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Trade Secrets and Free Speech

August 26, 2003 by

Yesterday the California Supreme Court issued its ruling in DVDCCA v. Bunner, a case pitting trade secrets against freedom of speech. The court ruled that an injunction against disclosure of a trade secret is valid, even though it restricts some speech.

The case relates to CSS, the encryption scheme used to scramble the data on DVDs. CSS was developed in secret, and an outfit called the DVD Copy Control Association (DVDCCA) claims that the details of CSS are its trade secret. Andrew Bunner posted DeCSS, a program that unscrambles CSS-encrypted content, on his web site. DVDCCA sued Bunner for misappropriating its trade secret. A lower court issued an injunction, ordering Bunner not to publish DeCSS. Bunner appealed, arguing that the injunction violated his free speech right.

The lower court ruled that Bunner knew (or should have known) that CSS was a trade secret, and that Bunner knew (or should have known) that the original source of DeCSS had gotten the trade secret improperly. I think these factual findings were highly questionable, but the Court accepted them for the purposes of its decision. So the issue before the state Supreme Court was merely whether an injunction against publishing a trade secret violates freedom of speech. The Court ruled that it does not, at least not when the speech is software code.

Why does it matter that the speech is software code? As Seth Finkelstein points out, the Court seemed to say that software code cannot be of public concern, because only experts can read it:

DVD CCA’s trade secrets in the CSS technology are not publicly available and convey only technical information about the method used by specific private entities to protect their intellectual property. Bunner posted these secrets in the form of DeCSS on the Internet so Linux users could enjoy and use DVD’s and so others could improve the functional capabilities of DeCSS. He did not post them to comment on any public issue or to participate in any public debate. Indeed, only computer encryption enthusiasts are likely to have an interest in the expressive content– rather than the uses–of DVD CCA’s trade secrets. (See Tien, Publishing Software as a Speech Act, supra, 15 Berkeley Tech. L.J. at pp. 662-663 [“Programming languages provide the best means for communicating highly technical ideas–such as mathematical concepts–within the community of computer scientists and programmers”].) Thus, these trade secrets, as disclosed by Bunner, address matters of purely private concern and not matters of public importance. …

This seems like a pretty odd position to take. Information about Enron’s finances is of public concern, even though only accountants can interpret it in its raw form. Information about the Space Shuttle wing structure is of public concern, even though only a few engineers understand it fully. CSS is a controversial technology, and information about how it works is directly relevant to the debate about it. True, many people who are interested in the debate will have to rely on experts to explain the relevant parts of DeCSS to them; but the same is true of Enron’s accounting or the Shuttle’s engineering.

Odder still, in my view, is the notion that because DeCSS is directly useful to members of the public, it is somehow of less public concern than a purely theoretical discussion would be. It seems to me that the First Amendment protects speech precisely because the speech may have an effect on what people think and how they act. To suppress speech because of its impact seems to defeat the very purpose of the free speech guarantee.

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It's Ten O'Clock. Do You Know What Your Computer is Doing?

August 19, 2003 by

Last week saw a scary story about a British man who was acquitted of the charge of possessing child pr0n. [Deliberate misspelling to keep dumb censorware tools from blocking this site. But some censorware programs will block this anyway. Heavy Sigh.] The illegal material was on the man’s computer, but he argued that an intruder had put it there, and he presented evidence to support that defense.

Although I have no special knowledge of his particular case, I know the kind of scenario he described does really happen. At least two innocent people I know have had their computers turned by intruders into pr0n distributors.

The lesson of these incidents is that we have less control over our computers than we have over our physical territory. Nobody would turn a file drawer in your office into a distribution center for contraband; but they might do that to your computer. Inevitably, innocent people will be accused of crimes, and they will suffer, even if they are eventually acquitted. And of course, some real bad guys will get away with crimes by blaming them on nonexistent intruders.

The best way to address this kind of problem is to make sure that people retain control – in practice as well as in theory – over their own computers. When we erode that control, whether we do so by technical or legal means, we are making the bad guys’ jobs easier.

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Bizarro Compliments

August 11, 2003 by

To a technologist, law and policy debates sometimes seem to be held in a kind of bizarro world, where words and concepts lose their ordinary meanings. Some technologists never get used to the bizarro rules, but some us of do catch on eventually.

