will. You simply knew enough and were unafraid enough not even to be tempted. For a few people, who prize their independence, or power, or a jealous grabbiness, something about Hobbs Land feels off: they’re uncomfortable, and they leave, which everyone agrees is for the best. What they leave behind is, as I said, a utopia.
Of course, the limits of human knowledge and the limits of human psychology are no minor matters. But out of all the things one might think in need of reform in the human condition, these are lesser changes than most other utopias depend on. If we knew a little more and feared a little less, everything really might work out all right.
I first read Raising the Stones in the spring of 1993. It has always been bound up for me with what I see as the redemptive potential of the Internet – if not quite literally, than perhaps thematically. The Internet, after all, is another almost-living network that spreads everywhere human hands carry it. It whispers needed knowledge in our ears, and maybe just maybe it might help soothe our unnecessary fears. The Internet we have is not so good at that, but the Internet we might have – the Internet we can imagine – the Internet we need – could be better.
For now, the Hobbs Land Gods remain the stuff of speculative fiction. But I carry the distant and unlikely hope that some day they may be made real. I will plant it where it might take root, and raise up the stones to make a home from which they may spread. It is a way, a convenience, a kindness.
I know now why Donald Trump won the election: because Sheri S. Tepper was no longer alive to hold him at bay. Tepper’s novels are sometimes described as “ecofeminist sci-fi,” but that barely begins to describe the spirit that pulses and crackles in her work: as wide and nourishing as the sea, and as capable of drowning you in an instant. Donald J. Trump – a misogynistic con man with an impossibly large ego, a need for outside vengeance over every slight, and a sadistic brand of dominance politics – is a Tepper villain from her literary version of Central Casting, and if life were one of her novels, he would have been grabbed and strangled by a cyborg pussy willow or crushed to death when the earth itself shook Trump Tower to pieces.
The limitless evils of man – grasping, needy, controlling, thrusting, swaggering man – were an endless theme for Tepper. In her books, women’s lives, women’s bodies, and the fertile planets they call home are almost always in danger of assault by these stereotypically male villains (not all of them men). But her grim view of the masculine power is matched by the remarkable reslience of its feminine counterpart: courageous, clever, compassionate, wily, and – when needed – hard-headed. Oh, so hard-headed. Tepper’s ecofeminism had no truck with sentimental earth-mother tropes of gentle peaceful softness. No, Tepper’s heroines (not all of them women) hit back, hard, and often in ways their male adversaries never even suspect.
Sheri S. Tepper came to science fiction late in life. For two and a half decades she worked at Rocky Mountain Planned Parenthood. Within the organization she was famous for her force of will and her insistence on institutional self-reliance: women’s health and access to abortion needed to be protected from the ground up. Lobbying is for other people who put too much trust in government. We know that we’re safe only if we take care of ourselves in ways men can’t take away no matter how hard they try. She started writing at the age of 54, near the end of her tenure at Planned Parenthood, and never stopped. Her most recent novel, Fish Tales, was published in 2014, when she was 85.
I was introduced to Tepper’s novels in the early 1990s, when she was at the absolute peak of her powers. Many of her earlier novels are fine but not especially interesting; her later work tended towards the predictable and wooden. But in the five-year period between roughly 1987 and 1992, she wrote a remarkable string of compelling, weird, beautiful, challenging, and heart-rending novels: After Long Silence (1987), The Gate to Women’s Country (1988), Grass (1989), Raising the Stones (1990), Beauty (1991), Sideshow (1992), and A Plague of Angels (1993).
I started with Grass, which I still think is her best. Marjorie Westriding-Yrarier is sent with her family to a prairie planet called Grass to try to find out why Grass seems to have been spared a plague afflicting other planets. But something is off from the moment she arrives: the local nobility are stand-offish and obsessed with a variant of fox-hunting. She starts poking around on her own, and then – suddenly, without warning, about a hundred pages before I was expecting – things are suddenly moving extremely quickly and with astonishingly high stakes. I love Grass not so much for the way everything ultimately comes together as for its exquisite suspense and pacing. There are a few set pieces – including a quiet but deeply ominous exploration of ancient ruins and a literal high-wire chase as part of a deadly monastic initiation ritual – that are up there with John Le Carre’s best.
