Download Ever since the 1980`s, with the dawn of the information era

Ever since the 1980's, with the dawn of the information era, technological developments have
increased in pace, requiring legislators and regulators to work much faster than they had previously
been required. In some cases, laws became obsolete sometimes even before the legislative process
had finished.
Recent technological developments have dawned a new virtual era, in which one can cause events
to occur all around the world without leaving his room. Moreover, private actors are now able to
encrypt information beyond the reach of the government, and even produce end products, such as
weapons, hidden from the eyes of any regulator.
These changes have brought an added difficulty to the legislative process, changing basic concepts
such as "place" and "possession", entangling even more the basic enforcement process. When
national borders lose their meaning and when money can travel all over the world, without being
connected to an identified person and without leaving a trace - enforcement agencies all over the
world are hitting insurmountable barriers.
In parallel to these events, many technological advances have also brought to the demise of
traditional financial institutions, and the rise of trust based systems. Application such as AirBnB,
Uber and Kiva, which rely upon direct transactions between individuals, based upon documented
reputation have replaced Taxis, Banks, Hotels. Online dispute resolutions (ODRs) are becoming
more common, when people volunteer to partake in online solutions in place of the old judiciary
system.
Will these new trust based systems replace failing enforcement establishments? Should the
government enable public private based cyber enforcement? If so, how far voluntary participation in
enforcement should be enabled. This study will try to differentiate between investigations, judicial
and penal systems. The study will study will examine unique issues which may come up in each
enforcement avenue. Will we allow apps to punish? Can the government control this process if the
ball starts rolling?
In App We Trust
Study Proposal
Introduction
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This study will try and question our response when technology not only hastens the pace of lives,
but also changes fundamental concepts of our legal system – specifically our ability to enforce laws.
First, I will review recent changes and try and show that while the information era brought about
rapid, yearly and sometimes even monthly changes in technology, the virtual era has added another
aspects changing basic conceptions of physical place, physical borders and provided private citizens
with abilities which were once only in the realm of the state.
I believe that this review will show that by itself, law cannot accommodate both for the speed and
for the changes in basic legal concepts – resulting in laws becoming unenforceable, and the
institutions which enforce them becoming obsolete.
The second part of this study will try and analyze whether trust based systems, currently
implemented in business models such as AirBnB and Uber, can substitute traditional enforcement
institutions- investigative, judicial and punitive – and show how these changes may impact our
perception of how law will work in the near future. I will try and discuss the difficulties such
systems may pose, to constitutional basics, to the power of the sovereign over the people, practical
difficulties and more.
I. From Evolution to Revolution
Since the 1980’s with the advent on the information era, technology has been developing in an ever
faster growing pace. This rapid development has required the law to adapt much faster than it used
to1. Legislators, which have always been slow to react, have been struggling to respond2. Numerous
scholars have suggested various ways of assisting bureaucracy of legislation to work faster and
adapt – either by less specific legislation or by transferring regulation to technology-focused
agencies which can adapt quicker 3 . These studies presume, in my opinion, that technological
advances are a linear upwards process, so if we'll do the same process only faster, we'll have a
solution.4 The problem is that in the past few years, technological evolution has not only increased
in pace, but has also changed basic core interactions between people. People are not really where
they seem to be, money has nothing to do with physical presence, and a person can physically harm
another without even entering a victim’s room.
Living in the Virtual Era
1
Joel R. Reidenberg, Lex Informatica: The Formulation of Information Policy Rules through Technology , 76 Tex. L.
Rev. 553 (1997-1998) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/42.
2
Cameron S. D. Brown, Investigating and Prosecuting Cyber Crime: Forensic Dependencies and Barriers to Justice,
International Journal of Cyber Criminology, Vol 9 Issue 1 January – June 2015.
3
For example: Lawrence Lessig, Code and Other Laws of Cyberspace (1999). another opinion in Haim Wismonsky,
CRIMINAL INVESTIGATION IN CYBERSPACE, (2015), 335-336.
4
Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403 (1996).
2
In recent years, we are witnessing the challenges faced by enforcement entities when trying to
enforce the law. These difficulties are the result of simultaneous advances in technologies providing
private actors with abilities which together make enforcement an impossibility:
First is the ability of a virtual actor to choose where he operates from, disregarding political borders
and legal physical confinements. Second is the ability to hide your identity from the government
using either advanced encryption or untraceable proxy based systems. Third is the ability to conduct
a substitute economic system, disregarding the classical government regulated systems, allowing for
actors to get payed and buy products without leaving a trace and without a physical identification of
the participant.
Here are some examples:
Nowadays, Israeli scam artists, working from undisclosed offices in the greater Tel Aviv area, have
been targeting French citizens receiving fraudulent funds without leaving their rooms5. Money is
transferred easily to different places around the world, and cashed without a trace. Victims do not
know where their perpetrator came from, authorities have problems investigating, let alone
enforcing violations conducted outside their jurisdictions, and enforcement is lacking since money
cannot be recovered since it was lost during endless transactions.
