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Watching an interesting TED Talk by Amber Case, I was reminded of a long-term guiding principle I have followed when faced with novelty. It’s an old idea that’s embedded deep in many traditions. The pithy summary says “there’s nothing new under the sun”, and it’s found notably in the Biblical book of Ecclesiastes that’s shared by several world religions.

Of course, we all want to believe we live in the Age of New, and indeed there’s much happening every year that’s breathtaking and marvellous. But the “Ecclesiastes Principle” still holds; if you think something breaks it, you probably need to think deeper.

I don’t mean there’s no innovation. Obviously human minds are continually and brilliantly rearranging the world. But “all rivers run to the sea, yet the sea is never full”. We allow ourselves to let that brilliance dazzle us into thinking the novelty we’re seeing must require  different rules for the people creating and using it. Remember in the early days of blogging when each person who lost their job by breaking their employment terms blamed their blog and not their behaviour?

You can see this vanity most clearly in the thinking that’s going into legislation in the face of technology. We keep seeing the implication that society needs protecting from new technology and that new laws are needed to do it. But that outlook is false. In all cases, technology is a tool in the lives of people. It’s the people who do the good and bad things with the technology, and the people who need regulating. So it has been since the story of Cain and Abel was written.

Spotting Bad Law

It may be that old law allows human behaviour to use technology in a harmful way without recourse. What should happen is adjustment of that existing law to close the loopholes. Instead, new laws are created that have the new technology specifically in mind. This is a fruitless approach. In earlier ages, the law rested on a hub-and-spoke topology of society where control points existed and could thus be regulated. Today’s technology rests on a meshed topology where restrictions are damage that gets routed around.

Laws that try to address the technology – “three-strikes” rules to cut people off the internet, pornography filtering and their like – may sometimes have a temporary effect that offers legislators a publicity moment. But in the medium term laws that are specific to a technology get routed-around. Worse, in the long term they become anachronisms that are abused.

You can spot these laws fairly easily. They focus on technology, creating broad powers that have little or no recourse and are guided by ill-defined or open-ended rules. They are often created in a hurry. They often seem to have been drafted by special-interest lobbyists.

Consider for example the wire-tap laws in the USA which were framed in an era before mobile video was even a dream, now used by the police to persecute citizens trying to gather their own evidence about arrests. Or consider the law from 1988, rushed into the US statutes as a reaction to a politician’s video rentals being published, that’s now preventing the addition of movie discussions to social media systems. Meanwhile in the UK, there was no need for a special “Facebook Law” to convict people of incitement to riot. As it turns out the existing law is perfectly adequate to address this apparently new situation.

Filtering Culture

With this in mind, I’m saddened and concerned by the moves the UK government is making to try to introduce “pornography filtering” in order to “protect children”. I can’t help suspecting these laws are being drafted with the help of “experts” supplied by an interest group. As Cory Doctorow so eloquently observes in his brilliant discussion of the subject, this is misguided populism that will put broad powers with no recourse into the hands of future opponents of freedom an innovation. Meanwhile, it’s unlikely to help anyone:

The proposals rely on closed software and closed blacklists – they have to, since “pornography” and “harmful” have no useful definition and are open-endedly subjective. My experiences of these systems match Cory’s; they block stuff that’s not a risk to anyone much and let through stuff that is. Much worse: there’s no realistic way for me to fix errors because of the closed and proprietary systems used and the lack of accountability. In these days of a meshed society, the very mention of closed technology – instead of the invocation of open source and open data – should be enough to signal a problem.

These days I expect new law about technology to be bad law. Technology merely provides ways to allow people to express their personalities, relationships and ambitions. When the law is wrong, it usually needs refactoring to allow for the people – who are still largely the same – to be regulated.

[First published on October 19, 2011 on ComputerWorldUK]

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