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Privacy: Our parents were taking liberties for granted in their analog world, liberties that are not passed down to our children in the transition to digital — such as the simple right to send an anonymous letter.

Sometimes when speaking, I ask the audience how many would be okay with sites like The Pirate Bay, even if it means that artists are losing money from their operation. (Do note that this assertion is disputed: I’m asking the question on the basis of what-if the assertion is true.) Some people raise their hands, the proportion varying with audience and venue.

The copyright industry asserts that the offline laws don’t apply on the Internet when they want to sue and prosecute people sharing knowledge and culture. They’re right, but not in the way they think. They’re right that copyright law does apply online as well. But privacy laws don’t, and they should.

In the offline world, an analog letter was given a certain level of protection. This was not intended to cover just the physical letter as such, but correspondence in general; it was just that the letter was the only form of such correspondence when these liberties were drafted.

First, the letter was anonymous. It was your prerogative entirely whether you identified yourself as sender of the letter on the outside of the envelope, on the inside of the letter (so not even the postal service knew who sent it, only the recipient), or not at all.

Further, the letter was untracked in transit. The only governments tracking people’s correspondence were those we looked down on with enormous contempt.

Third, the letter was secret. The envelope would never we broken in transit.

Fourth, the carrier was never responsible for the contents, of nothing else for the simple reason they were not allowed to examine the content in the first place. But even if they could, like with a envelopeless postcard, they were never liable for executing their courier duties — this principle, the courier immunity or messenger immunity, is a principle that dates as far back as the Roman Empire.

These principles, the liberties of correspondence, should apply to offline correspondence (the letter) just as it should to online correspondence. But it doesn’t. You don’t have the right to send anything you like to anybody you like online, because it might be a copyright infringement — even though our parents had exactly this right in their offline world.

So the copyright industry is right – sending a copied drawing in a letter is a copyright infringement, and sending a copied piece of music over the net is the same kind of copyright infringement. But offline, there are checks and balances to these laws – even though it’s a copyright infringement, nobody is allowed to open the letter in transit just to see if it violates the law, because the secrecy of private correspondence is considered more important than discovering copyright infringements. This is key. This set of checks and balances has not been carried over into the digital environment.

The only time a letter is opened and prevented is when somebody is under individual and prior suspicion of a serious crime. The words “individual” and “prior” are important here — opening letters just to see if they contain a non-serious crime in progress, like copyright infringement, is simply not permitted in the slightest.

There is no reason for the offline liberties of our parents to not be carried over into the same online liberties for our children, regardless of whether that means somebody doesn’t know how to run a business anymore.

After highlighting these points, I repeat the question whether the audience would be okay with sites like The Pirate Bay, even if it means an artist is losing income. And after making these points, basically everybody raises their hand to say they would be fine with it; they would be fine with our children having the same liberty as our parents, and the checks and balances of the offline world to also apply online.

Next in the series, we’re going to look at a related topic – public anonymous announcements and the important role the city square soapbox filled in shaping liberty.

Privacy remains your own responsibility.

Privacy: The liberties of our parents are not being inherited by our children – they are being lost wholesale in the transition to digital. Today, we’ll look at the importance of posting anonymous public messages.

When I was in my teens, before the Internet (yes, really), there was something called BBSes – Bulletin Board Systems. They were digital equivalents of an analog Bulletin Board, which in turn was a glorified sheet of wood intended for posting messages to the public. In a sense, they were an anonymous equivalent of today’s webforum software, but you connected from your home computer directly to the BBS over a phone line, without connecting to the Internet first.

The analog Bulletin Boards are still in existence, of course, but mostly used for concert promotions and the occasional fringe political or religious announcement.

In the early 1990s, weird laws were coming into effect worldwide as a result of lobbying from the copyright industry: the owners of bulletin board systems could be held liable for what other people posted on them. The only way to avoid liability was to take down the post within seven days. Such liability had no analog equivalent at all; it was an outright ridiculous idea that the owner of a piece of land should be held responsible for a poster put up on a tree on that land, or even that the owner of a public piece of cardboard could be sued for the posters other people had glued up on that board.

Let’s take that again: it is extremely weird from a legal standpoint that an electronic hosting provider is in any way, shape, or form liable for the contents hosted on their platform. It has no analog equivalent whatsoever.

Sure, people could put up illegal analog posters on an analog bulletin board. That would be an illegal act. When that happened, it was the problem of law enforcement, and never of the bulletin board owner. The thought is ridiculous and has no place in the digital landscape either.

The proper digital equivalent isn’t to require logging to hand over upload IPs to law enforcement, either. An analog bulletin board owner is under no obligation whatsoever to somehow identify the people using the bulletin board, or even monitor whether it’s being used at all.

The Analog Equivalent Privacy Right for an electronic post hosting provider is for an uploader to be responsible for everything they upload for the public to see, with no liability at all for the hosting provider under any circumstance, including no requirement to log upload data to help law enforcement find an uploader. Such monitoring is not a requirement in the analog world of our parents, nor is there an analog liability for anything posted, and there is no reason to have it otherwise in the digital world of our children just because somebody doesn’t know how to run a business otherwise.

As a side note, the United States would not exist had today’s hosting liability laws in place when it formed. A lot of writing was being circulated at the time arguing for breaking with the British Crown and forming an Independent Republic; from a criminal standpoint, this was inciting and abetting high treason. This writing was commonly nailed to trees and public posts, for the public to read and make up their own minds. Imagine for a moment if the landowners where such trees happened to stand had been charged with high treason for “hosting content” — the thought is as ridiculous in the analog would, as it really is in the digital too. We just need to pull the illusion aside, that the current laws on digital hosting make any kind of sense. These laws really are as ridiculous in the digital world of our children, as they would have been in the analog world of our parents.

Privacy remains your own responsibility.