No, I was wrong, Tepper’s best novel is the loose sequel to Grass, the gentle (for Tepper) and wonderful Raising the Stones. A quiet farming community on a quiet backwater planet sets in motion a strange and ancient … something … that doesn’t seem to bother them but deeply alarms some of their galactic neighbors. The plot unfolds with a calm elegance: things happen at first slowly and then quickly, but every twist arrives right on time and with a feeling of natural progression. The multiple villains are dastardly; the heroes believably ordinary; the resolution entirely satisfying. (There is also some stage business with portals that is exceptionally clever.)
I can’t say too much more without giving away crucial plot twists (and in a Sheri S. Tepper novel, the plot twists are always crucial), but let me say this much. Raising the Stones contains the single best portrait of a utopia – feminist or otherwise – I have ever seen. It is both genuinely appealing, in that it is somewhere I would very much want to live, and genuinely plausible, in that the changes it would require to our world are (making allowances for science-fictional speculation) something humanity might actually be able to accomplish.
Her other novels are weirder: the details of the world-building stay with you. After Long Silence takes place on a planet where trained singers must go with travelers to keep giant crystal outcroppings from shooting forth deadly fragments; Beauty weaves classics of the European fairy-tale tradition into a dystopian vision of future Earth. The Gate to Women’s Country, perhaps Tepper’s most famous novel, features a society where settlements are divided into men’s and women’s spaces. Women live inside towns, protected by the men who live in military encampments just outside (complete with phallic watchtowers). Suffice it to say that things are very much not as they seem.
A good Sheri S. Tepper novel could be counted on for three things. I have already mentioned her command of suspense and her visionary feminist imagination. (Multiple of her novels hinge, in one way or another, on unflinchingly rational family planning; another climaxes with a scene of people literally having sex with a planet.) But she was also exceptionally good at withholding and revealing information. She had a sideline (under the pen names B.J. Oliphant and A.J. Orde) as a mystery writer, and it shows in her science fiction. Sometimes, she uses the dread of the deadly unknown to have her characters and societies avert their eyes from great mysteries; other times she keeps back a crucial detail or two from what seems like a complete description. When it comes time for her to lay her cards on the table, she never does it all at once: the succession of surprises, when done right, makes for compelling reading.
Sadly, this gift gradually departed her over the course of the late 1990s and 2000. With a few exceptions, like The Margarets (2007), her later novels feature single big reveals that are easy to spot coming. Better to turn instead to her earlier work, particularly the nine short novels making up the True Game series (1983 to 1986), which starts off seeming like one thing and ends up as quite another entirely.
Let me leave you with a passage from the ruthlessly unsentimental The Awakeners (1987), which I think best captures Sheri S. Tepper’s feminist vision:
Of what good are dead warriors? …
Warriors are those who desire battle more than peace. Those who seek battle despite peace. Those who thump their spears on the ground and talk of honor. Those who leap high the battle dance and dream of glory …
The good of dead warriors, Mother, is that they are dead.
I have been thinking about presidential elections and presidential succession, and about the adage that the United States has had the longest uninterrupted history of peaceful transitions of power in the world. What does it take to lay down a track record like that? A lot of choices by a lot of people.
It is mostly true that the United States has had peaceful transitions of national power throughout its history. But there was nothing inevitable about it. We don’t have peaceful transitions just because the Constitution provides rules for elections: there have been plenty of times those rules failed or ran out. Instead, we have peaceful transitions because the losers – or those who didn’t even run but think they have something at stake – have chosen to accept the outcome and move on. I have emphasized the elections in which something genuinely new happened, but the same is true even in the seemingly uncontroversial elections, like 1816 and 1936.
Every American experiment sets a precedent, but to quote E. Donald Elliott:
No decision, not even a unanimous decision of the Supreme Court, is a precedent on the day it is decided. It becomes a precedent if it is recognized and accepted as authoritative to resolve other controversies.
The perceived legitimacy of elections matters in preserving the republic. It creates the conditions under which the losers in elections stand down because they know that if they fight on they fight alone. The last time that principle failed was the Civil War, which lasted four and a half years and killed at least 750,000 people. But neither the Confederacy nor the Union had automatic rifles, tanks, jet fighters, and nuclear weapons.
My casebook says things like, “This case involves allegations of online harassment and threats of violence.“ This raises two questions. If a case needs a warning, why include it at all? And if a case is is worth including, why warn students about it? To some people, the first question is more troubling; to others, the second.
