0521877326 cambridge university press future imperfect technology and freedom in an uncertain world jul 2008

My digital signature demonstratesthat I am the same online persona you dealt with yesterday and yourcolleague dealt with last year, with no need for either of you to knowsuch irrelevant

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FUTURE IMPERFECT

Future Imperfect describes and discusses a variety of technological

revo-lutions that might happen over the next few decades, their implications,and how to deal with them Topics range from encryption and surveillancethrough biotechnology and nanotechnology to life extension, mind drugs,virtual reality, and artificial intelligence One theme of the book is that thefuture is radically uncertain Technological changes already begun could lead

to more or less privacy than we have ever known; freedom or slavery; tive immortality or the elimination of our species; radical changes in life,marriage, law, medicine, work, and play We do not know which future willarrive, but it is unlikely to be much like the past It is worth starting to thinkabout it now

effec-David D Friedman is Professor of Law at Santa Clara University, California.After receiving a Ph.D in theoretical physics at the University of Chicago,

he switched fields to economics and taught at Virginia Polytechnic sity, the University of California at Irvine, the University of California atLos Angeles, Tulane University, the University of Chicago, and Santa ClaraUniversity A professional interest in the economic analysis of law led topositions at the law schools of the University of Chicago and Cornell andthereafter to his present position, where he developed the course on legal

Univer-issues of the twenty-first century that led to his writing Future Imperfect Professor Friedman’s first book, The Machinery of Freedom: Guide to a Radical Capitalism, was published in 1973, remains in print, and is considered

a libertarian classic He wrote Price Theory: An Intermediate Text (1986), Hidden Order: The Economics of Everyday Life (1996), and Law’s Order: An Economic Account (2000) His first work of fiction, Harald, was published in

2006

Professor Friedman’s scientific interest in the future is long-standing.The Cypherpunks, an online group responsible for much early thinking

about the implications of encryption, included The Machinery of Freedom

on their list of recommended readings Professor Friedman’s web page,www.davidfriedman.com, averages more than 3,000 visitors a day and his

blog, Ideas, at http://daviddfriedman.blogspot.com receives about 400 daily

visits

Future Imperfect

Technology and Freedom in an Uncertain World

DAVID D FRIEDMAN

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

First published in print format

ISBN-13 978-0-521-87732-9

ISBN-13 978-0-511-42326-0

© David D Friedman 2008

2008

Information on this title: www.cambridge.org/9780521877329

This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Published in the United States of America by Cambridge University Press, New York www.cambridge.org

eBook (EBL) hardback

PART ONE PROLOGUE

PART TWO PRIVACY AND TECHNOLOGY

4 Information Processing: Threat or Menace? Or If Information

5 Surveillance Technology: The Universal Panopticon 66

PART THREE DOING BUSINESS ONLINE

9 Reactionary Progress – Amateur Scholars and Open Source 123

PART FOUR CRIME AND CONTROL

vi Contents

PART SIX THE REAL SCIENCE FICTION

PART ONE

PROLOGUE

Introduction

A few years ago I attended an event where the guest speaker was a Cabinetmember In conversation afterwards, the subject of long-term petroleumsupplies came up He warned that at some point, perhaps a century or

so in the future, someone would put his key in his car’s ignition, turn it,and nothing would happen – because there would be no gasoline.What shocked me was not his ignorance of the economics of depletableresources – if we ever run out of gasoline it will be a long, slow process

of steadily rising prices, not a sudden surprise – but the astonishingconservatism of his view of the future It was as if a similar official,

100 years earlier, had warned that by the year 2000 the streets would be

so clogged with horse manure as to be impassable I do not know whatthe world will be like a century hence But it is not likely to be a placewhere the process of getting from here to there begins by putting a key

in an ignition, turning it, and starting an internal combustion engineburning gasoline

This book grew out of a seminar on future technologies that I taughtfor a number of years at the law school of Santa Clara University EachThursday we discussed a technology that I was willing to argue, at leastfor a week, could revolutionize the world On Sunday, students emailed

me legal issues that that revolution would raise, to be put on the classweb page for other students to read Tuesday, we discussed the issuesand how to deal with them Next Thursday a new technology and a newrevolution

The idea for the course started with two then obscure technologies:public key encryption and nanotechnology As the course developed I

3

4 Prologue

found myself exploring a considerable range of others, with one feature

in common: Each might change the world within my lifetime Whatyou are reading is an exploration of those technologies, the futures eachmight generate, and how we might deal with them This chapter brieflysurveys the technologies; the next discusses the problem of adjusting ourlives and institutions to their consequences

At the moment, the fashionable focus for worries about the future isglobal warming It is probably a real problem and perhaps somethingshould at some point be done about it But, despite all the public furor andimages of flooded cities, on current evidence it is not a very large problem.The latest estimates from the United Nations International Panel onClimate Change (IPCC) predict, if nothing is done, a sea level rise of afoot or two by the end of the century, an increase in average temperature

of a few degrees, and perhaps a small increase in the frequency and force

of hurricanes It is possible that those predictions will turn out to be fartoo modest, but they are what we currently have to work with

At least three of the technologies I discuss in this book – nanotech,biotech, and artificial intelligence (AI) – have the potential to wipe outour species well before the end of the century They also have the potential

to create a future sufficiently rich and technologically advanced to makeglobal warming a problem that can be solved at the cost of the sparecash of a few philanthropists Other technologies might create futuresstrikingly different from the present in a wide variety of ways: a radicallymore, or radically less, free society than we now live in, more privacy thanhumans have ever known or less, humans living like gods or like slaves.Their consequences will affect not only law but marriage, parenting,political institutions, businesses, life, death, and much else

