Journal of Law, Information and Science
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Random Access Memories: Reflections on a Journal
ROGER BROWN[*]
Dr Roger Brown, the foundation editor of the Journal of Law and Information Science (JLIS), as it was originally named, looks back on the Journal’s early history, and forward to its possible future.
The life of the JLIS began in the building of the Law Faculty of the then New South Wales Institute of Technology (NSWIT, now the University of Technology, Sydney (UTS)), a converted department store, on George Street, Sydney in 1981. Apocryphal tales assert that the first (and only) Chairman of the Journal’s editorial board, the Hon Michael Kirby, had his own close connections with that building, having worked there as a shop assistant whilst the department store was in its heyday.
1981 was not only the year of the first issue of JLIS, but also the year when the first IBM PC appeared (the first Apple computer arrived in 1976). Computer equipment available to law faculties was rare or non-existent. The only computer available to the NSWIT Law Faculty staff was located in the Faculty of Business Studies and required a large disk pack the size of a car tyre to be physically loaded before it could be used. Only one faculty’s disk pack could be loaded at any one time. Consequently, questions were frequently asked by Business Studies students (and staff) as to why lawyers and law students should desire access to computers at all. At this stage, the world of computing was still perceived in academia in Australia as ‘number crunching’ and the full potential of Alan Turing’s ‘universal machine’ was far from being realised. In fairness, these questions were also asked by many lawyers who were mostly proud of their scientific ignorance, and determined never to abandon it.
The Journal began as the first step in trying to develop within the NSWIT an institute for the study of computers and law by providing interested authors with a specialist journal in which to publish their works. On study leave I had visited the rather grand premises of the German Institute for Law and Data Processing in Bonn, and the smaller but very congenial offices of the Norwegian Institute for Computers and Law in Oslo. There was little prospect of emulating these well established operations in the short term, but there was hope that the creation of the Journal in Sydney, with an international editorial board, might attract sufficient attention (and funding) to enable an Australian institute to begin in the near future. Sadly, that part of the grand plan never came to fruition, but the Journal itself has endured, with periods of quiescence and a slight change of name, for 30 years.
A secondary purpose of the Journal was to provide a forum in which scholars from Australia could learn about developments in the field of information law from Europe, and other countries outside the USA. This was by no means a dismissive view of American scholarship in the field, but simply a recognition that American specialist journals tended to concentrate on locally sourced material to the exclusion of all else. Whilst it was intended that the Journal would publish in English primarily, I was certainly not averse to publishing in other languages provided an English translation could also be supplied for the benefit of most Australian readers.
The Journal was originally printed in Singapore for financial reasons. It was somewhat amusing to have its content vetted by Singapore censors to ensure that it contained nothing subversive to the Singapore government, or that was otherwise offensive to good taste or public morals, given its somewhat dry and esoteric content. Needless to say there were never any difficulties in that regard. This practice accounts for the inscription ‘MC(P)’ at the head of each Editorial Board page for issues 1 to 3, being the permit number of the Orwellian-titled ‘Ministry of Culture’ in Singapore. I was assured by Professor Bartholomew, formerly Professor of Law at the University of Singapore, that the printers spoke not a word of English, or any other European language. This factor was more of a help than a hindrance, as they could set all European languages as easily as English. In all events, they did an excellent job and delivered on time, something of a rarity in NSW in the 1980s.
The name change has been a matter of some considerable significance. Originally the Journal of Law and Information Science, concerned exclusively with matters that involved elements of both fields of study, it has become the Journal of Law, Information and Science, occupying a much broader field of knowledge. It is also an acknowledgement of the growing number of lawyers who are not just computer literate but more generally scientifically literate, and gone (I hope) are the days when lawyers prided themselves on their ignorance of matters scientific.
As can be seen from the publishing history, development was very sporadic. After issues in 1981, 1982 and 1983 there was a gap until 1986 due to my moving to the University of Tasmania and being rather fully occupied. The fourth issue, Volume 2 No 1 was the first printed by WM Gaunt in the USA, who have printed the Journal ever since.
The difficulties of 1981 had not dissipated by 1988. My attempts at the University of Tasmania to encourage interest in an Information Law Institute or in the Journal received no support from elsewhere in the University. In reality, the Law Faculty itself received little recognition: in one year the Faculty was offered an annual allocation for new books for the Law Library of about $30 and told to seek donations of out-of-date texts from the local legal profession who were, no doubt, still using them! In this parlous state, spending money on the Journal could not really be justified.
