Subject: Re: the .NET battle ends
From: Ben_Tilly@trepp.com
Date: Fri, 21 Sep 2001 16:51:40 -0400


Tom Lord wrote:
>        It is quite legal for them to outlaw the saving of digital
information
>        in forms without content protection.
>
> No way.  Common sense (among the technically sophisticated). It is
> totalitarian and tyranical, therefore unconstitutional.  But
> "totalitarian" and "tyranical" are not a sufficiently secure arguments
> to advance in court -- it seems to me the courts like to be more
> precise, more narrow, in their constructions.  The task, then, is to
> figure out more specifically how the two texts contradict one another,
> and thus how the dominant text wins.
>
What does common sense have to do with it?  The Constitution nowhere
outlaws totalitarian or tyrannical behaviour.  It can't, people
disagree too much on what totalitarian means.
>
>     Look, I detest the thought of the SSSCA.  I think it is a horrible
>     law that devastates industry.  However I can't even convince
>     myself that it is outside of the power of Congress to pass!  And I
>     also cannot convince myself that it regulates the software
>     industry in a more intrusive way than many other industries are
>     already regulated.
>
> A required seatbelt imposes little cost and has little impact on
> automotive technology.  Enforcing the requirement is nearly trivial
> and, with apologies to some libertarians I've known, is not
> particularly onerous or invasive.  Against that, a required seatbelt
> does a lot of social good.

I did not bring up seatbelts as an example of egregious abuse on the
part of Congress, I mentioned it as a specific example of how far the
Commerce Clause goes beyond just regulating prices.

But I have seen estimates that the original Volkswagon bug not only
does not comply with current safety laws, but could not be made to
comply without doubling the cost of production.  Not a trivial cost...

> The SSSCA imposes extreme costs, has tremendous technology impact, and
> is unenforcible except through horrible, unprecedented means.  Against
> that, it props up a specific implementation of "promote progress",
> written prior to the digital age, which implementation is clearly no
> longer in accord with the natural world.  They have no right to pass
> this bill.

None of those concerns are addressed in the Constitution.  While they
are arguments against passing the bill, you will find that the costs
imposed did not bar Congress from passing laws against discrimination
in the workplace, laws allowing extremely large punative judgements
against companies and making companies bend over backwards to provide
accessibility for disabled people.  Do you doubt that each of these
involves tremendous costs, both economic and social?  Again I am not
arguing whether the benefit is worth the costs.  That is irrelevant.
The point is that the fact that it is going to cost a lot of people a
lot of money doesn't change that Congress can go ahead and do it.

The SSSCA mandates creating an infrastructure in which people can
control the information that they produce.  One of the uses of this
infrastructure is the protection of traditional intellectual property,
but it is not the only one.  Besides which, I just asked a lawyer, and
based on the summary I gave him of what is in the SSSCA (some of the
terms of which he found rather extreme) he thought that it was well
within the powers of Congress under the Commerce Clause.

A final note.  If it passes and decimates the software industry, it
would not be the first time that an entire industry has been wiped out
in the US by a bad law.  Sorry for not knowing the specifics, but a
cousin of mine who specializes in Marine Law tells me that several
decades ago the US passed a law that was intended to protect a cruise
industry in the Great Lakes.  It didn't protect that industry, but its
provisions wound up killing the cruise industries on both coasts.
(Ever wondered why Alaskan cruises depart from Vancouver and not
Seattle?  Well now you know.)

Don't say that it can't happen.  It can.  It has in the past.  It is
supported by powerful and well-connected interests.  And with the
current political environment, the inclusion of words like "security"
are not going to hurt its chances one little bit.

Cheers,
Ben