My book and my courses feature a wide range of materials I have selected because I think they provide the best learning experience. Some of those materials are upsetting, not because I want to make my classes upsetting for its own sake, but because the world we live in is upsetting. (If you can read U.S. v Petrovic with no emotional reaction, check your empathy lobe.) Much of the anti-“trigger warning” discourse proceeds as though the classroom ideal is complete and detached emotional obliviousness. But that’s not right. It’s best to be able to encounter material – and the world – as complete human beings, both rational and emotional.
This is why the ideal of the university is an intellectual safe space – where ideas are safe to discuss, but we are also safe from them. A good classroom is one where everyone is genuinely comfortable taking on difficult material. My job is to help build that comfort. (I say help build rather than assume or impose.) That content warning is also a content assurance: we are in this together.
It’s ironic when professors give speeches about why they don’t give trigger warnings. What else are the speeches but trigger warnings given further in advance? I prefer ones closer in time, to flag the specific materials that call for more care. Maybe you want to leave yourself a few minutes before class to rest and compose yourself, maybe you don’t. I respect you enough to let you make that call. 99% of the time, there is no reason in the world to ambush students with challenging and troubling material. Present, yes; ambush, no.
As for opting out of those discussions, there are often good pedagogical reasons not to allow it. Class proceeds on a schedule; discussions are shared experiences; a course is a coherent program of study; some topics are important to pass by. Often – but not always. Sometimes a student can do an alternative assignment with no great loss of learning and without disrupting the rest of the class.
I pick the readings I think are best overall, but it’s not as though our syllabi come to us from the transcendent realm of Plato’s Forms. I make these decisions in the abstract, before the semester. But when it comes time to work with particular students, it’s often the case that there are readings and discussion topics I could replace with ones that are better for them. If a student has experience with patent law, it does little good to make them sit through Prometheus v. Mayo again. The same is true for the student who has experience with sexual assault.
Two stories. First, my recent draft on the CFAA makes a lot of comparisons with rape law in understanding “authorization” under the CFAA. A student who read the draft thought it was distracting. I thought long and hard about whether I could make the points differently. I kept most of the discussion, because the legal theory on consent has been developed most extensively and clearly in thinking about rape law. But some of the examples really were unnecessary, or could be replaced with ones drawn from elsewhere, e.g. theft law. I’ve changed them in the version that will be published. Is my paper worse because I deviated from my original ideal? No. It’s better now. A good paper is one that convinces actual readers.
Second story. I started law school in the fall of 2002. The one-year anniversary of September 11 fell on a day I had Constitutional Law. My professor decided to mark the occasion by giving a mini-speech extolling why September 11 showed the importance of the Constitution. I stood up quietly, left, and came back five minutes later, after he was done. Draw whatever conclusions you wish.
Thanks to Chris Peterson for Storifying the tweets on which this post is based.
The Sixth (sixth! sixth!) Edition of my casebook Internet Law: Cases and Problems is now available. I apologize for the lateness of this update; it was a busy summer.
The big news is a new section on the physical world. For years, people have been asking me when I was going to cover drones, robots, and the sharing economy. My answer had always been that these aren’t really Internet legal issues, as interesting as they may be. That hasn’t changed, but this spring I realized that we can still learn from Internet law when thinking about these “real”-world legal issues. With that, the section fell into place. I don’t try to teach any substantive law. Instead, I tee up what I think are interesting policy problems in ways that connect them back to the themes of the casebook: code is law, government control, generativity, etc. It’s at the very end of the book, together with some sections I love but that have never quite felt at home anywhere else: on virtual property, defective software, and social media in litigation. They make for a new chapter I call “Beyond the Internet.”
Most of the rest of the updates are the usual shuffling required to keep up with a field that continually renders obsolete things you thought you knew. I cover the iPhone unlocking fights with new materials on compelled assistance, using CALEA as the main teaching text. I added the Data Protection Directive and Schrems to beef up the E.U. materials; I added more on the limits of Section 230; I refocused the Computer Fraud and Abuse Act section on the two Ninth Circuit Nosal opinions. There’s more on Bitcoin, more on filtering, and a bit more on warrant jurisdiction. There’s a bit less on the NSA, and the usual tightening up and revisions throughout. And the typefaces are even spiffier!
As before, the book is available in two formats: a $30 pay-what-you-want DRM-free PDF download from Semaphore Press, and a $65.30 perfect-bound paperback from Amazon. This time, though, I’m happy to say that one-third of the net revenues from sales of this edition of the book will be donated to the Electronic Frontier Foundation.
