Debating Internet Law at the Speed of Light: Confounds of Relativity and Incomplete Understanding

The OED says that "confound" is always a verb, never a noun. Given that no one in the history of English has ever done this before, I think you deserve some credit for the invention of this noun, meaning apparently a confusing mixture of complicated components, objects confounded with one another that confound us, or something similar.

Having awarded credit, however, for its invention, I think it's also wise to consider not using it. You don't really need a neologism. Sometimes "uncertainties" and sometimes "circumstances" will do, and it's useful not to employ a single word to mean those two rather different things.

Doesn't the presence of such stuff suggest that many people are trying to have opinions about something they don't understand very well? They haven't been thinking about it for a long time, so that's not surprising. But it isn't happening at lightspeed for those people who've been thinking for forty years or more about what was going to happen, as I've previously pointed out. So maybe you ought to consider in your analysis that the changes are really happening at two different speeds: very rapidly to people who didn't anticipate them, and much more slowly, even predictably, for those who had several decades of head start.

Not necessarily. You didn't earn that conclusion, you just waved your hand in its direction. The missing step is that the differences in outlook somehow determine that there will be no way to achieve a particular concept of freedom using the net. This step is unestablished, and cannot be established in general: of course there are always different values hierarchies in society, and therefore conflicts that parties cannot arbitrate by compromise. But it does not follow that there are no strategies for obtaining one's outcomes "legitimately," despite opposition: that's what politics is actually about. In this particular case, getting to universal service may not involve recognizing "access as a fundamental right," because that's a specialized vocabulary. Showing that universal access is a social necessity for a developed society will not be hard, and will in fact become a fact in the same way that the need for universal telephone service became a fact. Few places needed to make having a telephone a fundamental right in order for everyone to see it was a good idea.

Not given the telephone it wasn't.

But now, given a suddenly digital and paperless society, the legal understanding of the so called right "to be secure in one's papers" is flummoxed by a technological disappearing act. Physical boundaries housing private/personal information have been replaced by imperceptible digits, and so the debate over privacy has morphed into a struggle to elucidate the nature and consequences of essentially phantom breaches of invisible homes. And with such an elusive phantom perpetrator who is constantly evolving and taking on new forms, efforts to describe the common elements of its serial crimes are inclined to resemble the pathetic flailings of Wile E. Coyote.

But it also enabled us to give civil society universal access to strong digital encryption, which if harnessed fully would significantly if not completely balance out the government's ability to pry.

I don't know whether there's any reason to hope for that. I've explained why I think there are forces already in play whose timescale is much shorter than the time it takes to replace present legislators and judges with ones who are technically sophisticated digital natives. That shouldn't necessarily matter: we can make strategy in stages, and that stage (which I actually think of as stage five, when we are just passing out of stage one) doesn't have to be the next one.

In this opinion piece, whose structure I must admit eludes me a little bit even on third reading, I think I am told that the rapidity of change and the presence of multiple viewpoints means that policy must be incoherent, which is confirmed by the inability of law to provide necessary social control, because legislators and judges lack the necessary intimate understanding of the effects of technology on society. This is an entirely tenable position, but the opinion expressed doesn't really provide support for its conclusions, unless cartoon metaphors count as evidence. Which is too bad, because as I say you could be right, and it would be good to have some confidence in your conclusions. I would suggest a couple of arguments you might want to consider.

First, the idea that "technology is executive" could be wrong. This is, indeed, a particularly strong form of technological determinism; most observers would say that technology is not self-defining, and that the effect of technological change on the enclosing social power structures is unpredictable. Though not a technological determinist, I do think one can have some predictive success with respect to the social consequences of technological change, under limited circumstances. That those limited circumstances can exist, relevantly, in the real world is what I have been trying to prove, with fair initial success, over the last twenty years. So I'm not entirely motivated to disagree with you over your determinism; I do think it's a little overstrong. My problem is that I think either you're right or else technology is just as often anti-executive. And because I don't know which is true, any theory that depends entirely on one outcome or the other isn't realistic, from my point of view. So I don't assume that technology will be either for or against autonomy with respect to the state. I work on the basis that technological design can be informed by the attempt to support freedom.

Second, you depend on the hidden premise that law is a strong, if not the strongest, form of social control. It's not. As lawyers, or at least as law students, we have a tendency to overestimate greatly the strength of law, as neophytes at physics overestimate the strength of gravity. Its importance to the way the universe works is more about its amazing an unaccountable weakness than anything else.

So with law, if your real practical business is pursuing social change. And if your concern is the effect of technology on society, technology may be a better form of social control over technology than law. That would change your conclusions somewhat.