Peace Requires Anarchy

A Wiretapping Double Standard: Machines vs. Animals

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I don’t think that Nina Paley meant for this comic to be about wiretapping. However, the very first thing I thought of when I saw it was Ademo Freeman.

Ademo is in jail right now. He was charged with and convicted of three felony counts of wiretapping. What exactly did he do? He called three public officials to ask them about an incident in which school liaison officer Darren Murphy used excessive force against a 17-year-old student.  He recorded his phone calls with the officials without telling them that he was recording them. He then shared the brief conversations with the public out of concern for the lack of accountability in the assault incident by publishing the recordings on YouTube.

Ademo Freeman

So what does this have to do with the Mimi & Eunice comic?

Ademo’s caging is unjust. He had the right to record his conversations with the people he called—even without telling them that he was recording them—yet the State of New Hampshire’s bad laws said that he did not have such a right. While discussing Ademo’s case with friends and strangers I found that many people agreed that it was wrong to imprison Ademo. However, they believed this due to the fact that they did not think jail was a proportional punishment for the crime of recording someone with such positive intentions. In other words, even though they believed it was wrong to imprison Ademo in his case, they still believed that people do not have the right to record other people without first telling them that they are being recorded.

One line of reasoning that I thought of to persuade the friends and strangers I talked to that people actually do have the right to record their conversations with others without notifying them involves pointing out that people have the right to record their conversations with others using their brains without telling them. To put this claim in the context of Ademo’s case, it is clear that Ademo had the right to use his brain to remember what the three public officials said to him. Everyone who I talked to agreed with this view so I thought it was a good starting point for my argument, which I will make again here.

It is also clear that in addition to having the right to use his brain to remember what was said to him, Ademo had the right to share what the officials said to him with others. Note that there may be possible exceptions to this. For example, if one of the officials had said to Ademo, “I will agree to answer your question so long as you agree to never tell anybody what I say, nor write down what I say or make an audio-recording of what I say,” and if Ademo had replied, “Yes, I agree to not record you nor tell anyone what you say,” then it would certainly be arguable that Ademo would not have the right to record the person nor tell others what the person said. However, no such agreement occurred. Here I am only discussing the question of whether people have the right to record what others say to them in regular conversations in which nobody asks to keep certain information confidential.

Proceeding with the argument, even if Ademo had a great memory and focused very hard to make sure that he remembered every word that was said to him in each phone call, we would still all agree that he had the right to remember all of these details and to share all of these details of the conversations with other people. Ademo had the right to remember the tone of each person’s voice and whether they were speaking loudly or quietly, seriously or sarcastically. In short, there is no point at which we would say, “Oh! Ademo didn’t have the right to remember what the official said to him in that much detail.” Nor would we say, “Ademo did not have the right to tell others what the official said to him in that much detail.” Even if he remembered every word that was said verbatim and was a great voice actor and so was able to imitate the manner in which the words were spoken to him, we would still agree that he had every right to tell other people what was said to him in as much detail as he could remember.

Therefore, since it was not a crime for Ademo to record what was said to him using his brain no matter how much detail he recorded and since it would not have been a crime for him to share the information that he had recorded justly with others, then it seems abundantly clear that Ademo also had the right to use his recording machine to make it easier for himself to record the details that he justly could have recorded with his brain. And thus, Ademo also had the right to share the information that he recorded with his machine.

Note again that 100% of the information that he recorded with his recording machine he also could have been recorded using his brain only. Chances are he would have forgotten much of the information if he had relied on his brain only, but it’s not like there’s certain information that it is unjust to record. All of the information is justly-recordable. Therefore, Ademo had the right to use a recording machine as well as his brain to record the information from the conversation. Note that this recording machine could be anything from a piece of paper and a pencil to an elaborate electronic machine with a speaker that picks up air vibrations from sound waves.

The vast majority of people would agree that Ademo had the right to record the public officials with his brain. Further, they would agree that he had the right to share the information that he recorded using his brain with others. People don’t see anything unjust about wiretap copying when copy animals (brains) are doing the copying.

However, for some reason most people believe that Ademo did not have the right to record the public officials with the aid of a non-brain recording machine. Further, they believe that he would not have the right to share the information recorded using the non-brain recording aid. Why? Why do people see wiretap copying as unjust when copy machines are doing the copying but not when copy animals (brains) are doing the copying?

Again, the information that the machine records is the same information that the brain records. The machine just tends to remember the details better, unlike the brain which usually forgets most of the details unless it is focusing very hard. But this difference does not justify the different view of justice, because as was established previously there is no point at which we would say, “Ademo didn’t have the right to remember what the official said to him in that much detail.”

Nina Paley

So anyway, Nina Paley’s Copy Animals comic reminded me of this. I believe that the joke is supposed to be that in the middle frame Mimi is essentially saying, “Isn’t it human nature to copy things as well?” and then Eunice replies, “Of course not!” as if he thought it were bad for people to copy things (as Intellectual “Property” laws suggest). Yet then in the third frame Eunice’s comment quickly changes this interpretation of his meaning and we understand that he is a sane anti-IP cartoon character after all.

For me, however, Eunice’s middle comment reflected the common view in today’s society that recording and sharing information about what people say to you in conversations using copy machines is unjust while his third comment reflected the common view that recording the same information using copy animals (brains) is just. Why the double standard?