In October, I participated in a delightful conference at Columbia’s Kernochan Center on “Copyright Outside the Box.” I was on a panel dedicated to computer-generated works, along with my friends Bruce Boyden and Annemarie Bridy. Our respective symposium essays have just been published in the Columbia Journal of Law and the Arts, along with a slew of other fun papers.
While this post contains some obligatory self-promotion, it also features some discretionary cross-promotion. Read my essay, yes, but read it together with Bruce’s and Annemarie’s. While the three of us came at the topic and prepared our remarks independently, when we arrived that conference, it turned out that we had three complementary takes. The resulting papers read unusually well together.
The best starting point is Annemarie’s “The Evolution of Authorship: Work Made by Code,” which builds on her earlier “Coding Creativity: Copyright and the Artificially Intelligent Author.” She gives a delightful and evocative survey of the kinds of creativity on display in works created by or with the assistance of computer programs. This isn’t a 21st-century problem, she shows; it has been haunting computer labs and the Copyright Office for almost as long as there have been digital computers. She then makes the pragmatic point that we don’t need to resolve the philosophical questions of whether computers could count as people or be creative (whatever that means) in order to fit these works inside the copyright system. Instead, we can use existing devices like giving ownership of works made for hire to the hiring party to get sensible results.
Next, read my piece, “There’s No Such Thing as a Computer-Authored Work–And It’s a Good Thing, Too.” I make the stronger argument that regarding computers as authors is affirmatively wrong: it’s a bad solution to a non-problem. I take the argument that there’s nothing interestingly new here even further back: to creative machines like Spirographs and Musikalisches Würfelspiele. Computers aren’t in this respect different in kind from previous systems that sequenced creativity between the initial designer of a process and someone who carries it out. Along the way, I do some demystification about computer-assisted creativity; working digitally makes almost no difference to the question of what counts as authorship. There is no simple answer to how we should assign copyright ownership of computer-generated works: sometimes it’s the user and sometimes it’s the programmer and sometimes it’s both. But treating “the computer” as the author doesn’t make those hard questions any easier; in fact, it tends to obscure the important distinctions that matter in particular cases.
Finally, read Bruce’s “Emergent Works,” the paper I wish I’d written for the symposium. Bruce gives the best rejoinder to my argument I can think of: that what is potentially new with computers is their ability to yield “works that consist largely of creative elements that have emerged unbidden from the operation of the program.” These works are interesting because it may not be possible to “predict the work’s content with reasonable specificity before it is rendered or received by the user.” When neither the programmer nor the user of a program can make such predictions, he argues, the possibility of “emergent authorship” is worth taking seriously. This don’t have to mean treating computers as authors in the same we treat people as authors–and Bruce agrees with my claim that there is no one right answer. But he goes further in arguing that current doctrine may not always have a good answer, either. I’ve tried not to make my own piece inconsistent with Bruce’s argument, but he pinpoints the spot beyond which my argument gives out–which turns out to be along the curve of increasingly complex work-emitting programs Annemarie describes.
Download them all now: three for the price of one.
In my opinion, any teenager enthralled by computers, fascinated by the ins and outs of computer security, and attracted by the lure of specialized forms of knowledge and power, would do well to forget all about hacking and set his (or her) sights on becoming a fed. Feds can trump hackers at almost every single thing hackers do, including gathering intelligence, undercover disguise, trashing, phone-tapping, building dossiers, networking, and infiltrating computer systems–criminal computer systems. Secret Service agents know more about phreaking, coding, and carding than most phreaks can find out in years, and when it comes to viruses, break-ins, software bombs, and Trojan horses, feds have direct access to red-hot confidential information that is only vauge rumor in the underground.
—Bruce Sterling, The Hacker Crackdown
Reposted without irony from Twitter, and lightly edited.
A few late-night thoughts about hostility on Twitter and other anti-social media.
Put aside all questions of what is legal where, what will get you kicked off of Twitter, what constitutes “harassment,” and so on.
There are two broad types of reasons to be aggressive and insulting on Twitter: personal satisfaction and serving some larger cause.
If you regularly take pleasure from demeaning other people online, you have a serious character flaw, and you should stop.
If you do it only occasionally to blow off steam, you still have a character flaw (a different and lesser one), and you still should stop.
That leaves the impersonal motivation: attacking people because it helps advance a larger and important cause you’re committed to.
I’m not going to get into the question of which causes are right or wrong. I have some opinions here, but so does everyone else.
