When I started this blog back in 2002, I named it “Freedom to Tinker.” On the masthead, below the words Freedom to Tinker, was the subhead “… is your freedom to understand, discuss, repair, and modify the technological devices you own.” I believed at the time, as I still do, that this freedom is more than just an exercise of property rights but also helps to define our relationship with the world as more and more of our experience is mediated through these devices. I also believed that the legal tide was running against the freedom to tinker, as creative uses of technology were increasingly portrayed as illegal or deviant behavior. Now, at last, things may be starting to change.
The biggest enemy of the freedom to tinker is the “permission culture” in which anything we want to do requires permission from some powerful entity. Permission culture punishes us not for crossing boundaries or causing damage, but for acting “without authorization”—and it cranks up the penalties to make sure we get the message. Permission culture tells us that we don’t own the things we buy, that we are bound by contracts we have never seen, and that breaching those contracts is a felony punishable by years in prison.
Of course, there are people doing genuinely bad things with technology. There are real problems to be addressed, and real criminals who deserve punishment. But too often the response is not to focus prevention and enforcement on the bad acts and actors, but instead to expand the permission culture even more. We’re worried about elite foreign cyberwarriors; but the response is to impose years of prison time for accessing an unprotected website. We’re worried about massive copyright infringement; but the response is to tell people they can’t unlock their phones.
The good news is that the public is starting to push back. The recent uproar about phone unlocking has focused attention on the over-expansion of copyright law. And the harsh treatment of people like Aaron Swartz and Andrew “Weev” Auernheimer has sparked a pushback against over-criminalization and over-punishment of access to information.
We see this in Kyle Wiens’s recent Wired piece, “Forget the Cellphone Fight — We Should Be Allowed to Unlock Everything We Own“. We see it, too, in the Supreme Court’s opinion in Kirtsaeng v. Wiley, which affirms the importance of a “you bought it, you own it” approach to copyright.
These developments open the door to a new discussion about the freedom to tinker—but only if we keep our focus on the big picture. We should work for the right to unlock our phones. But at the same time we should remember that there are plenty of other devices we should be able to modify and use freely. We should work to address the specific flaws in copyright law and the Computer Fraud and Abuse Act. But at the same time we should remember the need to focus cybercrime law on the real bad guys. By all means, let’s fix lesser problems when we can. But let’s recognize, too, that we should be striving for more.
Most of all, those who support different aspects of the freedom to tinker need to recognize themselves as allies. If you’re motivated by phone unlocking, or if you’re passionate about preserving white-hat research, or if you’re trying to protect the legality of a legitimate but disruptive product, what you’re really fighting for is the freedom to tinker. Even if you disagree about other political issues, you can be allies on this issue. Let’s use this moment as an opportunity to restore balance to the law.