I am not a prophet; any one of the technologies I discuss may turn out

to be a wet firecracker It only takes one that does not to remake the world.Looking at some candidates will make us a little better prepared if one

of those revolutions turns out to be real Perhaps more important, after

we have thought about how to adapt to any of ten possible revolutions,

we will at least have a head start when the eleventh drops on us out ofthe blue The conclusion I want readers to draw from this book is notthat any one of the futures I sketch is going to happen The conclusion Iwant them to draw is that the future is radically uncertain In interestingways

Introduction 5

And that it is worth starting to think about the possibilities, and how

to deal with them, now

POSSIBLE FUTURES

We start with three technologies relevant to privacy – one that radicallyincreases it, two that radically decrease it

Privacy x 3 or

Now You Have It, Now You Don’t

Public key encryption makes possible untraceable communications ligible only to the intended recipient My digital signature demonstratesthat I am the same online persona you dealt with yesterday and yourcolleague dealt with last year, with no need for either of you to knowsuch irrelevant details as age, sex, or what continent I am living on.The combination of computer networking and public key encryptionmakes possible a level of privacy humans have never known, an onlineworld where people have both identity and anonymity – simultaneously.One implication is free speech protected by the laws of mathematics,arguably more reliable and certainly with broader jurisdiction than theSupreme Court Another is the possibility of criminal enterprises withbrand-name reputation – online pirate archives selling other people’sintellectual property for a penny on the dollar, temp agencies renting outthe services of forgers and hit men

intel-On the Other Hand

In the not-too-distant future you may be able to buy an inexpensive videocamera with the size and aerodynamic characteristics of a mosquito Evenearlier, we will see – are already seeing – the proliferation of cameras

on lampposts designed to deter crime Ultimately, this could lead to asociety where nothing is private Science fiction writer David Brin hasargued that the best solution available will be not privacy but universaltransparency – a world where everyone can watch everyone else Thepolice are watching you – but someone is watching them

It used to be that a city was more private than a village, not becausenobody could see what you were doing but because nobody could keeptrack of what everybody was doing That sort of privacy cannot survive

6 Prologue

modern data processing The computer on which I am writing thesewords has sufficient storage capacity to hold at least a modest amount ofinformation about every human being in the United States and enoughprocessing power to quickly locate any one of those by name or char-acteristics From that fact arises the issue of who has what rights withregard to information about me currently in the hands, and minds, ofother people

Put all of these technologies together and we may end up with a worldwhere your realspace identity is entirely public, with everything aboutyou known and readily accessible, while your cyberspace activities, andinformation about them, are entirely private – with you in control of thelink between your cyberspace persona and your realspace identity

A world of strong privacy requires some way of enforcing agreements;how do you sue someone for breach of contract when you have no ideawho, where, or what he, she, or it is? That and related problems lead us to

a legal technology in which legal rules are privately created and enforced

by reputational sanctions It is an ancient technology, going back at least

to the privately enforced Lex Mercatoria from which modern commercial

law evolved.1But for most modern readers, including most lawyers andlaw professors, it will be new

Property online is largely intellectual property, which raises the lem of how to protect it in a world where copyright law is becomingunenforceable One possibility is to substitute technological for legalprotection A program or database comes inside a piece of software –Intertrust called it a digibox – that regulates its use To run the program

prob-or query the database costs ten cents of ecash, instantly transmitted overthe net to the copyright owner

Introduction 7

Finally and perhaps most radically, a world of fast, cheap nication greatly facilitates decentralized approaches to production Onepossible result is to shift substantial amounts of human effort out ofthe context of hierarchically organized corporations into some mix ofmarketplace coordination of individuals or small firms and the sort ofvoluntary cooperation, without explicit markets, of which open sourcesoftware development is a recent and striking example

commu-Crime, Cops, and Computers

Some technologies make the job of law enforcement harder Others make

it easier – even too easy A few years ago, when the digital wiretap bill wasgoing through Congress, critics pointed out that the capacity the FBI wasdemanding the phone companies provide them added up to the ability

to tap more than a million telephones – simultaneously

We still do not know if they intend to do it, but it is becoming ingly clear that if they want to, they can The major cost of a wiretap islabor As software designed to let people dictate to their computers getsbetter, that someone can be a computer converting conversation to text,searching the text for keywords or phrases, and reporting the occasionalhit to a human being Computers work cheap

increas-In addition to providing police new tools for enforcing the law, puters raise numerous problems for both defining and preventing crimes.Consider the question of how the law should classify a “computer break-in” – which consists, not of anyone actually breaking into anything,but of one computer sending messages to another and getting mes-sages in reply Or consider the potential for applying the classical salamitechnique – stealing a very small amount of money from each of a verylarge number of people – in a world where tens of millions of peoplelinked to the Internet have software on their computers designed to paybills online

com-Designer Kids, Long Life, and Corpsicles

The technologies in our next cluster are biological Two – paternity testingand in vitro fertilization – have already abolished several of the facts onwhich the past 1,000 years of family law are based It is no longer only awise child who knows his own father – any child can, given access to tissue

8 Prologue

samples and a decent lab And it is no longer the case that the womanfrom whose body an infant is born is necessarily its mother The law hasbegun to adjust One interesting question that remains is to what degree

we will restructure our mating patterns to take advantage of changes inthe technology of producing babies

A little further into the future are technologies to give us control overour children’s genetic heritage My favorite is the libertarian eugenicssketched decades ago by science fiction author Robert Heinlein – tech-nologies that permit each couple to choose, from among the childrenthey might have, which ones they do have, selecting the egg that doesnot carry the mother’s tendency to nearsightedness to combine withthe sperm that does not carry the father’s heritage of a bad heart Runthat process through five or ten generations with a fair fraction of thepopulation participating and you get a substantial change in the humangene pool Alternatively, if we learn enough to do cut-and-paste geneticengineering, parents can forget about the wait and do the whole job inone generation