One of the bizarro rules is that you should be happy when the other side accuses you of lying or acting in bad faith. In the normal world, such accusations will make you angry; but in bizarro world they indicate that the other side has lost confidence in its ability to win the argument on the merits. And so you learn to swallow your outrage and smile when people call you a scoundrel.

Which brings us to Brigid Schulte’s electronic voting article in this morning’s Washington Post. The article reports that the computer scientists’ campaign for more secure (and less secret) electronic voting technology is getting some real traction, especially in light of the recent Johns Hopkins report detailing severe flaws in a Diebold e-voting product. The computer scientists’ progress is certified, bizarro style, by none other than the head of the Federal Election Commission’s Office of Electrion Adminstration:

“The computer scientists are saying, ‘The machinery you vote on is inaccurate and could be threatened; therefore, don’t go. Your vote doesn’t mean anything,’ ” said Penelope Bonsall, director of the Office of Election Administration at the Federal Election Commission. “That negative perception takes years to turn around.”

You can’t buy that kind of bizarro endorsement!

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Guided Voting

August 7, 2003 by

Eugene Volokh offers an interesting post on “guided voting,” a simple idea with important implications.

Voters often rely on the recommendations of others, such as political parties, interest groups, or well-informed individuals. For example, if I have a friend on the local school board and I trust her judgment about school-board matters, I might follow her advice about how to vote in the next school board election. This may be a perfectly rational decision for me to make – my friend’s choices may advance my beliefs more than my own decisions would, if the differences between her political views and mine are outweighed by her superior understanding of school board issues. Many voters would probably feel the same way about taking voting advice from political parties or interest groups.

Prof. Volokh suggests that if voting is done over the Net, then some centralized web site could provide guided voting services to users. The user would tell the site how his vote should be determined, and the site would then prepare a little computer program designed to cast the user’s votes in accordance with his preferences. A voter might choose to accept advice from several sources, with some procedure for resolving disagreements among those sources.

From a purely technical standpoint, guided voting could be used with any voting technology. With non-electronic technology, a guided voting service could print out a sort of checklist that the voter could take into the voting booth. With electronic voting technology, the guided voting service could print out some kind of bar code, which the voter might feed into a scanner in the voting booth.

This might seem at first like a questionable idea, but it doesn’t differ much from what many people already do. Most people make up their minds before they reach the polling place. And most people, I would expect, rely heavily on the recommendations of others in deciding how to vote. Guided voting is just another step down a well-trodden road.

The more problematic aspect of Prof. Volokh’s post is in his suggestion that recommenders collect and use statistics about how many votes they are influencing.

Moreover, guided voting would for the first time let groups actually measure exactly how influential its recommendations are. The [system’s] organizers can tell each group how many voters in each district followed its recommendation. They can even count the votes in which this group’s recommendation made the difference, rather than just being redundant of the other recommendations that the voter was following.

So when group X comes to a legislator to lobby him about some issue, it won’t just say “We have 2000 members in your district” or “We’ll spend $30,000 in your district on this issue.” Rather, it will for the first time be able to say “Our recommendation last election changed 15,000 votes in your district. What will you do to make sure that we recommend you next time?”

These kinds of statistics are not a necessary consequence of guided voting. Although Prof. Volokh’s centralized-website system would gather these statistics, a less centralized guided voting system need not do so. And in my view, it’s important to maintain the secrecy of each vote, so that nobody can tell for sure who is voting for which candidate.

In any case, some kind of guided voting seems inevitable, given the complexity of many ballots and the advance of technology.

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Email Redesign Not Helpful

August 5, 2003 by

Some have argued that we can address the spam problem by redesigning SMTP, the basic email-handling protocol used on the Net. Eric Rescorla rebuts that argument with a clear and cogent explanation of why the real problems lie elsewhere. Required reading for those who want to understand what can be done about spam.

The case for replacing SMTP (which Eric rebuts) reflects a general fallacy about the Internet. The fallacy goes like this: the Internet was not originally designed with security in mind; the Internet as designed fails to provide some desired security guarantee; therefore if we redesign the Internet we can achieve the desired guarantee. The error, of course, is in the hidden assumption that the desired guarantee is achievable at all. In the case of spam, there doesn’t seem to be a technical solution.

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