Another example is encryption capabilities, which were once the realm of clandestine agencies and
superpowers, and now have become house hold products. These days, any user can choose to
encrypt his or her information in such a way that no one will be able to access unless given the
access key.
First consequence of these house hold super-encryptions, has recently come up in the media, after
the FBI was forced to appeal to a Federal District Court to force Apple Inc. to develop a back door
to an encrypted iPhone it had gathered during an investigation6. The iPhone had belonged to a
terrorist who was no longer alive and suspected to contain valuable information. If in the past, the
use of outsider experts was a rare occasion, it seemed that a simple locked iPhone had become an
insurmountable task for one of the world’s strongest agencies – which eventually had to go to the
private sector for help.
Second consequence is ransomware 7 , which is causing havoc in the business industry. After
inserting ransomware into the target company - the software encrypts all the valuable data rendering
it inaccessible. To open the files, the company must transfer a determined amount within a limited
5
http://www.timesofisrael.com/the-wolves-of-tel-aviv-israels-vast-amoral-binary-options-scam-exposed/
https://assets.documentcloud.org/documents/2714001/SB-Shooter-Order-Compelling-Apple-Asst-iPhone.pdf.
7
Luo, Xin, and Qinyu Liao. "Ransomware: A new cyber hijacking threat to enterprises." Handbook of research on
information security and assurance (2009): 1-6.
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time. In many cases, the victims don’t even bother going to the police, preferring to just pay the
ransom, instead of losing reputation from even acknowledging that they had been compromised.
In the past, money transfer points were a very efficient way to locate someone for either criminal of
civil enforcement purposes. When trying to withdraw funds, local fiscal systems were built to
identify the subject, and would assist relevant parties. Today, using systems such as bitcoin,
criminals are able to conduct transactions without ever needing to actually withdraw local currency
in the old fiscal systems - rendering them undiscoverable.
Bitcoin has become such a rising power, that it has even started to challenge the Chinese economy,
with many of its richest citizens using bitcoin to smuggle assets out of the country. This unregulated
export of funds has caused a political threat to local Chinese policy since it enables the rich and
wealthy to conduct business without the consent government oversight.
These examples are of course only few and testify as to the great difficulties the virtual era has
brought to classical enforcement systems.
Law in the Virtual Era
Academics8 and Judges have commented on the difficulties of the legal system to adapt as quickly
as required9. This has been the case in the verdict regarding gambling in Israel, and also verdicts
regarding searches of emails in the United States. The problem is that most of these rulings and
several legal studies premise that if the law advances quickly enough it can catch up eventually10.
I’m not sure that this is the case.
The problems raised by the virtual era go to the very core concepts of criminal and civil
enforcement. Questions such as the definition of “place” and the ability to conduct activities from
anywhere to anywhere, create not only practical enforcement issues, but also conceptual issues
which make applying old legal doctrines problematic.
For instance, let’s hypothesize an Israeli based web-surfer who conducts a sexually oriented
conversation with a 13 year old boy in the Philippines, asking the young child to expose himself
using his web camera. Since the age of consent in the Philippines is 12 years, the required doublecriminality for international enforcement does not apply and the Philippine government cannot help
in the investigation. Even Israeli enforcers will have troubles enforcing - this anonymous web surfer
did at no time actually possess illegal pedophile material, since it was online viewing and did not
control the data at any point.
Dr. Michal Agmon Gonen, “The Internet As A City of Refuge?! Legal Regularization In Light of the
Technological Possibilities for Circumvention and the Global Nature of the Net [Hebrew]”, Legal Network: Law
and Information Technologies, 207, (Niva Elkin Koren and Michael Birnhak Ed., 2011-5771)
9
For example: 8464/14 State of Israel vs. Nir Ezra, 2015, Microsoft v. United States, No. 14-2985 (2d Cir. 2016).
10
Kerr, Orin S., Searches and Seizures in a Digital World (2005). 119 Harvard Law Review 531 (2005).; GWU Law
School Public Law Research Paper No. 135. Available at SSRN: https://ssrn.com/abstract=697541
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Let’s say that during the pedophile conversation the web surfer decided to record this conversation,
saving it directly in the “cloud”. Does this make the company holding the video file culprit to the
crime? can the boy (or someone on his behalf) sue? The example shows how the virtual era has
created different statuses for having information - the person who owns the physical server, the
person who has digital rights on the data and the person who can access the data technically. All
new concepts.
Basic legal doctrines regarding what is “possession”, what is “use” and even the definition of
“thing”, which are required for the enforcement of rules regarding thievery, illegal possession etc.
are no longer valid. This is not only true for the penal code, but also for administrative law - such
was in a case where the Israeli police could not close an online gambling site, since the courts
decided that letters of the law could not be automatically translated to cyberspace where term such
“site” and ‘close” did not mean the same anymore11.
No Enforcement No Law
Even if all these challenges are met by the legal system, which is very unlikely, no sooner than they
are solved will newer problems arise. This means an ever growing problem of a failing state.