And I’m also not going to get into the question of whether sneering insults and the like actually work at persuading or silencing anyone.
Instead, consider this: humanity is currently facing some immense, existential, planetary challenges.
In no particular order: nuclear annihilation, climate change, Internet security, resource depletion, pollution, maybe rogue AIs, etc.
Dealing with these challenges will require careful, detailed, and sustained collective action by most people on the planet.
That kind of concerted cooperation can only happen if people are broadly persuaded to agree on what to do. (Compulsion won’t cut it.)
The possibility of persuasion depends on there being spaces where people try to convince each other in good faith by giving good reasons.
Every tweeted takeout attempt is like tossing another soda six-pack ring into the sea of rational discourse: that much more pollution.
I don’t know what the critical threshold is, but there is some point beyond which rational discourse is simply impossible.
If we get there, we as a species don’t even get to try to deal with all of our real problems. Civilization collapses while we argue.
That’s the tradeoff inherent in trading vicious insults. Too many “fuck off and dies” and we all do.
So ask, “Is it worth it?” I’m not going to say it isn’t. I don’t know. Some things can be important enough to fight dirty for.
But please, please, do ask yourself whether each next drop of vitriol will do enough good to justify its debasement of our discourse.
Respectful engagement isn’t just about manners or aesthetics. Like the rule of law, it’s a basic element of our collective survival.
You would have to have been living under a rock with bad WiFi not to know about Hamilton by now. And if you know about Hamilton, you almost certainly also know about its casting: with only two exceptions, all the roles are played by people of color. This decision has been the subject of some controversy, but I think most of the discussion misses a central fact about the meaning of race in Hamilton’s casting: it has no single meaning. By my count, it does at least seven different kinds of work on stage and off.
First, casting people of color gave the musical’s creative team access to some phenomenally talented performers. The Marquis de Lafayette, Angelica Schuyler, and Aaron Burr were white, but if you insist that the actors who play them look like them, you don’t get Daveed Diggs’s lightning-fast raps in “Guns and Ships,” Renée Elise Goldsberry’s staccato flow in “Satisfied,” or Leslie Odom Jr.’s seductive croon in “Wait for It.”
Second and relatedly, casting people of color is essential to Hamilton’s musical authenticity. The show is built around musical genres created and continually renewed by people of color. There will be room for some very different productions as the show continues its outward diffusion into American culture, but given this country’s long and fraught history of musical appropriation, it’s symbolically significant that the original and official production gives this music of color to people of color.
Third, putting people of color in most of the roles makes it possible to sharpen the contrast of having a few people of no color. George III and his proxy Samuel Seabury are cast and presented as white within Hamilton’s racial universe, and they sing white, too. It all comes together in “Farmer Refuted,” where Hamilton raps his way over, under, and around Seabury’s Baroque pastiche, making the contrast between the (black) American revolutionaries and the (white) British royalists visible as well as audible.
Fourth, putting African-American actors on stage as revolutionaries helps rework the American Revolution as a moment of African-American empowerment, a juxtaposition that fuels the show. Filtering the 19th century (emancipation) and the 20th century (the civil rights movement) through the 21st (hip-hop) makes the 18th century (the American Revolution) come to life by tapping into a specifically African-American understanding of freedom.
Fifth, by making the all-white Founders black, Hamilton asserts that race doesn’t matter. Alexander Hamilton is defined more by his non-stop-itude than by his race. It’s an optimistic kicking-down of racial barriers; Broadway is open to everyone, so is high political office (thanks, Obama!), so is the world. If George Washington can be black, anyone and anything can be.
Sixty and simultaneously, Hamilton asserts that race very much does matter. Portraying these historical figures as non-white makes it obvious that the real Thomas Jefferson had a race, and that his race was white in a time and place where being white came with massive advantages. “Cabinet Battle #1” makes this explicit:
A civics lesson from a slaver. Hey neighbor
Your debts are paid cuz you don’t pay for labor
We plant seeds in the South. We create.“
Yeah, keep ranting
We know who’s really doing the planting
Seventh, casting slaveowners like Jefferson and Madison with non-white actors is a way of reclaiming American history. That history is deeply problematic (see above) in ways that the casting both acknowledges and transcends. The “your” in “who tells your story” is Alexander Hamilton, to be sure, but it is also the “slaves … being slaughtered and carted away across the waves” and all of the people pushed brutally aside in the long arc of American history. Putting people who look like them in these roles is a way of bending that arc a bit toward justice by repudiating some of history’s worst injustices.
