Monday, June 29, 2009

Optional Law

Imagine there was a law that required everyone to pay a $100 tax each year. However, there is no way to find out who paid their tax and who didn't. All the government knows is the total amount of money that comes in and therefore the percent of people paying the tax. Is avoiding this tax ethically justifiable?

I don't mean to suggest that actions are only unethical if you get caught; I don't believe that is the case. When 10 people commit similar crimes and only 9 get caught, that doesn't make it right for the guy who got away. Rather I'm asking whether it's ethical to break a completely unenforceable law. I'm not sure, and perhaps it depends on how heinous the forbidden action is. But our perceptions of right and wrong change over time.

As a concrete example, consider the anti-sodomy laws that many American states had before they were struck down as unconstitutional. These laws restricted the sexual conduct of consenting adults and were virtually impossible to enforce. In the centuries since these laws were first passed, the majority public opinion no longer regards oral and anal sex as immoral.

The general argument against unenforceable laws is that they only punish people honest enough to follow them. In the tax example, both honest and dishonest people would get the benefit of however the nation spent the tax money, but only the honest people paid for it. This is not fair, though even unfairness does not necessarily make ignoring the law ethical. The argument also gets murkier when the law is more than 0% unenforceable, and when the prohibited action has a negative impact on society as a whole. Murder is wrong even if it could never be enforced, for example.

A more recent example is the set of laws against unauthorized music downloads. Music companies don't want people using the things they produce without paying for them, but modern technology has made it very easy for people to do this anyway. The basic structure of the problem looks like this:
  • Party A (the music company) owns the rights to some information.
  • They allow party B (the purchaser) to use this information, but not to distribute it.
  • However, they cannot prevent party B from giving it to party C (the downloader).
At first, music companies tried to stop downloaders, but it's really too difficult to figure out who they are. So the latest tactic has been going after purchasers who distribute the music online. Even that has been very difficult, often requiring subpoenas to ISPs, and these tactics have not substantially increased music company profits or decreased illegal downloading.

The question is whether it's ethical to download music you haven't purchased. There is not much benefit to society from unauthorized downloading, but there is also not much cost. It's true that record companies lose some money from people who would otherwise have paid, but not every downloader was a potential customer. Plus the increased exposure from free downloads has in some cases turned into more paying customers, though I suspect the net effect is still a loss most of the time.

At any rate though, the real problem is that music companies are distributors who can no longer control their product distribution. No amount of legislation can make this business model profitable again; they need to find a new way to add value to customers before customers will give them money again. I'm undecided about whether illegal downloads are ethical. That said, music companies need to suck up the fact that it will happen anyway and stop trying to fix unsolvable problems.

Of course, it's easy for consumers to tell that to music companies, but harder to take that advice yourself. Here's the grand irony: The same people who support legalization of free online music are generally opposed to unauthorized government surveillance. When it's someone else taking their own words without permission, they strangely don't see freedom of information in the same light.

But the government's wiretapping program has clear parallels with music downloads:
  • Party A (music companies or a citizen on a phone) is the owner of information.
  • Party B (music purchasers or the telephone company) was given this information with the understanding it would not be given to people that A did not authorize.
  • Party C (music downloaders or the government) was given the information by party B anyway.
Similarly, it's not clear what the costs and benefits to society are. The government might be making the country more secure, or maybe the information doesn't help. No one wants to have their privacy invaded, so clearly there is a cost, but I'm not convinced the cost is freedom. Using the information as a way to ferret out "unpatriotic citizens" isn't that practical given the volumes of data that need to be analyzed by hand. Government agencies only have so much money to spend, and the biggest threats to national security are not unpatriotic ideas-- they are crazy people with bombs.

The biggest societal danger is of high level politicians trying to access information from specific domestic adversaries and using it for personal gain, but you don't need a massive government program to cull information on just a few thousand civilians. While this danger is real, I suspect it existed well before the Bush administration set up this widespread surveillance program.

So just as I haven't made up my mind about music downloads, I also can't decide on warrantless surveillance of citizens. They seem similar enough that they should both be moral or both be immoral. It's possible to argue for one and not the other, but that's a difficult argument to make; I'm not sure what that argument would be.

But there's one thing I am certain of:

Like the music companies, we should worry about solvable problems, not unsolvable ones.

No amount of legal pressure will have any impact on warrantless wiretapping. If you really care that the government might find out that you're meeting friends for drinks, then don't tell people that over the phone. Certainly you should stop posting it on Twitter. Or alternatively, learn to care just a little less about privacy. In the grand scheme of things, none of us are really that important, so you might as well be happy instead.


BvG said...

