Update: The complete Libertarian Forum (1969-85) is now available in epub format here.
A great piece by Rothbard: “High Tech ‘Crime’: A Call for Papers,” from the July–August, 1983 issue (except for the confused comments on copyright-by-contract). My previous version has typos; I have replaced it with the superior epub/html version here.
THE LIBERTARIAN FORUM
Murray N. Rothbard, Editor
A MONTHLY NEWSLETTER Vol. XVII, No. 7-8
High Tech ‘Crime’: A Call for Papers
The other day an old friend of mine, a libertarian and a veteran New Yorker who like myself is determinedly low-tech, was lamenting the crime problem. “Somehow,” he grinned, “the one thing I can’t work up any worry about is ‘computer crime.'” We laughed heartily. But later I began to ruminate on the new areas of alleged crime opened by our new “high tech” technologies. The press is full of mounting hysteria about the alleged need for new laws to cope with new high-tech crimes. Young lads in Milwaukee, inspired by the marvelous and exciting film War Games, use their home computers and modems to enter secret computer information networks. The New York Times headline (Sept. 18) proclaims: “Prosecutors Find Laws Inadequate to Fight New Computer Crimes”. Meanwhile, senders of cable-TV programs fight to prosecute enterprising folk who build antennae on their roofs to catch signals without paying, or others who purchase satellite dishes to trap every possible TV frequency. And the Supreme Court is gravely hearing a case that might allow producers of video films to prohibit (or at best tax) people from using their own VCRs to tape TV programs or movie cassettes which they rent from entrepreneurs.
But wait a minute! Before we rush to pass new laws making criminals out of large groups of people, surely we should pause and think—and surely, too, our a priori presumption must be that whatever anyone is doing is legitimate, unless someone can prove otherwise. The burden of proof is on those who would make criminals out of previously peaceful and productive citizens. At first blush, it seems that, yes, we must pass new laws adapting the concept of crime to new technological realms. But then we must stop and consider: Why can’t the common law, which has always applied principles to new technological situations, be applied without creating new statute law—always a dubious instrument at best?
Take, for example, alleged “computer crimes.” We learn that, for what all of us would recognize as theft, such as the computer bank theft committed years ago in a lovely British film by Peter Ustinov, there is really no need for new laws. Thus, the New York Times (Sept. 18): “Prosecutors distinguish between two types of computer criminals. On the one hand, they said, are those who use computers as a tool to defraud banks or other businesses, often using modern technology to cover their tracks. Prosecutors and private computer security consultants said such cases were still the most commonand the laws dealing with them were adequate.” (Italics mine.) In short, the regular laws against fraud and theft are sufficient; for such deeds which everyone would recognize as criminal there is no need for new laws.
What worries prosecutors, then, where their hands are now tied, are situations where young computer mavens or “hackers”, using their own computer, their own modem hooking them up legitimately to a telephone line, can extract information from other computers also hooked up to the same line. When, typically, a password is needed to hook into the other computer, the hacker can often discover the passwork by guesswork or by randomizing sequences of numbers.
Well, before we rush to laws, let us ponder the problem. Why should it be illegal for a young hacker, using his own computer and modem, to hook into a modem of another computer? It seems to me that libertarianism decrees that every person should have the right to do whatever he wants with his own property. Only the hacker’s own property, and phone lines for which he has bought access, is involved in this “computer crime.” So how can it be a crime at all?
But how then can copyright be justified at all? If I buy a book from a bookstore, by what right does the word “copyright” stamped on the book prohibit me from reprinting and reselling it? The answer there—and the reason why copyright is a common-law action—is that I contracted with the bookstore (who in turn contracted with the publisher and author), when I bought the book not to reprint and resell it. In short, my contract decreed that I do not own the book outright; I own every aspect of the book exceptthe right to print and sell it, which the publisher or author reserves to himself. Therefore, violation of copyright should indeed be illegal.
But the problem has been raised: What of third parties? Can they be said to violate copyright? Someone else, Zeke, sees the book in my house, or I lend it to him. He then copies it and reprints and sells the book. Since he didn’t sign any such contract, how can Zeke be violating copyright or doing anything illegal? My reply here is that whether Zeke signed any contract is immaterial. The important point is that my own title to the book was obtained with the right to copy reserved to the author/publisher; and that Zeke’s title cannot be any wider than my own. The point here is akin to a tort problem. Suppose that I had stolen rather than purchased the book. And suppose, too, that Zeke had bought the book from me in good faith, thinking that I had purchased it legitimately. Doesn’t he then really own the book, and can’t we then say that when Zeke is apprehended with the stolen book, that the injured bookseller can’t deprive him of it? Surely not, for a contract cannot convey a greater title than the one originally held. I stole the book, and therefore the book is stolen property, and Zeke must disgorge it if apprehended. He can then try to take damages out of my hide, for defrauding him. But the book properly belongs to the bookstore alone. Similarly, my title to any copyrighted book is not mine fully; I don’t have the right to copy, and therefore Zeke can’t have the right to copy either.