Some of these meanings reinforce each other, while others are mutually contradictory. Resist the temptation to say that one is the right interpretation and another is wrong. Instead, accept that like so much else in this remarkable musical, Hamilton’s casting is overloaded with multiple meanings to a ridiculous degree. Like the musical, like Hamilton himself, it does everything at once.
The following is a very tentative analysis. If I have misread or misapplied the GPL, please let me know in the comments!
Indulge me. Suppose that iOS were licensed under the GNU GPL version 2 because it were built on top of the Linux kernel.1 Might that have changed how the San Bernadino case went down–or how a future case would? Perhaps
The court in the San Bernadino relied on the All Writs Act to order Apple to provide “reasonable technical assistance” to allow the FBI to submit guessed passwords to the iPhone automatically and rapidly, and without wiping the phone after too many incorrect guesses. In particular, the court suggested that Apple could comply by
providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File (“SIF”) that can be loaded onto the SUBJECT DEVICE. … The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE.
According to Apple, this order was objectionable in two respects: (1) Apple would need to create a custom version of iOS, and (2) Apple would need to use its private keys to digitally sign that custom version. Apple called this custom version “govtOS,” so I will, too. In Apple’s view, both (1) and (2) impermissibly conscripted Apple, and both (1) and (2) would have weakened iOS security in general.
Back to the license. Under the GPL, govtOS would be a “a work based on the Program”: a derivative work of the GPL-licensed components of iOS. The GPL allows licensees like Apple to “modify your copy or copies of the Program” and to “copy and distribute such modifications,” but only if they also provide “the complete corresponding machine-readable source code.” So Apple could not, without violating the GPL and becoming a copyright infringer, provide govtOS only as object code and not also as source code.
This is almost, but not quite, an All Writs canary. If Apple were required to post the source to govtOS publicly, then the fact that govtOS had been created and what it did would become public. If the All Writs order compelling Apple to create govtOS were subject to a gag order about revealing this fact, then Apple would be on the horns of a dilemma: it could either defy the court order or violate the GPL. The only way to comply with the All Writs order would be to become a copyright infringer.
At the very least, this is an argument against granting the order in the first place. Entering into a legally enforceable obligation to speak publicly about one’s compliance with government orders increases the burden those orders impose. A court might not be entirely sympathetic where a party simply enters into a contract or makes a promise to users, since the purpose of taking on such obligations is so obviously simply to thwart future gag orders. But where the requirement to speak up stems from one’s software-license obligations, a court that orders an Apple to code govtOS and shut up about it would effectively be prohibiting companies from using source-disclosing copyleft licenses without a substantial risk of being unable to comply.
Now, such a court might also opine that the company is protected from infringement liability because use of the software pursuant to a court order is fair use. But such a statement would be dictum, since the copyright owner isn’t before the court. For what it’s worth, the GPL is quite clear that as far as it is concerned, court orders do not excuse compliance with the license:
If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all.
So I think a source-disclosing copyleft license could effectively be an All Writs canary. But the GPLv2, as I understand it, isn’t quite. The issue is that the source code need not be disclosed to the public at large. Instead, the licensee need merely “Accompany [the modified software] with the complete corresponding machine-readable source code” (emphasis added). True, there is also an option to make “a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code”–but it would be Apple’s choice whether to make such an offer rather than bundle the source code with govtOS when turning it over to the FBI. Thus Apple would need to give the govtOS source code only to the FBI, not to the world at large. (For essentially the same reason, GPL version 3 isn’t an All Writs canary, either.)
This is where the difference between (1) creating govtOS, and (2) signing it, comes back in. Even with the source code, the FBI would still need Apple’s private keys (or some other vulnerability) to install it on targeted iPhones. Version 3 of the GPL is clearer and more precise on this point. Under it, the signing is a matter of “Installation Information”:
“Installation Information” for a User Product means any methods, procedures, authorization keys, or other information required to install and execute modified versions of a covered work in that User Product from a modified version of its Corresponding Source. The information must suffice to ensure that the continued functioning of the modified object code is in no case prevented or interfered with solely because modification has been made.