Skip next from the beginning of life to the end Given the rate ofprogress in biological knowledge over the past century, there is no reason

to assume that the problem of aging will remain insoluble Because thepayoff not only is enormously large but goes most immediately to thecurrently old, some of whom are also rich and powerful, if it can besolved it is likely that it will be

In one sense it already has been There are currently more than 100people whose bodies are not growing older because they are frozen, held

at the temperature of liquid nitrogen All are legally dead But their hope

in arranging their current status was that it would not be permanent,that with sufficient medical progress it will someday be possible to revivethem If it begins to look as though they are going to win their bet we willhave to think seriously about adapting laws and institutions to a worldwhere there is an intermediate state between alive and dead and quite alot of people are in it

The Real Science Fiction

Finally, we come to three technologies whose effects, if they occur, aresufficiently extreme that all bets are off, with both the extinction and the

is wrong to microscopic self-replicating creatures dedicated to turningthe entire world into copies of themselves – known in nanocircles as the

“gray goo” scenario

Artificial intelligence might beat nanotech in the annihilation stakes –

or in making heaven on earth Raymond Kurzweil, a well-informedcomputer insider, estimates that in about thirty years there will be pro-grammed computers with human-level intelligence At first glance thissuggests a world of science fiction robots – if we are lucky, obeying usand doing the dirty work But if in thirty years computers are as smart as

we are and if current rates of improvement – for computers but not forhumans – continue, that means that in forty years we will be sharing theplanet with beings at least as much smarter than we are as we are smarterthan chimpanzees Kurzweil’s solution is for us to get smarter too – tolearn to do part of our thinking in silicon That could give us a verystrange world – populated by humans, human/machine combinations,machines programmed with the contents of a human mind that thinkthey are that human, machines that have evolved their own intelligence,and much else

The final technology is virtual reality (VR) Present versions use thebrute-force approach: feed images through goggles and headphones toeyes and ears But if we can crack the dreaming problem, figure out howour nervous system encodes the data that reach our minds as sensoryperceptions, goggles and headphones will no longer be necessary Plug

a cable into a socket at the back of your neck for full sense perception

of a reality observed by mechanical sensors, generated by a computer, orrecorded from another brain

The immediate payoff is that the blind will see – through video eras – and the deaf hear The longer run consequence may be a worldwhere most of the important stuff consists of signals moving from one

cam-10 Prologue

brain to another over a network, with physical acts by physical ies playing only a minor role To visit a friend in England there is noneed to move either his body or mine – being there is as easy as dialingthe phone That is one of many reasons why I do not expect gasoline-powered automobiles to play a major role in transportation a centuryfrom now

bod-A few pages back we were considering a world where realspace wasentirely public, cyberspace entirely private As things currently are, thatwould be a very public world, since most of us live most of our lives inrealspace But if deep VR gives us a world where all the interesting stuffhappens in cyberspace and realspace activity consists of little more thankeeping our bodies alive, it could be a very private world

Having labeled the section science fiction, I could not resist adding

a chapter on ways in which current and near future technologies maymake possible the old science fiction dream: space travel, space habitats,and perhaps, in time, the stars

Alternatives

Any of the futures I have just sketched might happen, but not all Ifnanotech turns the world into gray goo in 2030, it will also turn intogray goo the computers on which artificial super intelligences wouldhave been developed in 2040 If nanotech bogs down and AI does not,the programmed computers that rule the world of 2040 may be moreinterested in their own views of how the human species should evolvethan in our view of what sort of children we want to have And, closer

to home, if strong private encryption is built into our communicationsystems, with the encryption and decryption under the control not ofthe network but of the individuals communicating with each other – theNational Security Agency’s nightmare for the past twenty years or so – itwon’t matter how many telephone lines the FBI can tap

That is one reason this book is not prophecy I expect parts of what Idescribe to happen but I do not know which parts My purpose is not

to predict which future we will get but to use possible futures to thinkabout how technological change will affect us and how we can and shouldchange our lives and institutions to adapt to it

Introduction 11

That is also one reason that, with a few exceptions, I have limited mydiscussion of the future to the next thirty years or so That is roughlythe point at which both AI and nanotech begin to matter It is also longenough to permit technologies that have not yet attracted my attention

to start to play an important role Beyond that my crystal ball, badlyblurred at best, becomes useless; the further future dissolves into mist

Living with Change

New technologies change what we can do Sometimes they make what

we want to do easier After writing a book with a word processor, onewonders how it was ever done without one Sometimes they make whatsomeone else is doing easier – and make it harder for us to preventhim from doing it Enforcing copyright law became more difficult whenphoto typesetting made the cost of producing a pirated edition lower thanthe cost of the authorized edition it competed with, and more difficultagain when inexpensive copying put the tools of piracy in the hands ofany college professor in search of reading material for his students Asmicrophones and video cameras become smaller and cheaper, preventingother people from spying on me becomes harder

The obvious response is to try to keep doing what we have been doing

If that is easier, good If it is harder, too bad The world must go on, thelaw must be enforced Let justice be done, though the sky fall

Obvious – and wrong The laws we have, the ways we do things, arenot handed down from heaven on tablets of stone They are humancontrivances, solutions to particular problems, ways of accomplishingparticular ends If technological change makes a law hard to enforce, thebest solution is sometimes to stop enforcing it There may be other ways

of accomplishing the same end – including some enabled by the sametechnological change The question is not how to continue to do what

we have been doing but how best to achieve our objectives under newcircumstances

Insofar as this book has a theme, that is it

12

Living with Change 13

A SIMPLE EXAMPLE: THE DEATH OF COPYRIGHT

Copyright law gives the author of a copyrightable work the right tocontrol who copies it If copying a book requires an expensive printingplant operating on a large scale, that right is reasonably easy to enforce