Of the original board members, only the Hon Justice Michael Kirby and Professor Jon Bing have remained with the Journal throughout its lifetime. Sadly, Professors Geoffrey Bartholomew and Douglas Whalan are now deceased. I surrendered the role of editor in chief on departing academia in 1988, and had lost touch with the Journal and many Board members until invited to rejoin it for this particular issue.
The early issues had articles from some of the pioneers of Information Law, such as Colin Tapper of All Souls, Oxford. Colin’s book ‘Computer Law’, required reading for anyone interested in the field, was first published in 1978, only three years before the Journal. Jon Bing made many contributions, including a visit from Norway to Tasmania in about 1986, and his work has remained inspirational for anyone interested in the field of Information Law. I think Jon’s public lecture in Hobart totally bemused the audience, but the retention of the Journal by the University of Tasmania’s Faculty of Law suggests that the seeds of interest that were sown by such a notable expert in a developing field of study have borne some fruit there.
Since these early days, both the law and the technology to which it and the Journal relate have changed dramatically.
Those changes have not necessarily been of clear social benefit. The laws relating to information have become extraordinarily complex, to the detriment of all who wish to understand or conscientiously obey them. In many situations, statutes imposing severe criminal penalties are drafted in vague terms that have the potential to penalise perfectly legitimate activities. Powerful national and international lobby groups effectively control the content and application of Australian laws that affect even the quite young, threatening them with dire consequences if they should breach often unrealistic legal norms that are themselves out of touch with the realities of the technology they are supposed to regulate. The logic of trying to retain concepts that stem from the days of tedious hand copying of print media alone is no longer compelling when digital copying, and international distribution, of a work is essentially cost free and uncontrollable. Criminalising these activities is an exercise in random and futile application of increasingly harsh legislation as multinational media companies try to put the genie back in the box.
The apparent absurdity of this activity is exemplified by the attempt to prohibit people from evading or avoiding various copy protection schemes built into digital media. Logically, if the medium is not copy-protected then the data thereon can be copied. If the data are copy-protected, they are still the same data, and copying of them is as much an offence whether they were copy-protected or not. If the copy-protection works, the data cannot be successfully copied, so there is no breach of copyright. If the copy-protection does not work, and the data are successfully copied, the breach of copyright is exactly the same as if the data were not copy-protected. In terms of copyright protection, no purpose is served by criminalising someone who evades the copy-protection unless and until an infringing copy is made. This is reminiscent of the early attempt by media companies to suppress video recorders in CBS Songs Ltd v Amstrad Consumer Electronics Plc.[1] In that case a unanimous House of Lords rejected the attempt by the British Phonographic Industry to make the manufacturers of tape recording equipment somehow responsible for infringing copies made on that equipment.
One notable feature of technology-relevant legislation is that the simpler and more conceptually consistent it is, the easier it is to apply. Australian evidence legislation has been a good example. Francine McNiff’s article in our first issue disclosed the usual Australian scene of differing legislation in almost every jurisdiction trying to deal with perceived issues in the admission of computer-produced material into evidence. Yet the Uniform Evidence Act, now adopted at the Federal level and in NSW, the ACT, Victoria and Tasmania, contains no express reference to computers of any sort, relying only on the conceptually quite general ideas of hearsay, means for proof of the contents of documents (s 48, particularly s 48(1)(d)), business records (s 69) and means of proving them (Chapter 4, Part 4.6, Division 2), and the two very general presumption provisions in ss 146 and 147.
By contrast, Australian laws relating to criminal behaviour involving computers have steadily become more complex and opaque[2] and, as a consequence, are rarely utilised.[3] The same can be said for the Copyright Act 1968 (Cth): BOCSAR statistics show, for example, eight convictions for the summary offence of negligently possessing a device for making an infringing copy of a work (s 132AL(5)) in the four year period January 2007 to December 2010, and four convictions for the indictable offence of possessing a device for making an infringing copy (s 132AL(2)) in the same period. No conviction attracted a sentence higher than a bond under s 20(1)(b) of the Crimes Act 1914 (Cth). This statistical snapshot does not suggest that offences of this nature are particularly prevalent, nor that the actions for which offenders were convicted were perceived as particularly serious by the courts in NSW. Outside the media industry, it seems that there is a growing understanding that a different approach is needed, one that balances the legitimate rights of the producers of entertainment media with the inescapable reality that prohibiting copying in a digital age is an exercise in futility.