So while I defend the common law of copyright, I contend that there is nothing analogous to a copyright contract in the case of “theft of information” from a computer and its modem. The young hacker has not contracted anything with the other computer-owner; his only contractual status is with the phone company, whom he pays for access to its lines. And I can’t see that the hacker has committed any tort either. His “entry” into the other computer is only metaphoric. In actual fact, he was only able to get information through a phone line to which both owners have voluntarily hooked their computers.
I conclude, then, that there is here no computer crime at all. And that if the computer owner wants to safeguard his information from free-loaders, it is up to him to install security safeguards so as to make entry into his system impossible for those not paying a fee. The burden is on him to keep his own phone line free of unwanted persons. I conclude further that no new computer crime laws should be passed and that libertarians should oppose them as interfering with the property rights of hackers.
Why, in fact, do the owners keep their modems hooked into general telephone lines, despite the unchecked “theft of information”? Because of the great convenience in having a large number of computers hooked into each other to constitute a vast, nationwide data network. All right then; if the owners calculate their benefits and costs, and figure that the benefits to them of plugging into the information network outweigh the costs of hackers being able to use it for free, then so be it. If not, let the owners get out of the networks, or else tighten their security systems. Let them take their cue from the Defense Department, which has now decided to “build a fence” around their networks, especially their military computer networks, with “virtually uncrackable” coded messages and special passwords required for entry. (New York Times, Oct. 5).
Let us now turn from computer “crimes” to TV frequencies. The situation, I submit, is analogous. If a TV station, whether regular or cable, emits frequencies on a certain channel at a certain place, then it should have the private “ownership” of the right to transmit signals on such frequencies. Anyone else trying to broadcast on the same channel at the same place should be dubbed an aggressor against the property right of the pre-existing TV station. Indeed, that is precisely how the federal courts were beginning to apply the common law to the new technology of radio transmission (Tribune Co. v. Oak Leaves Broadcasting Station, Circuit Court, Cook County, Illinois, 1926), when the federal government, in panic that each radio station might obtain private property rights, rushed through laws to prevent it and to nationalize the airwaves (The Radio Act of 1927).
But even though every station should have the unimpeded right to transmit signals on any given channel or frequency, it should not be able to interfere with anyone’s right to receive signals. The station does not and cannot own the signal itself, only the right to transmit the signals. Why should Tex, a man with his own satellite dish or antennae on his own property, not have the right to receive any signals he darn pleases with his own equipment? Cable-TV stations, of course, can and do scramble their signals so that TV set owners who don’t pay cannot receive a clear signal. And that’s fine. Let Home Box Office scramble its signals, then, and good luck to it. But I find it monstrous that Home Box Office can and does send out the gendarmes to harass people ingenious enough to build antennae on their roofs in Brooklyn and Queens and point them toward the World Trade Center, thus picking up HBO signals without payment. If HBO doesn’t like it, let it set up a better scrambling system. If it can’t do so or it finds that alternative too costly, then it should jolly well have to put up with ingenious freebies, with satellite dishes or pointed antennae.
Finally, there is the almost incredible harassment of VCR owners. If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it. It is grotesque that movie producers might get the Supreme Court to agree to outlaw use of the VCR. Worse yet is that the movie producers are harassing poor SONY, who only manufactures and doesn’t use VCRs. Obviously, SONY has the deep pockets to enjoin and sue, which most home owners do not. Obviously, too, the government would have a great deal of difficulty mobilizing an enormous Gestapo, armed to the teeth, to break in on and confiscate or destroy the VCRs in many million American homes. Defend your VCRs to the death, fellow Americans! In practice, then, the movie people are not going to outlaw VCRs. They will just force SONY and the other manufacturers to pay a tax to the movie people, a tax which will be passed on to every VCR buyer. But the unfortunate principle—and the higher cost—might well be enshrined in the books.
The problem in all these cases is not whether “property rights” should or should not be upheld. The problem in each of these cases is: Who should have the property right? The computer hacker to do what he wants with his own computer and his access to the telephone lines, or the other computer owner? The signal sender or the signal receiver in the latter’s own equipment? The VCR owner or movie producers? In all of these cases I believe that the concept of copyright has been illegitimately extended to become invasive, and that the fact that the common law cannot combat these “crimes” is already an indication that they are not crimes at all.
But I am in an odd position here. Of all the people in the libertarian movement, I probably know the least about computer technology. There are few movement people lower tech than myself. And yet among all the computer mavens in the movement, I have seen no discussion of these thorny issues. But it is important to apply libertarian property rights theory, i.e. judgments in various areas on who is a criminal and who is a victim, to advancing technology. So on these matters I still have a relativelyopen mind. Before the Iron Door closes, I cheerfully invite libertarian theorists and high-tech mavens to submit papers, on any or all sides of this problem, for possible publication in the Libertarian Forum. Is there computer crime? Are VCR and satellite dish owners criminals? Please send in your discussions, and help advance libertarian theory.