If every reader owns equipment that can make a perfect copy of a book

at negligible cost, enforcing the law becomes very nearly impossible

So far as printed material is concerned, copyright law has become lessenforceable over the past century but not yet unenforceable The copyingmachines most of us have access to can reproduce a book, but the cost

is comparable to the cost of buying the book and the quality worse.Copyright law in printed works can still be enforced, even if less easilythan in the past

The same is not true for intellectual property in digital form Anyonewith a CD-R drive can copy a $400 program onto a one-dollar CD.Anyone with a reasonably fast Internet connection can copy anythingavailable online, anywhere in the world, to his hard drive

Under those circumstances enforcing copyright law against individualusers is very nearly impossible If my university decides to save on itssoftware budget by buying one copy of Microsoft Office and making lots

of copies, a discontented employee with Bill Gates’ email address couldget us in a lot of trouble But if I choose to provide copies to my wife andchildren – which under Microsoft’s license I am not permitted to do –

or even to a dozen of my friends, there is in practice little that Microsoftcan do about it

That could be changed If we wanted to enforce present law badlyenough, we could do it Every computer in the country would be subject

to random search Anyone found with an unlicensed copy of softwarewould go straight to jail Silicon Valley would empty and the prisonswould fill with geeks, teenagers, and children

Nobody regards that as a tolerable solution to the problem Althoughthere has been some shift recently in the direction of expanded criminalliability for copyright infringement, software companies for the mostpart take it for granted that they cannot use the law to prevent individualcopying of their programs and so have fallen back on other ways ofgetting rewarded for their efforts

14 Prologue

Holders of music copyrights face similar problems As ownership oftape recorders became common, piracy became easier Shifting to CDstemporarily restored the balance, since they provided higher quality thantape and were expensive to copy – but then cheap CD recorders and digitalaudio tape came along Most recently, as computer networks have gottenfaster, storage cheaper, and digital compression more efficient, the threathas been from online distribution of MP3 files encoding copyrightedsongs

Faced with the inability to enforce copyright law against individuals,what are copyright holders to do? There are at least three answers

1 Substitute technological protection for legal protection

In the early days of home computers, some companies sold their grams on disks designed to be uncopyable Consumers found this incon-venient, either because they wanted to make copies for their friends orbecause they wanted to make backup copies for themselves So othersoftware companies sold programs designed to copy the copy-protecteddisks One company produced a program (SuperUtility Plus) designed

to do a variety of useful things, including copying other companies’ tected disks It was itself copy-protected So another company produced

pro-a progrpro-am (SuperDuper) whose sole function in life wpro-as to mpro-ake copies

of SuperUtility Plus

Technological protection continues in a variety of forms All face acommon problem It is fairly easy to provide protection sufficient tokeep the average user from using software in ways that the producer doesnot want him to use it It is very hard to provide protection adequateagainst an expert And one of the things experts can do is to make theirexpertise available to the average user in the form of software designed

to defeat protection schemes

This suggests a possible solution: technological protection backed up

by legal protection against software designed to defeat it In the earlyyears, providers of copy protection tried that approach They sued themakers of software designed to break the protection, arguing that theywere guilty of contributory infringement (helping other people copycopyrighted material), direct infringement (copying and modifying theprotection software in the process of learning how to defeat it), and

Living with Change 15

violation of the licensing terms under which the protection software wassold They lost.1

More recently, owners of intellectual property successfully supportednew legislation – Section 1201 of the Digital Millennium CopyrightAct – which reverses that result, making it illegal to produce or distributesoftware whose primary purpose is defeating technological protection

It remains to be seen whether or not that restriction will itself proveenforceable

2 Control only large-scale copying

Anyone with a video recorder, some additional hardware, and a littleexpertise can copy videos for his friends Nonetheless, video rental storesremain in business They inexpensively provide their customers with amuch larger selection than they could get by copying their friends’ cas-settes The stores themselves cannot safely violate copyright law, buyingone cassette for 100 outlets, because they are large, visible organizations

So producers of movies continue to get revenue from videocassettesdespite the ability of customers to copy them

There is no practical way for music companies to prevent one teenagerfrom making copies of a CD or a collection of MP3s for his friends, butconsumers of music are willing to pay for the much wider range of choiceavailable from a store The reason Napster threatened the music industrywas that it provided a similar range of choice at a much lower cost Thesituation is similar for computer programs As long as copyright law can

be used to prevent large-scale piracy, customers are willing to pay for theconvenience provided by a legal (hence large-scale and public) source fortheir software In both cases, the ability of owners of intellectual property

to make piracy inconvenient enough to keep themselves in business isthreatened by the Internet, which offers the possibility of large-scalepublic distribution of pirated music and software

3 Permit copying; get revenues in other ways

Most successful lecturers will in whispered tones confide to you that there is noother journalistic or pedagogical activity more remunerative – a point made byMark Twain and Winston Churchill

William F Buckley, Jr.2

16 Prologue

A century ago, prominent authors got a good deal of their incomefrom public lectures Judging by the quotation from Buckley – and myown experience – some still do This suggests that in a world withoutenforceable copyright, some authors could write books, provide themonline to anyone who wanted them, and make their living selling services

to their readers – public lectures, consulting services, or the like This isnot a purely conjectural possibility Currently I provide the full text offour books and numerous articles on my web page, for free – and receive

a wide range of benefits, monetary and nonmonetary, by doing so.This is one example of a more general strategy: Give away the intellec-tual property and get your income from it indirectly That is how both

of the leading web browsers were at one time provided Netscape gaveaway Navigator and sold the server software that Navigator interactedwith; Microsoft followed a similar strategy Apple provided a competingbrowser – which was (and is) available for free, but only ran on Applecomputers Currently a variety of other browsers are open source, anapproach to creating software discussed in a later chapter It is also howradio and television programs pay their bills; give away the program andget revenue from the ads