While wiretapping laws do not claim to protect so-called intellectual “property” (“protected” by copyright, patent, trademark and trade secret laws), or IP, I have found that my understanding of IP has greatly helped me to determine what rights people have in situations involving alleged rights to privacy and alleged rights to record. For more information on IP and to learn why it is not genuine property, check out QuestionCopyright.org, a website with some great information on the free culture movement—Nina Paley is an Artist in Residence there. I also recommend the Molinari Institute’s Anti-Copyright Resources page and patent attorney Stephan Kinsella’s blog Center for the Study of Innovative Freedom, which contains numerous articles and invaluable resources on IP. The work that is mainly responsible for changing my view to a rejection of the concept of intellectual property is Stephan Kinsella’s monograph Against Intellectual Property. Lastly, Sheldon Richman’s article Patent Nonsense provides a great summary of both the consequentialist and rights-based arguments against intellectual property and thus serves as a good introduction to the subject for people new to the discussion.


UPDATE 07/16/2015: I realize now that my argument above is not complete. The fact that someone allows someone else to mentally-record does not necessarily mean that they also allow them to electronically-record them. I elaborate in a comment below.

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Author: PeaceRequiresAnarchy

“A consistent peace activist must be an anarchist.” – Roderick T. Long

4 thoughts on “A Wiretapping Double Standard: Machines vs. Animals

  1. Pingback: A Wiretapping Double Standard: Machines vs. Animals | Cop Block

  2. I shared the following on two discussion forums here and here in an attempt to learn the reasons why some people believe that Ademo’s caging is justified:

    Liberty activist Ademo Freeman is in jail right now. He was (unjustly) imprisoned for the “crime” of recording his conversations with people without telling those people that he was recording them.

    I wrote a blog post about his story that includes an argument I thought of that makes the case that people have the right to record their conversations with others without notifying them that they are being recorded.

    Here is the blog post: “A Wiretapping Double Standard: Machines vs. Animals”: http://wp.me/p2cdsV-bl

    Do you agree with the argument I present? If not, why not? Thank you for your feedback in advance.

    A quick summary of the argument:

    1. People have the right to record their conversations with others using their brain.

    2. Whether a conversation or piece of information can justly be recorded or not is not dependent on the tool (e.g. brain or electronic recording machine) used to record the conversation/information.

    3. Therefore people also have the right to record their conversations with others with the help of non-brain tools, such as electronic recording machines.

    Also, the argument for the sharing aspect of wiretapping*:

    1. People have the right to share justly-acquired information with others.

    2. Therefore, given the conclusion from the previous argument, people have the right to share information that they have recorded from their conversations with others, both when that information was recording using their brain and when that information was recorded using a recording machine.

    For more information on Ademo Freeman’s caging see: http://www.copblock.org/freeademo/

    * (Note: This is not what Ademo Freeman was convicted of. The State of New Hampshire says that the injustice was that he recorded the conversations, not that he shared the conversations with the public on YouTube. However, I am including this argument here anyway because in my experience people are as likely to believe that the sharing part is unjust as they are to believe that the recording part is unjust. And therefore, this argument is relevant to the question of whether or not it is just to imprison people like Ademo for recording others without notifying them and sharing the recordings with others.)

  3. UPDATE 07/16/2014: While I still believe that Ademo had the right to electronically-record the phone calls without first notifying the police, I no longer believe that my above argument is correct. Specifically, I disagree with the following premise from my comment above:

    “2. Whether a conversation or piece of information can justly be recorded or not is not dependent on the tool (e.g. brain or electronic recording machine) used to record the conversation/information.”

    In some situations it is actually dependent on the tool used.

    For example, a movie theater might say, “you are allowed to watch and record the movie with your brain, but you may not record it with an electronic device.” This is a legitimate rule theaters may set. People who use electronic recording devices to record the movie, in violation of the theater’s rules, may thus owe restitution to the theater.

    A second example, as stated in the article (although I originally overlooked it when writing out the above premise), is “I’ll answer your question for you so long as you agree to not electronically-record me as I answer it.” If the police had said this to Ademo and Ademo had agreed, but then recorded what the police said anyways, I agree that Ademo would have been guilty of a rights-violation. (Note, however, that I would not consider locking Ademo in a cage to be a justified punishment, as it would not be proportional to the crime.)

    In the above two examples people explicitly prohibit recording using electronic devices while still allowing people to record using their brains. One might wonder, are there any situations in which it is presumed that people have the right to record only using their brain and not with electronic devices?

    Yes, I believe such situations do exist. Some people believe that the case of Ademo talking on the phone with the police is such a case (although I disagree–and still wonder why many others don’t disagree, especially given that the police electronically-record the conversations on their end).

    An example of a scenario where I believe this prohibition should be assumed by default is when people have an intimate encounter. Suppose two people are dating. They make love. Later one person finds out that the other person secretly filmed their encounter. Did the person have the right to film it? I would say no. In our society the default assumption is that people don’t want to be filmed in such intimate situations and prohibit others from filming them when able. In other words, it assumed that each person said, “I’ll have this intimate encounter with you on the condition that you don’t electronically-record it,” and that the other person agrees. In order to obtain the right to record, the person must explicitly ask, “May I electronically record you in this intimate encounter we are about to have?”

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