Michael LaBossiere

The development of peer-to-peer networks has allowed internet users to swap files with each other in an easy and convenient manner. As should come as no surprise, a fair number of the swapped files (typically music and movie files) are being exchanged in violation of copyright laws. Unlike the famous Napster case, there is no main organisation for law enforcement officials to target, only a multitude of users linked in networks.

In response to this situation a member of the United States Congress, Howard Berman, has proposed a bill that will allow copyright holders to attack, via computer hacking, computers owned by those who violate (or allegedly violate) such copyrights. Such attacks could involve infecting the copyrighted files with viruses designed to make them useless or inserting programs to track the use of files to make sure the copyright is not violated. There are, of course, some restrictions: the US Department of Justice must be notified of such an attack, the attacks must be limited to those engaged in copyright violations and must cause no more than $50 in damage. While this proposed law seems to be clearly intended to benefit the major players in the entertainment industry, it would open the hacking door to anyone who holds a copyright.

While this proposed law and others like it might seem to be purely within the realm of law, they are philosophically interesting. While John Locke was obviously not aware of peer-to-peer networks, his philosophical views can be applied to this situation. As Locke notes, when people leave the state of nature and enter into political society, they give up their right to punish others and seek retribution. This right is transferred to the state which is to act on behalf of its citizens. This view prevails in the United States and most countries: citizens are not allowed, in general, to take the law into their own hands. Instead, the state’s law enforcement and judicial components handle such matters.

However, Locke notes that "the lack of a judge with authority puts all men in the state of nature." In this state of nature people are permitted to judge their own cases and seek retribution against those who have done them wrong. This is, of course, because they have no higher authority to which they can appeal. Locke does not, of course, endorse uncontrolled vengeance: he holds that retribution must be proportional to damage suffered and within the limits of reason and conscience.

Given that computer networks span the globe and the obvious lack of a world government (or even a truly effective international legal system), it seems evident that copyright holders and those who violate those copyrights will often be in the state of nature. As an example, US copyright holders might have their copyrights violated by people living in countries that do not recognise American legal authority or even by people who live in areas of the world that lack a centralised authority. In such cases, it would be all but impossible to bring about effective legal action against the offenders. However, being connected to the internet, the offenders are accessible to hacking. Such attacks would be practical and, more important from the philosopher’s standpoint, ethical as well, provided that the attack was limited to rendering the stolen property useless. After all, the damage would be proportional to the harm and it is a well established moral principle that a thief is not wronged when the rightful owner reclaims her property.

One obvious objection is that attacks could not be justified if launched against citizens in countries that permit legal redress in such cases. In response, it can be argued that even in such cases the state of nature still exists. The internet, even within the confines of a single country, has been aptly described as a digital "wild west" with no sheriff in town. Hence, such attacks would still be justified.

Of course, as proponents of such laws should note, the moral sword cuts both ways. If copyright holders have the right to attack those who violate their copyrights, it would follow that similar attacks would be justified as well. The general principle behind the proposed law is that people have a right to protect what belongs to them and hacking is a legitimate means of achieving that end, provided that the relevant authorities are unable or unwilling to take action in such situations. Thus, for example, it would seem that people would have a moral and legal right to hack into computers that contain information about them that was gathered improperly, provided that the government failed to act to protect their privacy. As a specific example, if a company secretly gathered information about a person’s web surfing habits, that person would have the right to hack that company’s computers to render that information useless. The same principle would also seem to extend that right to include attacks by individuals on governments. It also seems reasonable to extend the principle further so that it legitimises additional types of hacking that are aimed at righting wrongs, but such considerations are beyond the scope of this column.

Michael LaBossiere (ontologist@aol.com) is an associate professor of philosophy at Florida A&M University. His monthly Provocations column appears in the Café section of TPM Online (www.philosophers.co.uk)