In Defence of the Bright Line – Aggression and Harm in the Digital Age
By Duncan Whitmore
In a recent discussion concerning the regulation of so-called “Big Tech”, Jeff Deist has raised the question of whether the proliferation of digital technology requires us to reconsider the traditional, libertarian conception of unlawfulness:
The larger question for libertarians is whether their existing conceptions of property rights, harms, torts, and free speech still work in a thoroughly digital era. Principles may not change, but facts and circumstances certainly do. Rothbard’s strict paradigm for what ought to constitute actionable force, especially as discussed in part II of The Ethics of Liberty, requires some kind of physical invasion of person or property. In doing so, Rothbard necessarily distinguishes between aggression (legally actionable) and the broader idea of “harm.” The former gives rise to tort liability in Rothbardian/libertarian law; the latter is part of the vicissitudes of life and must be endured. Theorists like Professor Walter Block and Stephan Kinsella have expanded on this “physical invasion” rule, applying it to everything from blackmail to defamation to (so-called) intellectual property. Aggression against physical persons or property creates a legally actionable claim, mere harm does not.
But Rothbard’s bright-line rule seems unsatisfying in our digital age. If anything, the complexity of modern information technology and the pace of innovation make the case against bright-line tests. For one thing, the sheer scale of instantaneous information ought to inform our view of aggression vs. harm. A single (false) tweet stating “famous person X is a pedophile” could reach hundreds of millions of people in a day, ruining X’s life forever. This is a bit worse than a punch to X’s nose in a bar fight, to put it mildly.
To avoid taking these remarks out of context, it should be noted that the main purpose of Deist’s article is to reject the option of a “sclerotic federal bureaucracy” resolving problems created by digital technology, in favour of evolutionary regulation arising from the adjudication of real cases. As such, one suspects that Deist is thinking out loud so as to raise possible issues rather than constructing a carefully considered argument regarding the scope of actionable harm. Nevertheless, he does reach an unqualified conclusion:
Libertarians and conservatives should broaden their conceptions of tort and contract remedies, and support the evolution of what constitutes harm in a digital era.
Given such certainty, a detailed examination of the matters that Deist raises is warranted.
Government internet regulation: this is how it will be here, and soonish I guess. Harriet- Harmonisation, Corpus Juris and all that.
Speaking merely personally and very generally, I don’t think we will ever return to a state of even partial liberalism, like what existed for some decades aaround the turn of the 19th Century and a little after. WE’d better try to enjoy what’s left, and make the best of the Endarkenment to come.
There will be local and passing opportuities for skilled people to keep stuff working, here and there, to preserve archives and libraries of knowledge where possible for the distant future, and to try to maintain something of what we might have had.
If Al-Quaeda (whatever they may be or have been) want to attack your interweb facilities – or whatever is being proposed by our dear leaders that said “Al-Quaeda” is doing – then WTF do you keep the characters whom you dub “Special Forces” for, eh?
If GCHQ (whatever and wherever that may now be) [and I quote here:-
Another new development will see the creation of a “cyber-forensics” team based at GCHQ, the Government’s eavesdropping centre in Cheltenham, Gloucestershire.
The Cyber Security Operations Centre will constantly monitor, analyse and counter cyber attacks as they happen.
Lord West said the terrorists’ capability to launch attacks was something he believed “will develop” in future.]
…then surely our spooks must know where the attack-droids are?
The problem, to me, looks like a setup for more control and surveillance of internet use by ordinary individuals in their offices and homes, not exactly a proposal to go out and get the buggers who __may__ actually be attacking it.
If people want broadband connections, then the market will discover ways to give it to them at profitable prices. It is _not_ necessary for a (socialist) state, in its death throes, to charge _everyone_ £6 a year to pay its favoured toadie-suppliers of “broadband”, for a probably substandard product such as 2Mb/s (would you guess?), so that this can be provided to the last 30% of people who have not got it already.
This is a back-door-content-receiving-licensing-scam, just like the BBC “TV license”, only worse, and now.
The next step will be a compulsory levy on purchase of (and later, annual ownership of) home computers.
You just watch.
Here’s an exerpt:-
“The report proposed a 50p-a-month levy on all fixed telephone lines to help bring next-generation broadband to the whole country.
This money would go to an independent Next Generation Fund that would provide subsidies for operators to deliver super-fast internet to areas where it would not normally be commercially viable…”
“Not normally commercially viable” …? That’s the “countryside, ducky, you know – that place you have decimated and re-created as a sort of GramscoRamblerNazis’ theme park…
Well, all I have to say is, it’s strange and surprising that __THIS__ government wants to “deliver broadband” (at “commercially-viable rates” ) to areas which contain none of its voters!
Very odd indeed. I smell a rat, and I see it floating in the air….they are up to something, the buggers, so they are….I think it wants to remotely-scan their hard disks, so it can clear them out once and for all.