June 16, 2009

It is the tale of two roads. One, the road to Justice, is pockmarked with potholes, its top layers so easily corroded by Information Age conditions. The other, the road to Hell, is a marvel of maintenance for fixing the road to Justice ends up paving the one to Hell over and over again, despite the good intentions of governments world wide.

Take for example the fight against illegal downloads. Nicolas Sarkozy, the French President, thought he had the solution. The HADOPI law (1) was going to let an administrative agency cut off Internet access to users whose IP address had been repeatedly flagged for illegal downloads. The intention was unimpeachable as, contrary to people, information is not borne free and data thiefs ought to be punished, all of them I may add. Automated enforcement was planned to make the threat credible.

Fortunately the French Constitutional Council (2) has seen through this good intention. Its opinion had been requested by socialists members of the French National Assembly, according to Guillaume Champeau's report (*). Now Samuel Laurent writes how the Council has found the whole enforcement process too slick by half (**) (4). Internet access today is a right which should not be abridged without due process, in a court of law, the burden of proof resting on the prosecution rather than the accused.

By now faithful readers have recognized a familiar dilemma. Catching the person responsible for an illegal download is a pattern recognition task and so must trigger false positives and false negatives. And the more one tries to rope in all the thiefs, i.e. decrease the false negatives, the more often one ends up wrongly accusing upright citizens, i.e. increasing false positives. The executive branch of government tends to focus on policing society. When our liberties are at stake, it is good to know its judiciary branch provides the necessary counterweight and takes their protection seriously.

"The issue, claimed les sages, the court's wise men, was one of human rights. My view is that they have got their rights very wrong", complains Stephen Garrett (***). From an executive in a company whose commercial interests are hurt by online piracy, his demand for a better enforcement of intellectual property rights is perfectly justified. His rant against a decision he correctly sees as "ripp[ing] the heart out of [HADOPI]" is not.

Indeed imagine the law had been found constitutional. Ordinary prudence would have compelled all upright French citizens to preemptively claim the safe harbor provision of HADOPI. This measure was simple enough, install a software yet to be defined whose functionality was to "secure the Internet access of its user", in other words to avoid IP theft. Now it happens the executive branch of the government of another country has recently decided all its citizens must buy computers prepackaged with a software whose purpose is to secure its user against naughty IP's.

Read the dispatches filed by Andrew Jacobs from Beijing (****), (*****). "China is facing a storm of protest at home and abroad". "Filtering software that the government has mandated [...] is so technically flawed that outsiders can easily infiltrate a user's machine, steal personal data or plant destructive viruses." And a blogger is quoted to say "people will always find a way to break through these controls".

Is the fight against online pornography any less urgent than the fight against online piracy? I would rather argue that corrupting a child's mind is worse than lifting a song from a store. And unless one applies a double standard when assessing governments' intentions and engineers' ability to develop flawless computer programs, one will recognize the similarity between the Chinese and the French plans to police by software. Neither pattern recognition nor the Internet respect political boundaries and the pattern recognition dilemma is everywhere identical. The difference lies entirely in actual execution and the power of the executive to invoke la raison d'Etat.

These fillips are no stranger to comparing two countries as a way to elucidate issues (5). Why not enlarge our horizon? The United States has been justifiably preoccupied with questions of national security. Proving one's identity falls victim of our dilemma and Susan Stellin tells us of the lingering concerns about the no-fly "terrorist watch lists" as they become the responsibility of the Transportation Security Administration (******). We share Marc Rotenberg's calls in the name of the Electronic Privacy Information Center for more transparency and easier redress.

But the dilemma is even more acute as Barack Obama, the US President, must shape up his cyberdefense initiative. Thom Shanker and David E. Sanger leave no doubt in their report as to the difficulty of balancing military efficiency and citizens' privacy (*******).

Nothing will eliminate the dilemma but I have modestly advocated before how to reach a balance. Set a predefined, automatic compensation to each victim of a false positive, and thus use budget constraints to rein in executive exuberance. Maybe this idea should be tested with the HADOPI law. Were my right to Internet access be given a reasonable monetary value, a thousand euros per month for example to be paid by my accuser if she fails to prove her case, one would suddenly see serious economic studies on the benefits of preventive enforcement in a revised HADOPI law.

If this scheme of mine does not work, I obviously plead non guilty in view of my good intentions.

Philippe Coueignoux

• (*) ............. Hadopi: 11 points soulevés devant le Conseil Constitutionnel, by Guillaume Champeau (Numerama.com) - May 19, 2009
• (**) ........... Le Conseil Constitutionnel censure la risposte graduée, by Samuel Laurent (Le Figaro) - June 11 , 2009
• (***) ......... Piracy is threatening the survival of creative industries, by Stephen Garrett (Financial Times) - June 15, 2009
• (****) ....... Uproar Over China's Rule On Software Filter for PCs, by Andrew Jacobs (New York Times) - June 11, 2009
• (*****) ..... Experts Say Chinese Filter Would Make PCs Vulnerable to Intrusion, by Andrew Jacobs (New York Times) - June 13, 2009
• (******) ... Flying? No Nicknames, Please, by Susan Stellin (New York Times) - June 9, 2009
• (*******) . Privacy May Be a Victim in Cyberdefense Plan, by Thom Shanker and David E. Sanger (New York Times) - June 13, 2009
• (1) see the text of the proposed HADOPI bill (in French)
• (2) see the French Constitutional Council in the wikipedia
• (3) see the French National Assembly in the wikipedia
• (4) see the decision of the French Constitutional Council (in French)
• (5) see "China and the US" and "France and the US" in the major theme index