The Universe of Discourse

Thu, 12 Dec 2013

Conspiracy theories about Cory Doctorow
Recently I received (via William Gibson) a tweet from Cory Doctorow suggesting that I sign this petition: Reform ECPA: Tell the Government to Get a Warrant. The claim the petition makes is that under the Electronic Communications Privay Act of 1986,

the IRS and hundreds of other agencies can read our communications without a warrant.
I don't know if this is actually true, but it is certainly plausible; government agencies will interpret the law in whatever way is most convenient for them. In any case let's stipulate that this is correct.

The petition web site was put up by the Obama administration, with the promise that any petition that accumulated 100,000 signatures would receive a response. Not a decisive action, or even a substantive response, but a response. Even this very low bar has not always been met. But let's also stipulate that preparing and signing such a petition has some value, at least in making the Executive respond to a demand by a largish group of voters.

Here is the specific action called for by this petition:

We call on the Obama Administration to support ECPA reform and to reject any special rules that would force online service providers to disclose our email without a warrant.
This is an extraordinarily weak demand, even by the already weak standards in play here.

If the main concern is that the IRS is demanding and receiving stored email, under the outdated provisions of the ECPA, there is a quick solution. The IRS is part of the Department of the Treasury, which is under the direct control of the President and his appointee the Secretary of the Treasury. The internal regulations of the IRS are written by the Secretary, by treasury officials they appoint, or by civil service bureaucrats who answer to the Secretary and the President. As long as those regulations don't conflict with an act of Congress, they're the law.

Obama could order the Secretary of the Treasury to write new IRS regulations requiring the IRS to seek and obtain a warrant or other judicial declaration before demanding taxpayer emails from third parties. He could even order this directly: “Executive order 9991: The Internal Revenue Service shall not demand, from third parties, the disclosure of taxpayer emails, except without first obtaining, blah blah blah…” It could be done tomorrow—problem solved.

But the petition doesn't call on Obama or the Treasury department to do this. In fact it doesn't call on them to actually do anything, except to “support” some (unspecified!) “reform”. Does this make sense? If the IRS is doing something you don't like, and you're going to take time to petition the Executive about it, and the IRS is part of the Executive, shouldn't your petition at least include a request that the IRS stop doing the thing you don't like?

So what to think when one sees a petition like this that could so obviously call for an immediate and substantive improvement, and doesn't even do that?

The null hypothesis to explain this is that the guy who wrote up the petition is just some doofus who doesn't know what he's doing. There are a lot of those around. Suppose 17 people wrote up petitions to address this problem; two of them are actually any good; but the one that happened to get viral traction on the Internet is not one of those two.

An alternative hypothesis is the conspiracy theory: the IRS, or the Executive, promoted or even created this particular petition to draw off energy and attention from the two that might actually result in something happening. I'm not sure this is worth considering. As Pierre Simon Laplace said, when asked why he didn't consider such a possibility in a similar situation, “I had no need of that hypothesis.”

A variation on this question asks why Cory Doctorow, who one might suppose would know better, is promoting this petition. Here, the null hypothesis is that Doctorow is also some doofus who doesn't know what he's doing. The conspiracy theory version is somewhat more interesting.

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