And there are serious issues with the secrecy and oversight elements that I’m going to ignore here. But the fact that they are snooping doesn’t surprise me and, in itself, doesn’t bother me. I see privacy as a dead issue. Like my co-blogger Jon Perry and many other thinkers, I’m concerned that we must fight to allow citizen “sousveillance” and protect due process rather than chasing after technically infeasible privacy.

But there’s a way the NSA debate is like the piracy debate. The problem with a file sharer isn’t that he or she copied, but that the copy was done without permission. The NSA can be characterized as doing the same thing: copying data without permission. In both cases, a fundamental quality of digital technology — frictionless, nonrivalrous copying — enables the behavior. In both cases, the authority to grant permission is the key issue.

A pirate uploads a movie without authorization from the studio; the NSA downloads an email (OK, all the emails) without authorization from the user.

In both cases, the real-world analogues for which we have established law are not adequate. It is not quite correct to say that downloading a file is ‘stealing’ in the traditional sense of that word (whatever the moral equivalents might be, there is a physical difference between stealing something rivalrous and copying something nonrivalrous and it is hardly trivial). It is not quite adequate to say that the fourth amendment protects us from unreasonable ‘search and seizure,’ when one is talking about data. Data can be searched and copied without being seized or stolen in the physical sense of those terms. What protection are we afforded from seizure-less search? What about theft that robs someone only of their product’s artificial scarcity, not of any physical good?

Written by Ted Kupper, IEET published by Jon Perry