March 28, 2024

Recommended Reading: Crime-Facilitating Speech

Eugene Volokh has an interesting new paper about Crime-Facilitating Speech (abridged version): “speech [that] provides information that makes it easier to commit crimes, torts, or other harms”. He argues convincingly that many free-speech cases pertain to crime-facilitating speech. Somebody wants to prevent speech because it may facilitate crime, but others argue that the speech has beneficial effects too. When should such speech be allowed?

The paper is a long and detailed discussion of this issues, with many examples. In the end, he asserts that crime-facilitating speech should be allowed except where (a) “the speech is said to a few people who the speaker knows are likely to use it to commit a crime or to escape punishment”, (b) the speech “has virtually no noncriminal uses”, (c) “the speech facilitates extraordinarily serious harms, such as nuclear or biological attacks”. But don’t just read the end – if you have time it’s well worth the effort to understand how he got there.

What struck me is how many of the examples relate to computer security or copyright enforcement. Many security researchers feel that the applied side of the field has become a legal minefield. Papers like this illustrate how that happened. The paper’s recommendations, if followed, would go a long way toward making legitimate research and publication safer.

Regulation by Software

The always interesting James Grimmelmann has a new paper, Regulation by Software (.pdf), on how software relates to law. He starts by dissecting Lessig’s “code is law” argument. Lessig argues that code is a form of “architecture” – part of the environment in which we live. And we know that the shape of our living environment regulates behavior, in the sense that we would behave differently if our environment were different.

Orin Kerr at Volokh wrote about Grimmelmann’s paper, leading to a vigorous discussion. Commenters, including Dan Simon, argued that if all designed objects regulate, then the observation that software regulates in the same way isn’t very useful. If toothpicks regulate, and squeaky tennis shoes regulate, what makes software so special?

Which brings us to the point of Grimmelmann’s paper. He argues that software is very different from ordinary physical objects, so that software-based regulation is not the same animal as object-based regulation. It’s best, he says, to think of software as a different medium of regulation.

Software-based regulation has four characteristics, according to Grimmelmann. It is extremely formal and rule-bound. It can impose rules without disclosing what the rules are. Its rules are always applied and cannot be ignored by mutual agreement. It is fragile since software tends to be insecure and buggy.

Regulation by software will work best, Grimmelmann argues, where these four characteristics are consistent with the regulator’s goals. He looks at two case studies, and finds that software is ill-suited for controlling access to copyrighted works, but software does work well for managing online marketplaces. Both findings are consistent with reality.

This is a useful contribution to the discussion, and it couldn’t have come at a better time for Freedom to Tinker book club members.

Analysis of Fancy E-Voting Protocols

Karlof, Sastry, and Wagner have an interesting new paper looking at fancy voting protocols designed by Neff and Chaum, and finding that they’re not yet ready for use.

The protocols try to use advanced cryptography to make electronic voting secure. The Neff scheme (I’ll ignore the Chaum scheme, for brevity) produces three outputs: a paper receipt for each voter to take home, a public list of untabulated scrambled ballots, and a final tabulation. These all have special cryptographic properties that can be verified to detect fraud. For example, a voter’s take-home receipt allows the voter to verify that his vote was recorded correctly. But to prevent coercion, the receipt does not allow the voter to prove to a third party how he voted.

The voting protocols are impressive cryptographic results, but the new paper shows that when the protocols are embedded into full voting systems, serious problems arise.

Some of these problems are pretty simple. For example, a voter who keeps his receipt can ensure that crooked election officials don’t alter his vote. But if the voter discards his receipt at the polling place, an official who notices this can change the voter’s vote. Or if the voter is coerced into handing over his receipt to his employer or union boss, then his vote can be altered.

Another simple problem is that the protocols allow some kinds of vote-counting problems to be detected but not corrected. In other words, we will be able to tell that the result is not the true vote count, but we may not be able to recover the true vote count. This means that somebody who doesn’t like the way the election is going can cause the technology to make errors, thereby invalidating the election. A malicious voting machine could even do this if it sees too many votes being cast for the wrong candidate.

There are also more subtle problems, such as subliminal channels by which malicious voting-machine software could encode information into seemingly random parts of the voter’s receipt. Since some information from the voter’s receipt is posted on the public list, this information would be available to anybody who was in cahoots with the malicious programmer. A malicious voting machine could secretly encode the precise time a vote was cast, and how it was cast, in a way that a malicious person could secretly decode later. Since most polling places allow the time of a particular voter’s vote to be recorded, this would allow individual voter’s votes to be leaked. Just the possibility of this happening would cause voters to doubt that their votes were really secret.

Interestingly, many of these problems can be mitigated by adding a voter verified paper ballot, which is generated by the voting machine and dropped into an old-fashioned ballot box. (This is in addition to the cryptographically-generated paper receipt that the voter would take home.) The paper ballots provide an additional check against fraud, an audit mechanism to guage the accuracy of the cryptographic system, and a fallback in case of failure. Perhaps the best solution is one that uses both cryptography and voter-verified paper ballots, as independent anti-fraud measures.

The take-home lesson of this paper is cryptographic protocols are promising but more work is needed to make them ready for use. It seems likely that cryptographic protocols will help to improve the accuracy of elections some day.

