In my blog post of yesterday, 2/14/18 (https://www.lewrockwell.com/lrc-blog/hacking-crime-yes/), I said this: “I view digital content as property.” I misspoke, and thank those people, see below, who have corrected me on this matter (also see there a bibliography on this issue, to which I have contributed). In my view, when I’m not having a brain cramp, digital content consists of ideas, and ideas, not being scarce, cannot be owned as property. What I should have said, what I meant to say, what I would have said had I not suffered from that aforementioned brain cramp, was that while digital content is not property, anyone who violates real property rights by trespassing on physical property (e.g., by breaking in to someone’s house and copying their ideas), or doing this electronically (hacking, spamming, junk mailing, etc.) should be treated as a criminal, to the full extent of the law. That is, it would be justified to use violence against him, limited only by libertarian punishment theory. For a much more full examination of these matters, see below. I thank my mentor on this issue, Stephan Kinsella, and two anonymous readers of LRC, one for setting me straight, the other who raises an important but peripheral issue. Here is what appears below: Letter from anonymous reader I. Letter from anonymous reader II. My correspondence with Stephan Kinsella on this matter. Bibliography. Happy reading. But no one, please spam this important material to anyone else.
Letter from anonymous reader I:
From: j
Sent: Wednesday, February 14, 2018 5:07 PM
To: [email protected]
Subject: RE: Should hacking be a crime?
What about information compiled by use of taxation, ie public information? For instance, would it be immoral to access all the info the FBI/DOJ is withholding regarding the Russia Gate narrative/presentation and releasing it to the public or the all the email records of the city council members if it appeared as though there was (additional) corruption? Obviously this would be termed illegal even if the data wasn’t ransomed, but the law is often a refuge of scoundrels; is there a moral case for access and disclosure? Thanks, James
Dear J: in my view, it is impossible to steal from a crook. One can only liberate his ill-gotten gains from him. I regard the unjust government as a thief. Ergo…
Letter from anonymous reader II:
—–Original Message—–
From: N
Sent: Wednesday, February 14, 2018 7:10 PM
To: [email protected]
Subject: Re: Should hacking be a crime?
Dear Professor Block, Could you clarify what you mean in saying you view digital content as property? As I understand it, digital content is ultimately a series of ones and zeros. Are you rather referring to the digital media such as a hard disk? I don’t otherwise see how this statement comports with what I understand of your position on “Intellectual property”–that is, it’s not. Best regards, Nathan Rudd https://www.lewrockwell.com/lrc-blog/hacking-crime-yes/ Should Hacking be a Crime? Yes.
Dear N: Thanks for your important correction. See above. And below too.
My correspondence with Stephan Kinsella on this matter:
From: Stephan Kinsella [mailto:[email protected]]
Sent: Wednesday, February 14, 2018 8:49 PM
To: Walter Block
Subject: Re: hacking
I just read your comment on LRC (https://www.lewrockwell.com/lrc-blog/hacking-crime-yes/). I don’t quite agree with your analysis. “I view digital content as property. Hacking, is then akin to trespassing. Distributing to others the fruits of the hack (electronic nude photos), would be similar to breaking into someone’s house, stealing their physical nude photos, and sending them to others. These seem like real crimes to me.”
I don’t think there is such a thing as property rights in information. If someone hacks into your computer, they are using your computer without your permission. This is a use of a physical thing that you own. That’s trespass. If they do this and obtain private information and publicize it and this harms you in some way–then this goes to the measure of damages they owe you. For example if someone breaks into my house and they destroy my blank canvass and paints, maybe they owe me $1000 damages. But if I had already put the paint onto the canvass and have an original worth $100k, then when they destroy it, they have caused me more damage, so owe me more in restitution. Likewise if someone breaks into my house and they copy the manuscript to my unpublished novel, but never use it, the damage is one thing. But if they then publish the manuscript and this costs me $100k in lost sales I would have had from a first-mover advantage, the damages are greater–even though I don’t own copyright in the words and don’t have a property right in the extra sales I “would have made”.