I do agree that downloading stuff that you should pay for is morally wrong. So is wiretapping, warranted or not (more on that later). On the other hand, illegal is what is against what the state dictates you to do. Wetter these rules are based on democracy, dictature or monotheism, doesn't change anything in regards to legality, but they might regarding morality. Additionally, morality is in the eyes of the beholder, where all laws are fixed by the state (for example, in case of an ambiguity, there's often court decisions to clear it up).

So your state might fix different rules then my state. Case in point, in Switzerland it is allowed and legal to download (but not upload) any medial work that you want (movies or music). To me, it is also morally right, as there's a kind of "tax" on all blank cds, musicplayers and even harddisks. There is money being paid for the "free" download, and it is divided according to agreed uppon rules amongst the producers of said works. Other people might argue that a lot of people are paying, but not profiting by this law, and therefore it is immoral.

Unwarranted wiretapping on the other hand is a power issue to me, not a legality one. It's against several major corner stones of democracy, including the seperation of power and the presumption of innocence. Additionally, it's unconstitutional and illegal in almost every democracy that currently exists. To me, there is nothing that warrants any mitigation of these fundamental corner stones of democracy. Trying to increase security beyond the point where it reduces democracy and accountability of the state, as in this case, is therefore morally wrong. History as shown that it will lead to an all powerful state, and therefore will produce various kinds of despotism in the long run.

Bryan said...

I saw this earlier, but needed to collect my thoughts. There are a lot of issues involved.

Overall, I agree with your conclusion. People who advocate the freedom to download music, should be advocates for removing the Patriot Act. I do not like copyright law, the Patriot Act, and other, similar laws.

I am a little confused by your reasoning however. I usually argue from the benefits of social freedoms while you are focusing on a concept of unenforceability.

Sirlin ( has developed similar concepts for laws in this part of his book, Playing to Win.(
He is also an advocate of stronger protections for freedom.(

I'm a little confused by what you mean by enforceability, however. Using Sirlin's terms, it passes the test of Enforceable using IP logs from ISPs, If they get a warrant for their release. I think that there are more arguments against downloading using the discrete and warranted criteria.

You ask the question: "Is avoiding this tax ethically justifiable?".
I think that this depends on the reason for unenforceability.

If it is poorly defined (not discrete), you might not know whether you are breaking it or not.

If it intrudes on basic freedoms, such as Fair Use, then the law may be able to be ethically ignored because it went beyond its authority. I think this is the core of your argument, at least for Sodomy and music downloading laws.
The Patriot Act and Wiretapping without a warrant also intrude on our basic freedoms (Fourth Amendment - Freedom from Search and Seizure), but I don't see what that has to do with unenforceability.
This is also the core of Sirlin's example for the criterion of Enforceable.
I would like to hear more about this, but currently I think only the parts that intrude on your freedoms can be ethically ignored.

I don't think citizens can ethically ignore a law that is discrete and enforceable, even if they believe that it is unwarranted.

I think that your point on how heinous the crime is affecting the morality of the law is more a difference between morality and law. Some actions will always be morally wrong, regardless of the law. The law may make additional actions morally wrong, even while ignoring other moral wrongs. Murder is morally wrong, even without a law, so this has nothing to do with the morality of laws concerning murder.

Ted Vessenes said...

I see a strong difference between ethics and legality. In my mind, ethics is what's in the best interest of society and legality is what the law defines. It's good if these things are at least somewhat in sync, but they need not be.

For example, American law used to permit owning slaves. Clearly this is not in the best interests of society, making it unethical, but it was legal.

Also, some things like lying are unethical the vast majority of times. However, the law only prohibits a small portion of potential lies (generally things called "fraud"). Calling in sick when you want to spend a day at the beach with your mistress is unethical, but you simply cannot make a law preventing it. Such a law could not be enforced anyway.

I like Bryan's point about the boundaries of legal authority. It's ethical to break laws that overstep their legal authority. The laws from the 1800s that criminalized assisting runaway slaves would fall under this category.

There's a strong case to be made that any law that's totally unenforceable has overstepped its authority and therefore is no law at all. The hypothetical example of the $100 tax would be such an example. In practice, it's no different from the government saying, "We kindly request everyone to donate an $100 on their taxes, but have no way of telling whether you do this."

I did not mean to suggest that downloading copyrighted music was totally enforceable-- I know there are ISP logs which can be properly acquired via subpoenas. But the amount of resources required to actually prove a crime has occurred, as well as the low magnitude of the crime's societal impact, makes me think law enforcement resources are much better spent on other matters.

These laws are not 100% unenforceable; they are merely 99.999% unenforceable. I'm suggesting that roughly 1 in 100,000 illegal downloaders actually faces a legal penalty for their actions. Clearly something has gone awry if you are missing 99.999% of the criminals. Perhaps it would be better to reclassify such behavior as a minor misdemeanor and only litigate in the most heinous of situations.