As these examples show, the death of copyright does not mean thedeath of intellectual property It does mean that producers of intellectualproperty must find other ways of getting paid for their work The firststep is recognizing that, in the long run, simply enforcing existing law isnot going to be an option

DEFAMATION ONLINE: A LESS SIMPLE EXAMPLE

A newspaper publishes an article asserting that I am a wanted criminal,having masterminded several notorious terrorist attacks Colleagues findthemselves otherwise engaged when I propose going out to dinner Mydepartment chair assigns me to teach a course on Sunday mornings with

an enrollment of one I start getting anonymous phone calls My recourseunder current law is to sue the paper for libel, forcing them to retracttheir false claims and compensate me for damage done

Implicit in the legal solution to defamation are two assumptions One

is that when someone makes a false statement to enough people to do

Living with Change 17

serious damage, the victim can identify either the person who made thestatement or someone else responsible for his making it – the newspaper

if not the author The other is that at least one of the people identified asresponsible will have enough assets to be worth suing

Twenty years ago, both assumptions were usually true The reporterwho wrote a defamatory article might be too poor to be worth suing,but the newspaper that published it was not – and could reasonably beheld responsible for what it printed It was possible to libel someone by

a mass mailing of anonymous letters, but a lot of trouble to do it on alarge enough scale to matter to most victims

Neither is true any longer It is possible, with minimal ingenuity, toget access to the Internet without identifying yourself With a little moretechnical expertise, it is possible to communicate online through inter-mediaries – anonymous remailers – in such a way that the message cannot

be linked to the sender Once online, there are ways to communicate withlarge numbers of people at near zero cost: mass email, posts on Usenetnews, a page on the World Wide Web And if you choose to abandonanonymity and spread lies under your own name, access to the Internet

is so inexpensive that it is readily available to people without enoughassets to be worth suing

One possible response is that we must enforce the law whatever ittakes If the originator of the defamation is anonymous or poor, findsomeone else, somewhere in the chain of causation, who is neither Inpractice, that probably means identifying the Internet service provider(ISP) through whom the message passed and holding him liable A webpage is hosted on some machine somewhere; someone owns it An emailcame at some point from a mail server; someone owns that

That solution makes no more sense than holding the U.S Post Officeliable for anonymous letters The publisher of a newspaper can reasonably

be expected to know what is appearing in his pages But an ISP has nopractical way to monitor the enormous flow of information that passesthrough its servers – and if it could, we wouldn’t want it to We can – inthe context of copyright infringement we do – set up procedures underwhich an ISP can be required to take down webbed material But thatdoes no good against a Usenet post, mass email, webbed defamationhosted in places reluctant to enforce U.S law, or defamers willing to go

18 Prologue

to the trouble of hosting their web pages on multiple servers, shiftingfrom one to another as necessary Defamation law is of very limited usefor preventing online defamation

There is – has always been – another solution to the problem Whenpeople tell lies about me, I answer them The technological develop-ments that make defamation law unenforceable online also make possi-ble superb tools for answering lies and thus provide a substitute, arguably

a superior substitute, for legal protection

My favorite example is Usenet News, a part of the Internet older and lesswell known than the Web To the user it looks like a collection of onlinebulletin boards, each on a different topic: anarchy, short-wave radios,architecture, cooking history When I post a message to a newsgroup, themessage goes to a computer (a news server) provided by my ISP The nexttime that news server talks to another they exchange messages – and minespreads gradually across the world In an hour, it may be answered bysomeone in Finland or Japan The server I use hosts more than 100,000groups Each is a collection of conversations spread around the world – atiny nongeographical community united, and often divided, by commoninterests

Google, which hosts a popular web search engine, also provides asearch engine for Usenet Using it I can discover in less than a minutewhether anyone has mentioned my name anywhere in the world anytime in the last three days – or weeks, or years – in any of more than100,000 newsgroups If I get a hit, one click brings up the message If I amthe David Friedman mentioned (the process would be easier if my namewere Myron Whirtzlburg), and if the message requires an answer, a fewmore clicks put my response in the same thread of the same newsgroup,where almost everyone who read the original post will see it It is as if,when anyone slandered me anywhere in the world, the wind blew hiswords to me and my answer back to the ears of everyone who had heardthem

The protection Usenet offers against defamation is not perfect; afew people who read the original post may miss my reply and moremay choose not to believe it But the protection offered by the courts

is imperfect too Most damaging false statements are not importantenough to justify the cost and trouble of a lawsuit Many that are do

Living with Change 19

not meet the legal requirements for liability Given the choice, I preferUsenet

Suppose that instead of defaming me on a newsgroup you do it on aweb page Finding it is easy – Google provides a search engine for theWeb too The problem is how to answer it I can put up a web page with

my answer and hope that sufficiently interested readers will come across

it, but that is all I can do The links on your web page are put there byyou, not by me – and you may be reluctant to add one to the page thatproves you are lying

There is a solution to this problem, a technological solution Currentweb browsers show only forward links – links from the page being read

to other pages It would be possible to build a web browser, say NetscapeNavigator 12.0, that automatically showed backlinks, letting the user seenot only what pages the author of this page chose to link to but also whatpages chose to link to it.3Once such browsers are in common use, I needonly put up a page with a link to yours Anyone browsing your page withthe backlink option turned on will be led to my rebuttal.4

There is a problem with this solution – a legal problem Your webpage is covered by copyright, which gives you the right to forbid otherpeople from making either copies or derivative works A browser thatdisplays your page as you intended is making a copy, but one to whichyou have given implicit authorization by putting your page on the Web

