July 9, 2014

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Here We Go Again

Rep. John Conyers has introduced the Author, Consumer, and Computer Owner Protection and Security (ACCOPS) Act of 2003 in the House of Representatives.

The oddest provision of the bill is this one:

(a) Whoever knowingly offers enabling software for download over the Internet and does not–

(1) clearly and conspicuously warn any person downloading that software, before it is downloaded, that it is enabling software and could create a security and privacy risk for the user’s computer; and

(2) obtain that person’s prior consent to the download after that warning;

shall be fined under this title or imprisoned not more than 6 months, or both.

(b) As used in this section, the term `enabling software’ means software that, when installed on the user’s computer, enables 3rd parties to store data on that computer, or use that computer to search other computers’ contents over the Internet.

As so often happens in these sorts of bills, the definition has unexpected consequences. For example, it would apparently categorize Microsoft Windows as “enabling software,” since Windows offers both file server facilities and network search facilities. But the original Napster client, lacking upload and search facilities, would not be “enabling software.”

Note also that the mandated security and privacy warnings would be misleading. After all, there is no reason why file storage or search services are inherently riskier than other network software. Misleading warnings impose a real cost, since they dilute users’ trust in any legitimate warnings they see.

The general approach of this bill, which we also saw in the Hollings CBDTPA, is to impose regulation on Bad Technologies. This approach will be a big success, once we work out the right definition for Bad Technologies.

Imagine the simplification we could achieve by applying this same principle to other areas of the law. For example, the entire criminal law can be reduced to a ban on Bad Acts, once we work out the appropriate definition for that term. Campaign finance law would be reduced to a ban on Corrupting Financial Transactions (with an appropriate exception for Constructive Debate).