First, national boundaries have no meaning in cyberspace. The spreading internationalisation of data storage, particularly with ‘cloud’ data stores being readily available to people anywhere in the world, means that such data stores will be beyond the reach of laws and police agencies that have geographical limitations on their actions. In the fight against child pornography, pornographic material, stored in the cloud and encrypted by any of a growing number of readily available high quality algorithms, is effectively immune from seizure or even from identification. The user can view this material without any enduring storage of it on his or her own equipment, and can delete the material instantaneously from the cloud store without investigators being able to thwart that deletion. The recent success of WikiLeaks in disclosing sensitive government data whilst maintaining the security of its own data stores from the persistent efforts of hugely resourced government agencies is a clear case in point.
Secondly, as encryption improves in quality and is more readily available, those who wish to hide sensitive data find it easier and easier to do so. Governments, for many of which secrecy is an obsession, are the most likely to be doing this on a grand scale, but criminals are making use of encrypted phone and internet communications to plan their activities free from outside scrutiny. Investigating financial fraud is also substantially hampered when transactions are encrypted. Investigative agencies world wide, but particularly in Australia, are not provided with the resources in equipment and skilled personnel that are essential to break through even low levels of data encryption, so that most data-related crimes go undetected and unpunished.
Beyond these obvious generalities, and moving perhaps more into the realm of fiction, the sheer volume of computing power and data storage on the planet will undoubtedly cause huge conceptual changes in the legal structures of our societies. To select one example, they seem likely at some stage to be capable of generating genuine artificial intelligence.
At one end of the fictional AI scale is the rightfully paranoid ‘Skynet’ in the ‘Terminator’ series of films; at the other the tragic character of Robin Williams’ Andrew in ‘Bicentennial Man’, who struggles to be accepted by becoming more human than the humans, ultimately requiring death to prove that he was alive. These themes are everywhere in science fiction. But the legal implications of artificial intelligence are profound. Is turning the AI off equivalent to killing it? Probably not, particularly if you can turn it on again, although turning the AI on again may create a new mind rather than continue the old one. But does intelligence (however that comes to be defined) constitute a necessary and/or sufficient condition for what we somewhat anthropocentrically call ‘human’ rights? Is an intelligent machine entitled to a fair day’s pay for a fair day’s work? Or is a machine always nothing more than a machine, a tool, property, or a slave?
Whilst the factual bases for questions like these are currently properly within the realm of fiction, that does not mean that they should be ignored. Lawyers are generally very conservative, reacting to social change rather than preparing for it. But when issues like this arise, society needs to have the most critical ones planned. If, in the ‘Terminator’ series, Skynet had, at the time of its ‘birth’ and perusal of the sum of human knowledge, discovered that human laws were available to protect its continued existence, its attempt to eliminate mankind might have been avoided. And if Bicentennial Man’s Andrew’s claim to ‘life’ and ‘humanity’ had been acknowledged early in his existence, his individual suffering could also have been avoided.
As science and information become the main guidelines for the development of societies, and therefore for the development of the law, it is increasingly important that lawyers think about the possible futures of their societies, and consider beforehand the shape of the legal systems that those future societies will need. That thinking must not be left until the problems are upon us. The Journal can, and should, be prepared to provide a forum for future speculative legal developments as much as it provides a forum for discussion of the law past and present. Along that path, I think it will have a great future.
[*] BA, LLB (Hons) (ANU), PhD (Cantab), Magistrate of the Local Court of NSW.
[1] [1988] UKHL 15; [1988] 2 All ER 484.
[2] See Lawbook, The Laws of Australia, (at 15 July 2011) 10 Criminal Offences, ‘10.5 Interference with Property’.
[3] NSW Bureau of Crime Statistics (BOCSAR) figures show only five relevant cases dealt with on indictment between July 2002 and June 2009, and 22 dealt with summarily between January 2006 and December 2009, under NSW computer-crime provisions.
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URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/2011/2.html