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.