(In this post, I make many assertions which may or may not be correct according to the strict letter of the law or history – I am neither a lawyer nor a historian. However, I believe what I’m saying is true based on observation and in actual effect.)
Over the past few months I’ve had something on my mind that I think is *critical* to our nation and our community: “the applicability of our second amendment to cybersecurity and the need to protect our associated rights”.
My initial thought process was kicked-off by recent community churn around topics such as….
- Foreign repressive regimes and the use of cybersecurity and hacking tools to protect speech, and those governments’ physical response
- The increasing role of dDos tools in interrupting actual business operations
- Cyber War
- Hacking Back
- The roles and responsibility conflict between government, industry, and citizens for cyber security
…in combination with recent mass shootings, the subsequent push for gun control, and the resulting increased debates around the second amendment.
I’ve been forced to ask myself “Wait, cyber tools are *clearly* weapons too. What are the implications of the intersection between “gun control” and “cyber security?”
After a lot of thought, I’ve come to the conclusion that the implications are *many* and timely. However, even so, I’ve had several discussions with people I trust about my feelings here and I didn’t generally get much traction on the subject.
Now, though, with the recent NSA news alongside an announcement that some air force tools are being classified as “weapons”, the topic has come up again – specifically in the form of a tweet from @Jack Daniel:
The Second Amendment should apply to cyber arms, for the same reasons it protects guns.
I started this blog post a couple of weeks ago but didn’t finish it. Given JD’s tweet and recent events, it’s time to finish it:
APPLICABILITY OF SECOND AMENDMENT TO CYBER SECURITY?
The Second Amendment says arms, not guns. Look up “arms” and the definition is basically “weapons”. The two pertinent definitions of weapons are “A means used to defend against or defeat another.” and “An instrument of attack or defense in combat”. Hmm. I don’t know what the legal definitions are, but I would have to be trying *really* hard to *not* classify some cyber security tools as weapons using these definitions. So let’s substitute words:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear CYBER SECURITY TOOLS, shall not be infringed.”
(As an aside, is Anonymous a militia? Obviously not a well-regulated one, but as we go down this path, what IS a militia? It should be answered)
SECOND AMENDMENT ROLE – OPINION
First, my opinion is that the entire Bill of Rights, taken together, creates the necessary liberties for a free state to operate effectively. They are not arbitrary rights declared to make us feel better. Instead, they allow us as citizens to operate our government – which *is* a machine in that it’s a system with discrete inputs, outputs, rules, interfaces, and behaviors – most effectively. The government should not operate itself – it’s not designed to and will eventually, as a machine, devolve into chaos if it’s left to operate itself. We, the people, operate it and we must have certain freedoms to do so. If you do not believe this, please talk to me offline – the entire treatment of my opinion on this is too long for this post.
Given that, in my opinion one of the “roles in effect” of the second amendment is to protect the other amendments and the first in particular. The idea that citizens – the people – are in charge of the government rapidly becomes a fiction if they do not have the right to defend those rights – specifically defending the idea of a government “by for and of the people”. In other words, the second amendment codifies the idea that we are the nexus of power in the U.S., not our government. Whether or not times have changed enough that this is no longer true in effect when it comes to “guns”, the point has not changed and our move to a significantly online culture has given the meaning a completely new but valid context.
Without this principle – that individuals are the source of government power – and the ability to back it up, the people in a “democractic” society become, over time, subject to the benevolence of those they vote into office… This is a factual statement and has nothing to do with the intent of those voted in.
Further, over time the benevolence, not being enforced by any real rules, becomes one of circumstantial convention, subject to change depending on the external environment. This is where the U.S. government (ie, “us” through our voting habits) seems to be going.
We see more and more, particularly in the recent news, that the U.S. government is deciding what to do, but not asking us directly.
Maybe what’s going on lately is legal, but there are real questions as to whether
- These changes meet the spirit and intent of the bill of rights or if they’re only legal by technicality
- These changes erode the self-supporting structure of rights that keeps our society legally – vs. only benevolently – free.
Perhaps, in the end, we do need to live with a less freedom, but I think that at the very least, we, the people, should be invited to participate in a discussion on matters of such weight instead of simply being told “it’s for our own good”.
CYBER SECURITY TOOLS IN PARTICULAR
This brings me to my core assertion: As we move to an online culture, the 2nd amendment is as important or more than it has ever been to our way of life.
Why? Well, in terms of “guns”, many have rightfully pointed out that armed conflict with the U.S. government is neither legal, nor needed, nor desired, nor even practical. I obviously agree. I am no revolutionary.
The framers of the constitution made freedom of speech the first amendment – not the 2nd, 5th, or 10th. Why? Because all of the others depend on it. Look around the world. What happens first in repressive dictatorial regimes? Speech is restricted. Why? By restricting freedom to speak and freedom to assemble, those governments deal significant blows to their people’s ability to be a coherent force for any kind of change – whether peaceful or otherwise. Even here, any politician or marketing expert will tell you – control the message.
Let’s ask ourselves some questions:
- In today’s world, where do we communicate? Online.
- If we lose our freedom to communicate, where will it be restricted? Online.
- How do we protect our ability to communicate freely online? Encryption & Other Security Tools
- Is the government creating backdoors and collecting massive communications of everyone in the country online? Yes
- Have they asked us? No.
- Have they asked to backdoor encryption? Yes
- Has the government tried to argue that in some cases, encryption may constitute munitions? Yes
- Have other cyber tools been classified arms? Apparently, yes. (See Jack Daniels’ post)
- Is there the widespread (if not universal) belief that “arms” is a general right of “the people” assigned to organized government-run militias and not individuals and so can be controlled? Yes
- Has the government, the media, and industry been talking up cyber war? Yes
- Have Anonymous and other organizations within the U.S. created an environment of conflict online within the U.S.? Yes
Seriously, do I need to ask more questions or spell out what the answers mean together? It doesn’t take a rocket scientist, a crazy right wing nutcase, or a naive college progressive to see where this is going.
In my opinion, if you are in cyber security, if you are a hacker, or if you are a communicator, you are one of a small cadre of people who can see what’s going on and intelligently respond – through education, campaigning, or finding other peaceful ways to assure that our ability to communicate online safely and securely is not taken away passively through our own inaction.
If we are unhappy with the way the world looks in 10 years, it will be our own fault.