Monday, 09. September 2002

p2p, source code, software, data, computers: what does all this really mean

Prof. Felten tells us about the Berman-Coble Bill trying to define what a peer2peer network is:

'peer to peer file trading network' means two or more computers which are connected by computer software that--
(A) is primarily designed to -- (i) enable the connected computers to transmit files or data to other connected computers; (ii) enable the connected computers to request the transmission of files or data from other connected computers; and (iii) enable the designation of files or data on the connected computers as available for transmission; and
(B) does not permanently route all file or data inquiries or searches through a designated, central computer located in the United States;

Having spend the whole spring of 2000 trying to find out what "data" means in the context of german computer-fraud law (see "Der Datenbegriff im Recht" in Juristische Rundschau, 2/2002 S. 52ff, de Gruyter, ISSN 0022-6920 for results) I can't stop to comment on this:
The court system and legal doctrine is build all arround definitions. While defining things like cruelty, carelessness and such stuff is a well understood problem for lawmakers and courts, technical circumstances seem to be a major problem. A early and extreme example is the german Reichsgericht (then the highest court) trying to define what should be considered an Railway in 1879. (RGZ 1, 247, 252) It took them 124 words (in german):

An enterprise, directed toward repeated progressive movement of persons or things over not whole insignificant space distances on metallic basis, which is defined by its consistency, construction and smoothness for the transport of large weight masses, and/or the achievement of a relatively great speed of the transport motion, and by this characteristic in connection with in addition to the production of the transport motion used natural forces (steam, electicity, animal or human muscle power, at uneven level of the course already the own weight of the transportation containers and their charge, and so on) with that a relatively enormous (depending upon the circumstances only in aimed at way useful, or also human life destroying and the human health hurting) effect to produce is capable of of enterprises of the enterprise on the same. (If you consider this incomprehensible don't blame it on the machine translation - the german text isn't any better

So there has always been a problem for the legal system describing technical matters. See my snippet "What is software? What are Computers?", Prof. Felten's Source Code and Object Code and Prof. Lessig's Open Code = Closed Code? for examples. I think we need serious research on the extend of this problem and how to deal with it.

Some observations on this subject:

• Law professionals (for the sake of argument I consider lawmakers 'law professionals') are mostly never techno-savvy. They are even proud of it citing "judex non calculat" as often as possible.
• Technical people tend to think in binary terms which makes it hard for them to understand legal matters.
• A responsible law-making process can take years, which means that the technology landscape can completly change while a law is in the works.
• With most things law professionals have to discuss, they think they can understand them in depth with their everyday life experience. But they usually do not understand thechnical circumstances. Think of "The signature and the paper of the check in question could be clearly identified as forgery." versus "The file wasn't linked from the Website but residing unprotected in a public readable and listable webdirectory so it could be easily accessed by modifying the URL."
• Since law professionals are usually not tech-savy or even technophobe they don't like thinking about technical problems and so the thoughts are not as elaborate as they should be. "Just write something down about decentralized networks and that's it."
• While it might often be helpful that lawmakers leave the courts the privilege of definition (especially in criminal law within certain limits) I don't think this is helpful for technology laws. With them the absence of clear cut definitions seems mostly lead to fear, doubt and court roulings which many consider unfair.

I don't consider this explanations satisfying, if you have better ones, please notify me about it.
But I'm sure that before legal research on anything 'cyber' could successfully make meaningful steps forward we need a common vocabulary of well thought terms and definitions so we know the basics of what we are talking about when we are discussing higher complexity concepts.
09:29 | #

disLEXia, a research project by Maximillian Dornseif