A browser that displays your page with backlinks added is creating aderivative work – one that you may not have intended and, arguably,did not authorize To make sure your lies cannot be answered, you notifyNetscape that they are not authorized to display your page with backlinksadded

The issue of when one web page is an unauthorized derivative work ofanother is currently being fought out in the context of “framing” –one web site presenting material from another along with its ownadvertising.5 If my view of online defamation is correct, the outcome

of that litigation may be important to an entirely different set of issues.The same legal rule (a strong reading of the right to prevent derivativeworks online) that would protect a site from other people free riding

on its content would also provide protection to someone who wants tospread lies online

20 Prologue

UNSTEADY GROUND

My mother was a test tube, my father was a knife

Friday, Robert A Heinlein

Technological changes alter the cost of doing things But they may alsoaffect us in a more subtle way by making obsolete the categories we use

to talk and think about the world around us

Consider the category of “parent.” It used to be that, although theremight be some uncertainty about the identity of a child’s father, therewas no question what “father” and “mother” meant Laws and socialnorms specifying the rights and obligations of fathers and mothers wereunambiguous in meaning, if not always in application

That is no longer the case With current reproductive technology thereare at least two biological meanings of “mother” and will soon be athird A gestational mother is the woman in whose womb a fetus wasincubated An egg mother is the woman whose fertilized egg became thefetus Once human cloning becomes an established technology, a mito-chondrial mother will be the woman whose egg, with its nucleus replaced

by the nucleus of the clone donor but with its own extranuclear chondrial DNA, developed into the fetus And once genetic engineeringbecomes a mature technology, permitting us to produce offspring whoseDNA is a patchwork from multiple donors, the concept of “a” biologicalmother (or father) will be very nearly meaningless

mito-The Child with Five Parents

A California couple wanted a child The husband was sterile His wifewas doubly sterile – she could neither produce a fertile egg nor bring afetus to term They contracted with a sperm donor, an egg donor, and agestational mother The donated egg was impregnated with the donatedsperm and implanted in the rented womb Then, before the baby wasborn, their marriage broke up, leaving the courts with a puzzle: Whatperson or persons had the legal rights and obligations of parenthood?Under California law read literally, the answer was clear The motherwas the woman from whose body the child was born The father washer husband That was a sensible enough legal rule when the laws werewritten But it made no sense at all in a world where neither that woman

Living with Change 21

nor her husband either was related to the child or had intended toparent it

The court that finally decided the issue held that the parents werethe couple who had set the train of events in motion, intending at thattime to rear the child as their own They thus substituted for a biologicaldefinition that had become technologically obsolete a social definition –motherhood by neither egg nor womb but by intention

This is a true story If you don’t believe me, go to a law library and

look up John A B v Luanne H B (72 Cal Rptr 2d 280 (Ct App.

1998))

The Living Dead

Consider someone whose body is preserved at the temperature of liquidnitrogen while awaiting the medical progress needed to revive and curehim Legally he is dead; his wife is a widow, his heirs have his estate But if

he is in fact going to be revived, then in a very real sense he is not dead –merely sleeping very soundly Our legal system, more generally our way

of thinking about people, takes no account of the special status of such aperson There is a category of alive, a category of dead, and – outside ofhorror movies and computer games – nothing between them

The absence of such a category matters It may, quite literally, be amatter of life and death

You are dying of a degenerative disease that will gradually destroy yourbrain If you are cured today, you will be fine If you are cured a yearlater, your body may survive but your mind will not After consideringthe situation, you decide that you are more than willing to trade a year

of dying for a chance of getting back your life You call up the AlcorLife Extension Foundation and ask them to arrange to have your bodyfrozen – tomorrow if possible

They reply that while they agree with your decision they cannot helpyou As long as you are legally alive, freezing you is legally murder Youwill simply have to wait another year until you are declared legally deadand hope that somehow, some day, medical science will become capable

of reconstructing you from what by that time is left

This too is, allowing for a little poetic license, a true story In Donaldson

v Van de Kamp, Thomas Donaldson went to court in an unsuccessful

22 Prologue

attempt to get permission to be frozen before, rather than after, his brainwas destroyed by a cancerous tumor

The issues raised by these cases – the meaning of parenthood and

of death – will be discussed at greater length in later chapters Theirfunction here is to illustrate the way in which technological change altersthe conceptual ground under our feet

All of us deal with the world in terms of approximations We describesomeone as tall or short, kind or cruel, knowing that the former is a matter

of degree and the latter both of degree and of multiple dimensions Wethink of the weather report as true, although it is quite unlikely that itprovides a perfectly accurate description of the weather, or even that such

a description is possible When the weatherman says the temperature

is seventy degrees in the shade, just which square inch of shade is hereferring to? We classify a novel as fiction and this book as nonfiction,although quite a lot of the statements in the former are true and some inthe latter are false

Dealing with the world in this way works because the world is not arandom assemblage of objects; there is pattern to it Temperature variesfrom one patch of shade to another, but not by very much Although

a statement about “the” temperature in the shade may not be preciselytrue, we rarely lose much by treating it as if it were Similarly for theother useful simplifications of reality that make possible both thoughtand communication

When the world changes enough, some simplifications cease to be ful It was always true that there was a continuum between life and death;the exact point at which someone is declared legally dead is arbitrary.But, with rare exceptions, it was arbitrary to within seconds, perhapsminutes – which almost never mattered When it is known that, for alarge number of people, the ambiguity not only exists but will exist fordecades, the simplification is no longer useful It may, as could havehappened in the case of Thomas Donaldson, become lethal

use-IT’S NOT JUST LAW, use-IT’S LIFE

So far my examples have focused on how legal rules should respond totechnological change But similar issues arise for each of us in living his

Living with Change 23

or her own life in a changing world Consider, for a story now in partplayed out, the relations between men and women