Are these laws like the DMCA even within their legal boundaries however? Because of the difficulty of enforcing these laws, the DMCA comes with all kinds of additional restrictions and provisions intended to make enforcement easier, and it's arguable that these provisions violate the fourth amendment.

You are correct that warrantless wiretapping programs clearly violate the fourth amendment as well. So here's one possible set of conclusions:

A) The DMCA is unconstitutional because it stretches too far, but a less restrictive law that criminalizes illegal downloads would be ethical.

B) Warrantless wiretapping is unconstitutional and should stop.

Of course, this still leaves America in the same situation it's in now. Even if you think warrantless wiretapping is unethical, what can you do about it? And the music companies are worried about a similar thing. The DMCA hasn't stopped free music downloads at all, so why would a less restrictive law be any different.

On some level, people are just unhappy with the reality of the situation and aren't sure how to change it. I confess I don't have any good ideas here other than "worry about what you can change, not what you can't".

Bryan said...

I think we're agreed on a lot of this then.

Libertarians argue that we should remove these laws on the ideals of individual freedom. The DMCA, illegal downloading, and unwarranted wiretapping restrict our freedoms with almost no benefit in return.

If you believe that copyright is necessary for certain businesses to operate, Michael Masnick of TechDirt has long argued and presented examples where this is not the case. Industries without copyright, such as the fashion industry, are more competitive and innovative than industries with it.

Your arguments against the current laws on downloading remind me very much of America's war on drugs. I'm not sure how enforceable you think current drug laws are. Regardless, most of the proponents for removing it argue the enormous costs for maintaining and enforcing these laws. They cite studies which show that the vast majority of our prisoners are imprisoned on drug related offenses.

Even so, I think that the primary argument here should be for personal freedom. If the law is a good but inefficient, it could be replaced with another one until we realize that law's problems. If the law is bad, however, it will be removed.

Ted said...

I'll make this short and sweet. The term "Optional Law" is like the joke about the terms jumbo shrimp or military compassion.

In my view all Laws derive their power from nature. I am going to use the idea that the founders of our nation had regarding Natural Law. While I am not going to be naive and label them with a given religion, they all believed that there was a necessary primary cause.

Laws are 'Good' to the extent to which they conform with the reality as seen from the first cause.

With this in place, we can now work our way towards the idea of enforceability. One does not need to enforce the Laws of the physical universe. However one does need to enforce the laws of ownership as extended from derived value enhancement because humans are free moral agents with the ability to break the Moral Natural Law.

It is the role of the government to create and enforce laws (lowercase) which conform with the Laws (uppercase) of the universe. Now if the governed decide that the civil laws they create to form a civilization are approaching uninforcability, they need to look at how well their laws conform to the natural law from the viewpoint of the primary cause.

I wish I could make that shorter.

Bryan said...

Looks like we still have some disagreements.

I do not believe that laws derive their power from a natural law, though I do believe that such a law exists.

Laws derive their power from the people. The people subject themselves to the authority of government as a whole under a social contract. If you ignore the special case of government and look to private organizations, companies, churches, and so on, this becomes obvious. People give the organization power over them in order to become part of the organization.

This is why it is ethical to ignore laws which go beyond their authority. It is because, as a member or citizen, you have voluntarily submitted yourself to the authority. In extreme cases, you may need to withdraw from the organization, or secede, and move to another one. That is removing their power of law over you.

Ted Vessenes said...

Not everyone named "Ted" is me. Personally I believe that it's best when ethics coincides with law, but that doesn't always happen.

What Ted Tschopp is talking about is related to the British concept of Common Law, which was also the foundation of the American legal system. The basic idea is that laws encode specific concepts that society as a whole agrees on anyway, even if it's not written down. For example, pretty much everyone thinks murder is wrong. So even if there were no specific laws on paper that prevent murder, people can be convicted of murder based on common law alone.

I don't personally believe there's an a priori moral code to the universe, and it's hard to argue for that if you can't argue for a diety. But there are ethical restrictions that are emergent from the very structure of the universe. "Don't murder your family" is one that applies to all animals with strong social structures, for example, which includes almost all mammals and birds.

There's nothing magical about why murder is wrong. It's just in the best interest of the species as a whole not to do it. You can think of this as analogous to prime numbers. No one "made" prime numbers. They are merely an emergent feature of the natural numbers.

Of course, I still believe that it's possible to create laws that are unethical. Ex post facto laws and bills of attainder are good example, both of which are outlawed by the US constitution.

Bryan said...

Oops, sorry Ted. Both of you.

Don't murder your family is a universal rule? Don't a lot of animals eat their young? Don't some eat their mates? I'm not so sure about that.

Common law sounds very weird to me. How can they know when it oversteps its bounds?