Recently, it feels more and more like the law is failing to represent the world we live in – specifically, lawmakers seem to be struggling to understand the role that technology plays in everyone’s lives. There is a tendency to think of it as distinct, but as increasing online harassment and the real-life consequences of that show, it really can’t be treated that way anymore.
Partly, this is down to the huge layer of complexity a joined-up world creates. It’s perfectly possible to break a law in another country from your living room. It’s also possible to hide your identity via a randomly-generated layer of proxies. Setting up anonymous, untraceable Twitter accounts specifically to harass people is essentially a popular hobby at this point.
On the internet, identity is fluid. In the case of Ross Ulbricht, recently tried as the mastermind behind the Silk Road site, proving his identity was the key focus of the prosecution – the crimes had a clear trail, the difficulty came in connecting him to the online identity “Dread Pirate Roberts”. The modern-day equivalent of getting Al Capone on Tax evasion is proving a particular laptop belongs to a particular person, and that they really like The Princess Bride.
There are the weird edge cases, like Barrett Brown (linking to material provided by hacking, not the hacking itself) or Aaron Schwartz, where the illegality of what they have done (or at least the part they were tried for) is disputed. Without tech-literate judges, prosecutors can push for whatever they think they can get away with. Dangerous precedents can be created in this environment.
One huge problem is pace of change – who can truly say they’re on the cutting edge of the technologies they work with daily, let alone have the sort of understanding of networking, security, encryption technologies that would be needed to effectively draft fair legislation in this area? When the UK’s Counter-Terrorism and Security Bill was being introduced, bringing incredibly wide-ranging surveillance powers with it, one of its key proponents stated:
“I am not a tweeter. We have Facebook and Twitter. Somebody tried to explain WhatsApp to me; somebody else tried to explain Snapchat. I do not know about them, but it is absolutely clear that the terrorists and jihadists do.”
This is not a level of understanding (or reasoning) that instils confidence. One issue that is difficult to address is that a lot of the technologies used in criminal behaviour, such as TOR or even basic encryption are all inherently useful – they’re tools, and can be turned to whatever purpose their user can find for them.
From where we are now, addressing all these concerns on a local, not to mention international level, looks like a truly enormous endeavour, but the reality is this is the world we live in, and lawmakers and law enforcement need enough understanding to reflect that.