The Decline of Marriage

For a very long time, human societies have been based on variants of thesexual division of labor All started with a common constraint: womenbear and suckle children, men do not For hunter-gatherers, that meantthat the men were the hunters and the women, kept relatively close

to camp by the need to care for their children, the gatherers In moreadvanced societies that became, with many variations, a pattern wherewomen specialized in household production and men in productionoutside the household

A second constraint was the desire of men to spend their resources ontheir own children rather than on the children of other men – a desirerooted in the fact that Darwinian selection has designed organisms,including human males, to be good at passing down their own genes

to future generations Since the only way a man could be reasonablyconfident that he was the father of a particular child was for the child’smother not to have had sex with other men during the period when itwas conceived, the usual arrangement of human societies, with a fewexceptions, gave men sexual exclusivity One man might under somecircumstances sleep with more than one woman but one woman wassupposed to, and most of the time did, sleep with only one man.Over the past few centuries two things have sharply altered the factsthat led to those institutions One was the decline in infant mortality In aworld where producing two or three adult children required a woman tospend most of her fertile years bearing and nursing, the sexual division

of labor was sharp – one profession, “mother,” absorbed close to halfthe labor force In today’s world, a woman need bear only two babies inorder to end up with two adult children

A second change, the increased division of labor, has drasticallyreduced the importance of household production You may still washyour own clothes, but most of the work was done by the people whobuilt the washing machine You may still cook your own dinner, but youare unlikely to cure your own ham or make your own soap That change

The Future of Marriage

One consequence of married women working largely outside of the home

is to make the enforcement of sexual exclusivity, never easy,7very nearlyimpossible Modern societies developed a social alternative: companion-ate marriage A wife who is your best friend instead of your subordinate

or slave is less likely to want to cheat on you, a good thing if you have nopractical way of stopping her Modern society also produced, somewhatlater, a technological alternative: paternity testing It is now possible for

a husband to know whether his wife’s children are his even if he is notconfident that he is her only sexual partner

This raises some interesting possibilities We could have – are perhapsmoving toward – a variant of conventional marriage institutions in whichpaternal obligations are determined by biology, not marital status Wecould have a society with group marriages but individual parental respon-sibilities, since a woman would know which of her multiple husbandshad fathered any particular child We could have a society with casualsex but well-defined parental obligations – although that raises somepractical problems It is much easier for a couple to share parental duties

if they are also living together, and the fact that two people enjoy sleepingtogether is inadequate evidence that they will enjoy living together.All of these mating patterns exist already (for a partial sample, see theUsenet newsgroup alt.polyamory) Whether any become common willdepend in large part on the nature of male sexual jealousy Is it primarily

a learned pattern, designed to satisfy an instinctual preference for one’sown children? Or is it itself instinctual, hardwired by evolution as a way

Living with Change 25

of improving the odds that the children a male supports carry his genes?8

If the former, then once the existence of paternity testing makes jealousyobsolete we can expect its manifestations to vanish, permitting a variety

of new mating patterns If the latter, jealousy is still obsolete but, given theslow pace of evolutionary change, that fact will be irrelevant to behaviorfor a very long time, hence we can expect to continue with some variant

of monogamy, or at least serial polygamy, as the norm

The basic principle here is the same as in earlier examples of adjustment

to technological change Our objective is not to save marriage It is toaccomplish the purposes that marriage evolved to serve One way is tocontinue the old pattern even though it has become more difficult – asexemplified by the movement for giving couples the option of covenantmarriage, marriage on something more like the old terms of “till death

do us part.” Another is to take advantage of technological change toaccomplish the old objective – producing and bringing up children – innew ways

Doing Business Online

Technology affects law and love Also business Consider the problem ofcontract enforcement

Litigation has always been a clumsy and costly way of enforcing tractual obligations It is possible to sue someone in another state, evenanother country – but the more distant the jurisdiction, the harder it is

con-If online commerce eventually dispenses with not only geography butreal-world identity, so that much of it occurs between parties linked only

to an identity defined by a digital signature, enforcing contracts in thecourts becomes harder still It is difficult to sue someone if you do notknow who he is

There is an old solution – reputation Just as in the case of defamation,the same technology that makes litigation less practical makes the privatesubstitute more practical

eBay provides a low-tech example When you win an auction and takedelivery of the goods, you are given an opportunity to report on theresult – did the seller deliver when and as scheduled, were the goods as

BRAKES? WHAT BRAKES?

When considering the downside of technologies – Murder Incorporated

in a world of strong privacy or some future James Bond villain usingnanotechnology to convert the entire world to gray goo – your reactionmay be “Stop the train, I want to get off!” In most cases, that is not anoption This particular train is not equipped with brakes

Most of the technologies we are discussing can be developed locallyand used globally Once one country has a functional nanotechnology,permitting it to build products vastly superior to those made with oldtechnologies, there will be enormous pressure on other countries tofollow suit It is hard to sell glass windshields when the competition isusing structural diamond It is even harder to persuade cancer patients

to be satisfied with radiation therapy when they know that, elsewhere inthe world, microscopic cell repair machines are available that simply gothrough your body and fix whatever is wrong

For an example already played out, consider surrogacy contracts –agreements by which a woman bears a child, either from her own oranother woman’s egg, for another couple to rear as their own The Baby

M case established that such contracts are not enforceable, at least inNew Jersey State legislation followed, with the result that in four statesmerely signing such a contract is a criminal act and in one, Michigan,arranging a surrogacy contract is a felony punishable by up to five yearsand $50,000

None of this mattered very much Someone who could afford the costs

of hiring a surrogate mother, still more someone who could afford thecost necessary to arrange for one mother to incubate another’s egg, couldalmost certainly afford the additional cost of doing it in a friendly state