[Thanks to Joe Hall for pointing me to the paper.]

Intellectual Property, Innovation, and Decision Architectures

Tim Wu has an interesting new draft paper on how public policy in areas like intellectual property affects which innovations are pursued. It’s often hard to tell in advance which innovations will succeed. Organizational economists distinguish centralized decision structures, in which one party decides whether to proceed with a proposed innovation, from decentralized structures, in which any one of several parties can decide to proceed.

This distinction gives us a new perspective on when intellectual property rights should be assigned, and what their optimal scope is. In general, economists favor decentralized decision structures in economic systems, based on the observation that free market economies perform better than planned centralized economies. This suggests – even accepting the useful incentives created by intellectual property – at least one reason to be cautious about the assignment of broad rights. The danger is that centralization of investment decision-making may block the best or most innovative ideas from coming to market. This concern must be weighed against the desirable ex ante incentives created by an intellectual property grant.

This is an interesting observation that opens up a whole series of questions, which Wu discusses briefly. I can’t do his discussion justice here, so I’ll just extract two issue he raises.

The first issue is whether the problems with centralized management can be overcome by licensing. Suppose Alice owns a patent that is needed to build useful widgets. Alice has centralized control over any widget innovation, and she might make bad decisions about which innovations to invest in. Suppose Bob believes that quabbling widgets will be a big hit, but Alice doesn’t like them and decides not to invest in them. If Bob can pay Alice for the right to build quabbling widgets, then perhaps Bob’s good sense (in this case) can overcome Alice’s doubts. Alice is happy to take Bob’s money in exchange for letting him sell a product that she thinks will fail; and quabbling widgets get built. If the story works out this way, then the centralization of decisionmaking by Alice isn’t much of a problem, because anyone who has a better idea (or thinks they do) can just cut a deal with Alice.

But exclusive rights won’t always be licensed efficiently. The economic literature considers the conditions under which efficient licensing will occur. Suffice it to say that this is a complicated question, and that one should not simply assume that efficient licensing is a given. Disruptive technologies are especially likely to go unlicensed.

Wu also discusses, based on his analysis, which kinds of industries are the best candidates for strong grants of exclusive rights.

An intellectual property regime is most clearly desirable for mature industries, by definition technologically stable, and with low or negative economic growth…. [I]f by definition profit margins are thin in a declining industry, it will be better to have only the very best projects come to market…. By the same logic, the case for strong intellectual property protections may be at its weakest in new industries, which can be described as industries that are expanding rapidly and where technologies are changing quickly…. A [decentralized] decision structure may be necessary to uncover the innovative ideas that are the most valuable, at the costs of multiple failures.

As they say in the blogosphere, read the whole thing.

Recommended Reading

Following the lead of other bloggers, I’ll be writing occasionally to recommend books or articles that I found interesting. Today, I’m recommending two books that could hardly be more different in topic and tone.

The 9/11 Commission Report

This book was a real surprise. I started reading from a sense of obligation, but I was quickly hooked. It isn’t light reading, and parts are simply horrifying; but it explains the events of 9/11, their causes, and the aftermath with admirable depth and clarity. Most surprising of all is the quality of the writing, which rivals the best journalism or historical writing. The tick-tock in Chapter 1 is riveting and will surely be the definitive account of what happened that day.

The Commission had broad access to documents and people, a sizeable staff, and bipartisan national support, all of which allowed them to see clearly the history of the 9/11 plot, the U.S. government’s efforts to deal with al Qaida over the years, and the response to the attacks. Much of this is eye-opening. The sheer chaos and lack of information flow that confronted first responders is sobering. We also see the national security community’s wavering focus on the al Qaida threat and the gathering of significant intelligence about it, coupled with a cultural inability to strike boldly against it before 9/11.

Overall, the report was much better than I expected – much better, really, than a government commission report has any right to be.

Rammer Jammer Yellow Hammer: A Journey into the Heart of Fan Mania, by Warren St. John

Bummed out by the 9/11 report? This book is the antidote. It’s a group portrait of the most rabid University of Alabama football fans, written by a New York journalist who grew up in Alabama and knows firsthand the lure of Bama football. It’s a nicely polished little book packed with laugh-out-loud moments.

A typical vignette introduces a couple who skipped their own daughter’s wedding to go to a Bama football game. (The game got over in time for them to attend the reception.) They seem like fairly normal people, and when asked to explain why they did this thing, they’re at a loss. The author reports asking many Alabamans what they thought of the couple’s story. Three-quarters shook their heads and wondered why in the world loving parents could skip their daughter’s wedding. The other quarter shook their heads and wondered why in the world a loving daughter would schedule her wedding on the day of the Tennessee game.

The beauty of the book is that the author doesn’t caricature the fans. He tells their stories sympathetically, and one comes to see their obsession as not so different from the obsessions or hobbies that many of us have. Indeed, the author himself is gently pulled into their community, buying himself an RV and driving it to the games just like the most devoted fans. He weaves together the stories of the fans, his own story of being drawn into their world, and references to academic studies of fans and their behavior, into a revealing and very entertaining mix. I’m a big fan of this book.