Now in the case of an icloud account, I have a contract with Apple for them to host my data on their servers. They have a property right in those servers. If someone hacks into this, they violate Apple’s rights to their property–it’s a type of trespass. Apple can sue them, and presumably, might contractually need to indemnify me. If they have to pay me more, then their case for damages against the thief are higher because his trespass was the cause of greater consequential damages to them than some other, more innocuous, trespass might have been.
Suppose someone hacks into apple’s servers and gets one of my passwords. Now this in and of itself doesn’t damage me. It’s only if they use it. Suppose I have a keypad lock on the front door of my house and I’m on vacation. It normally prevents people from entering my house since they don’t know the pass code. But suppose now they know the pass code and use it to enter the house. Well the crime here is the breaking and entering. But this is because I own the house. Even if I left the door unlocked, it’s still breaking and entering if they open the door and enter without my permission. So it always comes down to property rights in tangible things. There is never property rights in digital things because you can’t own information. It’s a non-scarce resource. Information is always just a pattern but it has to be stored on some substrate or medium–some thing that is in and of itself already owned by someone. Information is always the impatterning of an owned thing, but the thing is already owned, and its impatterning–its shape and characteristics, like its color and weight and location and size and age–are not independently owned. I own a 50 year old, blue vase with the word “LIBERTY” inscribed on it; I own the vase. The vase that has those properties. I don’t own those characteristics–I own the vase. Information is always only a characteristic or feature or property OF a thing. Anyway this is how I see it—
Walter: Suppose someone breaks into my house and memorizes the manuscript to my unpublished novel. This trespassing criminal is now about to publish my novel. May I use force under libt law to prevent this use of his own property (paper, ink, printing press)?
Stephan: Yes. Because he is about to increase the injury done to you as a consequence of his trespass.
Walter: I have a machine such that if I force this criminal into it, and turn it on, it will erase his memorization of my novel, and do no other harm to him. May I do so under libt law, in your view?
Stephan: Yes. But not because you own the information.
Walter: My thought is that even though no one may own info, merely charging him damages after the fact is insufficient.
Stephan: I agree. True restitution is always impossible. Because you can never undo the harm done. After the fact all we can do is force the bad guy to pay monetary damages etc. But if there is a way to stop him from committing the crime, or from adding additional consequential damages, I think we are justified in doing this.
Walter: I may also use violence against him in these two ways to prevent him from engaging in acts that I can later sue him for damages. My point is that if I can later sue him for damages for doing X, I may beforehand, also, use violence against him to prevent him from so doing. Your thoughts?
Stephan: I agree. In fact in today’s trade secret law it’s a bit like this. If A employs B and contractually entrusts him with A’s confidential information (trade secrets), then suppose B resigns and A learns B is about to reveal the information to third party C. Then A can go to court and get an injunction against B not to reveal the info. I am in favor of this (what I disagree with is that the court can also order C not to use the info, even though there is no contract between A and C–this s why I oppose modern trade secret law).
But if B sends the information to the New York Times and they publish it, it’s now public info and is simply no longer a trade secret. The court can no longer use its injunction power to put the cat back in the bag–it can’t order everyone in the public to forget it. Or to not act upon on the information. Now the trade secret is lost and all A can do is sue B for monetary damages. For example if famous Tom is gay and his doctor knows, I think Tom could legitimately use force to stop the doctor from revealing this information. However, once the doctor makes the information public now everyone knows Tom is gay. Maybe he doesn’t get hired by Spielberg for his next movie because he’s lost his image. Tom could not sue Spielberg for “acting on this information.” He can sue his doctor for his lost profits though.
Bibliography:
Block, Kinsella and Whitehead, 2006; Kinsella, 2010;
Block, Walter E., Stephan Kinsella and Roy Whitehead. 2006. “The duty to defend advertising injuries caused by junk faxes: an analysis of privacy, spam, detection and blackmail.” Whittier Law Review, Vol. 27, No. 4, pp. 925-949; http://www.walterblock.com/wp-content/uploads/publications/block-etal_spam_whittier-2006.pdf; http://www.walterblock.com/wp-content/uploads/2009/06/faxesduty.pdf
Kinsella, Stephan. 2010. “Why Spam is Trespass.” January 8; http://www.stephankinsella.com/2010/01/why-spam-is-trespass/
2:55 pm on February 15, 2018
