Tuesday, December 2, 2014

Law Always Lags, As It Should

The rule of law, instead of the rule of individual persons, is of critical importance. I'm not going to throw in qualifiers, such as 'to Western Civilization', or otherwise defend that viewpoint here; if you don't buy into the concept, you are so very much on the wrong blog.

Now, in an apparent contradiction, let us talk about Western Civilization law, if for no other reason than to leave China and APT threat hype out of the picture. We do many of the same things, after all. State Department warnings about carrying devices into China? We are equally guilty of the same privacy violations. It just doesn't get as much as much press.

The current state of our legal framework lags quite a bit behind the times. Much of this is about politicians, who must be seen to be Doing Something about whatever threat is most in the daily news. Threats, of course, take many forms. Too Big To Fail gets a lot play, for instance. What we should be concerned about is criticality, not size, and these are not necessarily the same thing.

But, I digress.

I Have Hacker Tools, and Know How to Use Them

I am also confident that Oregon law enforcement does not care. Because 'Western Civilization' is not this vast uniform thing. A few years ago, Germany made this illegal, and much Internet drama ensued in the security trade press.

I suspect it has been selectively enforced, if it has been enforced at all. Oregon could pass a similar law tomorrow, and it would pose no threat to me. We have these people known as District Attorneys. They decide who to prosecute, which costs money, they do not have unlimited budgets, and they are not stupid.

I can prove that I'm on the side of the good guys, and have been for years. I seriously doubt that I would need to prove that 'hacker tools' are dual-purpose; I am confident that they get that perfectly well without my having to explain it to them. They are going to be far more interested in going after real bad guys, and will protect the budget that they need to do that.

Fine. I will likely help, pro bono (for the public good). Because living in a state with very low corruption (and I have lived in states, such as Louisiana, where corruption was just assumed) is great, and I do security at least partially because bad actors, arriving over the wire, have caused quite enough human suffering. Frankly, it just pisses me off.

I expect that the very same situation exists amongst pragmatic Germans.

That said, I am concerned in that laws passed in the heat of the moment, selectively enforced, are not compatible with the rule of law. Sadly, this has been seen, even here in Oregon.

Let's Talk WMDs 

Weapons of Mass Destruction. This language evolved from the military NBC (nuclear, biological, chemical) acronym. Simplistic, more understandable to the public, hence conducive to larger budgets, etc. But there has been an Oregon prosecution of a random bomb-throwing idiot, under WMD language.

I am not defending the guy; this was one of the more egregious displays of human butt-headedness in recent local history. But he wasn't exactly the sharpest knife in the drawer; I doubt he had the faintest idea of the horror of true NBC weapons. More importantly, I doubt most people who bought into WMD language do either. A random street bomb-thrower in Portland, Oregon is in no way equivalent to the Enola Gay, and the delivery of the atomic bomb that fell on Hiroshima, whether the first use of nuclear weapons was justified, or not.

Circling Back to My Point

There is a long history of laws being passed because politicians must be seen to be Doing Something. Given the immense (and increasing) amount of lobbying dollars available, and the desperation of candidates to somehow break into the modern news cycle, this seems likely to get worse before it gets better.

People complain that a large segment of law is out of touch with the times. Often it is about their pet peeve, whether that is issues connected with the Internet, such as copyright or net neutrality, or more general issues.

The universal claim seems to be that the law is behind the times. My take is that is better to have law that lags than law that leads. While lagging legal thought will certainly lead to injustice, it is less likely to lead to wholesale injustice. It is the lesser of two evils in an imperfect world.

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