Information can flow without regulation, territorial borders have less meaning, financial institutions
become less relevant and even mass production changes face when people can produce end
products using the ever-advancing home 3D printers.
If laws are not enforceable they lose their meaning. If laws are relevant only in a specific society,
other than that in which all actors conduct their business - then they have no existence. The systems
which are in place and depend on those laws also face danger of becoming obsolete. What will
happen next?
II : Why Not Trust Based Enforcement
As most travelers do, when flying abroad, I often use AirBnB to find suitable & cheap
accommodation. By using AirBnB I rely on private people to provide me with a suitable
accommodation - even though I have not previously met them. I chose to do so, because new
technology has been able to facilitate trust based transactions. After consecutives successes, I trust
this system and the information it provides. I have unified standards with other users all over the
world, and I believe that the site/app will provide me with true data.
Many scholars have noticed 12, that as public trust in traditional institutions winders, people are
moving more towards trust based, decentralized systems, which facilitate direct transactions
11
AAA 3782/12, Tel Aviv-Jaffa District Commander v. Israel Internet Association
Rachel Botsman, The Changing Rules of Trust in the Digital Age, Harvard Business Review, 2015, at:
https://hbr.org/2015/10/the-changing-rules-of-trust-in-the-digital-age.
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between private players. Different applications around the world such as Lyft, Uber for
transportation, Kiva for private loans and many others - are replacing older models of transactions.
As older, less efficient models become difficult to use, they are being replaced by trust based
models built on the idea that reputation and collaboration can provide an efficient substitute for
traditional models.
Online Dispute Resolution (ODR) systems are the first signs of such trust based enforcement
systems, though only in civil disputes, with some claiming that ODR systems are more efficient
than the conventional judicial systems, offering better solutions, quicker and cheaper comparing
civil procedures in court .Nowadays we buy on Ebay, and pay with PayPal to conduct business with
foreign merchants. We trust eBay to get our money back, and trust PayPal that it will guarantee a
safe transaction partially because Ebay has a dispute resolution system which has gained the trust of
both sellers and buyers.
These changes brings up the question if traditional enforcement is declining, whether trust based
systems will come in its place. Will there comes a day when I rely on an ‘Epolice’ app to help me
locate and even punish a person who has done me wrong?
The Implications of Trust Based Enforcement Systems
At this stage, the questions rising from implementation of trust based enforcement systems are very
rudimentary, and I hope will clarify as I deepen my study into this field.
First, I will try and analyze the different arenas of enforcement in which such systems may try and
influence. I will differentiate between apps allowing people to investigate instead of the police from
allowing and apps which will arbitrate in disputes. Another different enforcement arena which I will
try and analyze will be crowd based penal systems, which if unchecked may formalize mob
mentality.
Following the initial analysis I will try and ask what are the constitutional aspects of having trust
based systems in each arena. I will ask when should the state intervene (if it can) and disrupt the
substitution of the state with trust based apps.
I will try and see when trust based systems actually assist in protecting civil liberties and when do
we risk, in the guise of trust-based systems, allowing for the few to control the many who may
become dependent on a specific application.
I will try and ask if it is correct to even theoretically allow an app to conduct searches and seizure,
or even to virtually imprison, or perhaps virtually execute, a private actor. As the study progresses, I
will hope this questions will formalize into more coherent sub questions.
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Goals of the Study:
The first goal of this study will initially try and map the impact the virtual era has on the ability of
enforcement agencies to react to changing technologies. The study will try and see whether the
effects of the virtual era are only pragmatic or are they deeper, and if the effects are only temporary
or are they here to stay.
After mapping the effects of the virtual era, the study will try to see whether law and law
enforcement can accommodate changes in the technological environment thus maintaining efficacy.
If enforcement institution can accommodate, the study will try and see how can this be done, if the
law needs to change and if institutions need to rearrange.
If the effects of the virtual era are too fundamental to be addressed merely by either legal or
institutional adaptations - the main goal of this study will be to see if trust based systems, a business
model which has seen revival in the business sector - are applicable in replacing failing institutions
and legislation.
In this sense, the final goal of the study will be to try and offer trust based enforcement systems as a
viable substitute for traditional law enforcement institutions. This will be done by trying to show
the added value and map where these types of solutions can work and to what extent. This section
of the study is an academic exercise in trying to asses future possible forms of trust based
enforcement systems and how will each form impact existing legal systems and legal norms.
This study has several unique aspects which differentiate it from others:
Most legal studies until now have focused on what is the required legal changes at any given
moment. This study is first to ask if the law can really catch up, and look at the legal questions from
an institutional point of view.
This study is innovative in offering trust based systems as possible substitutes to enforcement
systems. Until now there has been no study to cross between these two different areas.
This study has a potential added value for further insight as the researcher is a forensic computer
specialist with both legal and technological background. Since the research is interdisciplinary in
nature, knowledge in both areas can help solve questions either from a technological point of view
or from the legal one.
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