If you convey an object code work under this section in, or with, or specifically for use in, a User Product, and the conveying occurs as part of a transaction in which the right of possession and use of the User Product is transferred to the recipient in perpetuity or for a fixed term (regardless of how the transaction is characterized), the Corresponding Source conveyed under this section must be accompanied by the Installation Information. But this requirement does not apply if neither you nor any third party retains the ability to install modified object code on the User Product (for example, the work has been installed in ROM).
govtOS is an “object code work … in, or with, or specifically for use in, a User Product.” So the question is whether “the conveying occurs as part of a transaction in which the right of possession and use of the User Product is transferred to the recipient in perpetuity or for a fixed term.” Ironically, while the government already had “the right of possession and use of the User Product,” it did not acquire those rights and govtOS in the same “transaction.” Rather, when Apple sold the iPhone initially, in this counterfactual world, it would have needed to provide the Installation Information then–so the government would already have access to the necessary signing keys from that disclosure. The net result is that because iOS can be updated at all, version 3 of the GPL takes the FBI’s side when it comes to the code signing half of the story. If you can flash your own custom OS onto a device–technically and legally–so can the feds.
All of this is a bit of a flight of fancy, given that iOS is not, never has been, and is not likely ever to be licensed under the GPL. But I found it an interesting exercise, since the interactions between free-and-open-source licensing terms and the kind of compelled coding issues at stake in the iPhone cases are not at all obvious or intuitive. Given that law enforcement shows every sign of wanting to compel substantial assistance from software, cloud, and consumer-device companies in the future, it seems like it would be worthwhile to think through the issues in more detail.
This is obviously a bit far-fetched, but it’s not entirely absurd. iOS is based in part on members of the BSD Unix family, so parts of it are BSD-licensed. ↩︎
2016 has not been a good year for the obituary page. Already we have lost Umberto Eco, Elizabeth Eisenstein, and Bob Elliott, each of whose works I encountered at just the right time in my life. I hope to write about Eisenstein and Elliott in due course, but I would like to remember Eco with a quotation from the end of The Island of the Day Before:
Finally, if from this story I wanted to produce a novel, I would demonstrate once again that it is impossible to write except by making a palimpsest of a rediscovered manuscript–without ever succeeding in eluding the Anxiety of Influence. Nor could I elude the childish curiosity of the reader, who would want to know if Roberto really wrote the pages on which I have dwelt for far too long. In all honesty, I would have to reply that it is not impossible that someone else wrote them, someone who wanted only to pretend to tell the truth. And thus I would lose all the effect of the novel: where, yes, you pretend to tell true things, but you must not admit seriously that you are pretending.
I have posted a draft of my latest essay, Consenting to Computer Use. This is a “short” 8,000-word essay on how we should think about unauthorized access under the Computer Fraud and Abuse Act. This is a topic I’ve blogged a bit about, mostly to express how difficult some of the issues are. I was invited to be part of a symposium, “Hacking into the Computer Fraud and Abuse Act: The CFAA at 30,” hosted by the George Washington Law Review (where the final version of the essay will appear later this year).
As I was thinking about what to say and write about, I gradually realized that since authorization turns on computers owners’ consent, I ought to read up on the philosophical literature on consent in the law. Although much of that literature tends to be concerned primarily with issues of consent to sex, I found several highly illuminating analyses, particularly Peter Westen’s book The Logic of Consent. Westen makes a number of quite helpful distinctions, and when I applied them to the CFAA, the scales fell from my eyes. Easy cases became hard, and hard cases became, if not easy, than at least more clearly defined. I don’t make any arguments about how far the CFAA does or should extend, but I think I have something helpful to say to anyone making or listening to such arguments. Here’s the abstract:
The federal Computer Fraud and Abuse Act (CFAA) makes it a crime to “access[] a computer without authorization or exceed[] authorized access.” Courts and commentators have struggled to explain what types of conduct by a computer user are “without authorization.” But this approach is backwards; authorization is not so much a question of what a computer user does, as it is a question of what a computer owner allows.
In other words, authorization under the CFAA is an issue of consent, not conduct; to understand authorization, we need to understand consent. Building on Peter Westen’s taxonomy of consent, I argue that we should distinguish between the factual question of what uses a computer owner manifests her consent to and the legal question of what uses courts will deem her to have consented to. Doing so allows to distinguish the different kinds of questions presented by different kinds of CFAA cases, and to give clearer and more precise answers to all of them. Some cases require careful fact-finding about what reasonable computer users in the defendant’s position would have known about the owner’s expressed intentions; other cases require frank policy judgments about which kinds of unwanted uses should be considered serious enough to trigger the CFAA.
As always, comments welcome!