In the emerging technological and commercial environment defined by the digital encoding of information representations ‘ownership’ is coming to mean different things. For example, without encryption information, ownership is only relative since owners of network servers and those with privileged access to them (e.g. intelligence agencies, hackers) can easily acquire and use information representations transmitted through the Internet. This is currently how much of the pirate software is acquired and distributed. Such a state of affairs substantially compromises privacy and property rights. A digital information asset may also now be defined by its encoding format. If such an asset is encoded into a format that is then superseded by the commercial success of a rival standard, then the value of that asset can be quickly diminished to zero if the vendor of the superseded standard goes bankrupt. In most such cases it is usually in the interests of another vendor to take over the installed base and offer them a migration path to another format. The costs of such migration can be immense yet regulators have yet to intervene in such cases.
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If information stored in some medium is to be comprehensible to anyone other than the creator it must be encoded in the representation using a scheme known to others. While this may not always apply to painting, images or music where (traditionally) beauty is in the eye and ear of the beholder, the written word, maps and recorded performance need to be expressed in natural or symbolic language and encoded using characters or codes. “Such encoded language can physically be sent through the post, faxed over analogue telephone lines or transmitted via a broadcast link in order to transfer the information to others” (Carey 43).
Internet Privacy and Law
In societies where privacy is protected by statute or constitution the integrity of transfers of encoded language through these methods is guaranteed. In a pre-digital environment where art, photography, music, writing, or broadcast is transmitted to others privately they must be sent in a physical form and sealed in tamper-proof wrapping, or they must be sent using an analogue encoding (e.g. a fax) on a dedicated line. These methods provide a moderate level of security that is generally adequate, although in practice intelligence gathering agencies and others can circumvent them. In a digital environment most symbolic languages used by computers and sent over the Internet are readable by any other computer if intercepted (e.g. by IP address spoofing). The information can then be read, copied and passed on unaltered (or indeed, deleted). It is also trivial to impersonate an email sender by altering the ‘from’ identifier in a message, yet it is easy to trace email to the computer from which it is sent with the co-operation of all the mail server administrators in the chain between sender and receiver. Sending an information representation under these conditions is equivalent to sending a work through the post without wrapping. “Consequently, users in a digital environment fear that the exclusive ownership of their information is placed at greater risk in transmission over the Internet” (Pfleeger and Pfleeger 56). Accordingly, the nature of information ownership in the digital networked environment of the Internet is fundamentally changed by virtue of the universal encoding of the diverse forms of information. The implication is that new methods of secure coding and communication are needed to provide a signature with information, or to limit its transparency to users other than the intended recipient. It is also desirable to provide an anonymous method of communication analogous to posting an unsigned letter for certain purposes like ‘whistle-blowing’ or even Valentine cards! Anonymous re-mailers currently provide this function by stripping off the original sender information and passing it on. One method to provide secure coding is the use of cryptography to convert the information into a form only readable by those given the means to decode it. Public key cryptography is one widely used method: using a scheme like ‘pretty good privacy (PGP) users can encrypt information using a public and private key in which the private key is only available to the intended recipient. Using a strong form of PGP, and where the private key is uncompromised, public key cryptography provides a highly secure form of information exchange. “Yet the very security of the PGP method has raised government objections to it: even intelligence agencies can not access the information in this form” (Hillis 112). This has led to proposals from government to legislate for Trusted Third Parties (TTP’s) such as banks who would hold copies of private keys against a requirement to yield them up if required for ‘national security’ or criminal activity (a ‘key escrow’ scheme). These would become the only conditions under which electronic commerce would be guaranteed legally. “The ease with which the TTP, the government or a hacker could use these keys under conditions not authorized by the owner has led to severe criticism of these proposals” (Elmer 82).
It is already the case that courts can order disclosure of encoded information under specified conditions when the information is known to exist. However, the continued availability to all users of strong encryption methods, such as PGP, would prevent the ‘trawling’ of information sent over the Internet by intelligence gathering agencies or commercial rivals. As such encryption is the essential embodiment of ownership in a digital environment despite the problems it poses governments. Unless regulation of encryption is based on ‘justified intervention’ (for example, by a court) rather than general limitations (for example, by key escrow) then ownership in the absolute sense will change to a kind of conditional stewardship. At present most information is transferred in an unencrypted form as there is generally a low level of awareness about the risks and only a small percentage of all information transfers are made in digital form (Hillis 43). Although low-level codings of digital information representations such as ASCII or Unicode are quite universally understood by computers all over the world, standard setting at a higher level of information organisation in software (e.g. the operating system) has created functional digital information domains defined by standards. Most of these standards emerge through market forces (e.g. Microsoft Windows or Structured Query Language-SQL) and only a few have emerged as initiatives of the International Standards Organisation (ISO), or other statutory bodies (the MPEG digital video standard is one notable example). Although in some markets the developers may license the ‘standard’ technology to widen participation (the digital cellular phone standard GSM is one example), in others the standard setter may aggressively protect its control over the standard as it regards it as an asset (Sun’s java language is an example). “At present most of the dominant information standards have been developed by US companies and they can only be regulated effectively by the US Department of Justice” (Kaufman et al 87).
Protection of privacy is a need for millions of users around the world, so such methods as data protection and encoding are used by private companies and individual consumers. These emergent digital information standards now pose a major problem for competition regulators around the world as they span jurisdictions and the market dominance they create are not easily broken up by their nature. However, the US Department of Justice understandably only serves the US national interest: from their perspective an operating system ‘lock-in’ like Microsoft Windows is at least a domestic American ‘lock in’. These technological questions mark out the information infrastructures and security issues.
Carey, P. Data Protection: A Practical Guide to UK and EU Law. Oxford University Press; 2Rev Ed edition, 2002.
Pfleeger, Ch. P., Pfleeger, Sh. L. Security in Computing. Prentice Hall PTR; 3 edition, 2002.
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Elmer, G. (ed.). Critical Perspectives on the Internet. Boulder, CO: Rowman & Co, 2002.
Hillis, K. Digital Sensations: Space, Identity, and Embodiment in Virtual Reality, Vol. 1. Minneapolis, London: University of Minnesota Press, 2005.
Kaufman, Charlie, Perlman, Radia, Speciner, Mike. Network Security: Private Communication in a Public World (2nd Edition). Prentice Hall; 2 edition, 2002.