As long as there was one state that approved of such arrangements, the

Living with Change 27

disapproval of others had little effect And even if the contracts werelegally unenforceable, it was only a matter of time before people inthe business of arranging them learned to identify and avoid potentialsurrogate mothers likely to change their mind after the child was born.9

Or consider research into the causes of aging Many people believe(I think mistakenly) that the world suffers from serious problems ofoverpopulation Others argue (somewhat more plausibly) that a worldwithout aging would risk political gerontocracy and cultural stasis.10

Many would – some do – argue that even if the problem of aging can besolved, it ought not to be

That argument becomes less convincing the older you get Old peoplecontrol large resources, both economic and political Although argu-ments against aging research may win out somewhere, they are unlikely

to win out everywhere – and the cure only has to be found once.For a more disturbing example, consider artificial intelligence – atechnology that might well make human beings obsolete At each stage,doing it a little better means being better able to design products, predictstock movements, win wars That almost guarantees that at each stage,someone will take the next step

Even if it is possible to block or restrict a potentially dangerous nology, as in a few cases it may be, it is not clear that we should

tech-do it We might discover that we had missed the disease and bannedthe cure If an international covenant backed by overwhelming mili-tary power succeeds in restricting nanotechnological development togovernment-approved labs, that might save us from catastrophe Butsince government-approved labs are the ones most likely to be working

on military applications of new technology, while private labs mostly try

to produce what individual customers want, the effect might also be toprevent the private development of nanotechnological countermeasures

to government-developed mass destruction Or it might turn out that ourrestrictions had slowed the development of nanotechnology by enough

to leave us unable to defend against the result of a different technology –

a genetically engineered plague, for example

There are legitimate arguments for trying to slow or prevent some ofthese technological developments Those arguments will be made,11butnot here For my purposes, it is more interesting to assume that such

28 Prologue

attempts, if made, will fail, and try to think through the consequences –how new technologies will change things, how human beings will andshould adapt to those changes

Technological progress means learning more about how to do things;

on the face of it, one would expect that to result in an improvement inhuman life So far, with few or no exceptions, it has Despite a multitude ofdire prophecies over the past two centuries, human life almost everywhere

is better today than it was 50 years ago, better 50 years ago than 100 yearsago, and better 100 years ago than 200 years ago.12

Past experience is not always a reliable guide to the future Despitethe progress of the past 200 years, quite a number of people continue

to predict future catastrophe from present progress – including a fewsufficiently well informed and competent to be worth taking seriously

In my final chapter, I will return to the question of whether, how, andunder what circumstances they might be right

PART TWO

PRIVACY AND TECHNOLOGY

A World of Strong Privacy

There has been a lot of concern in recent years about the end of privacy

As we will see in the next two chapters, there is reason for such fears;the development of improved technologies for surveillance and dataprocessing does indeed threaten our ability to restrict other people’saccess to information about us But a third and less familiar technology

is working in precisely the opposite direction If the arguments of thischapter are correct we will soon be experiencing in part of our lives –

an increasingly important part – a level of privacy that human beingshave never known before It is a level of privacy that not only scares theFBI and the National Security Agency, two organizations whose routinebusiness involves prying into other people’s secrets; it sometimes evenscares me

We start with an old problem: how to communicate with someonewithout letting other people know what you are saying There are anumber of familiar solutions If you are worried about eavesdroppers,check under the eaves before saying things you do not want the neighbors

to hear To be safer still, hold your private conversation in the middle

of a large, open field or a boat in the middle of a lake The fish are notinterested and nobody else can hear

That approach no longer works Even the middle of a lake is withinrange of a shotgun mike The eaves do not have to contain eavesdroppers –just a microphone and a transmitter If you check for bugs, someone canstill bounce a laser beam off your windowpane and use it to pick upthe vibration from your voice I am not sure that satellite observation

is good enough yet to read lips from orbit – but if not, it soon will be

31

32 Privacy and Technology

Much of our communication is now indirect, over phone wires, airwaves,the Internet Phone lines can be tapped; cordless or cell phone messagesintercepted An email bounces through multiple computers on its way

to its destination – anyone controlling one of those computers can, inprinciple, save a copy

A different set of old technologies was used for written messages Aletter sealed with the sender’s signet ring could not protect the messagebut at least it let the recipient know if it had been opened – unless thespy was very good with a hot knife A letter sent via a trusted messengerwas safer still, provided he deserved the trust

A more ingenious approach was to protect not the physical message butthe information it contained, by scrambling the message and providingthe intended recipient with the formula for unscrambling it A simpleversion was a substitution cipher, in which each letter in the originalmessage was replaced by a different letter If we replace each letter withthe next one in the alphabet, we get “mjlf uijt” from the words “like this.”

“Mjlf uijt” does not look much like “like this,” but it is not very hard,

if you have a long message and patience, to deduce the substitution anddecode the message More sophisticated scrambling schemes rearrangethe letters according to an elaborate formula, or convert letters into num-bers and do complicated arithmetic with them to convert the message(plaintext) into its coded version (ciphertext) Such methods were used,with varying degrees of success, by both sides in World War II

There were two problems with this way of keeping secrets The firstwas that it was slow and difficult – it took a good deal of work to convert

a message into its coded form or to reverse the process It was worthdoing if the message was the order telling your fleet when and where toattack, but not for casual conversations among ordinary people.That problem has been solved The computers most of us have onour desktops can scramble messages, using methods that are probablyunbreakable even by the NSA, faster than we can type them They caneven scramble – and unscramble – the human voice as fast as we canspeak Encryption is now available not merely to the Joint Chiefs of Staffbut to you and me for our ordinary conversation

The other problem is that in order to read my scrambled message youneed the key – the formula describing how to unscramble it If I do not