Law – Page 49 – a sibilant intake of breath

Mastercard and RFID

I got a replacement Mastercard in the mail today and was slightly surprised to learn that it has an embedded radio frequency identification (RFID) tag in it. The idea is that it will let merchants bill you card by having you put it near a reader, rather than swipe it though a magnetic strip reader. The existence of the RFID tag does raise a couple of issues, however.

First, it has been shown that such tags can be activated using inexpensive directional transmitters from relatively long ranges. The way they work is by using the energy in the incoming radio signal to power the circuitry that produces a response. I don’t know if the tag in my card simply has a unique identifier, or whether it actually performs a challenge-response authentication. Either way, it is likely that the presence of the card, and the fact that it is a Mastercard, can be determined at a distance of several tens of metres at least, using information and equipment fairly easily acquired.

Secondly, I don’t know about the liability associated with such cards. I know that if I lose my Mastercard and report it promptly, I am only liable or $50 at the most. I am not sure about a situation where somebody clones the RFID tag and uses it to make purchases.

Overall, I see little value in contact-free payment systems. I would rather have a traditional card without new features and vulnerabilities. Unfotunately, Mastercard says that RFID-free cards are no longer available.

Fishing should never be subsidized

The economic case for government subsidies can be made in one of two ways. The first is the argument based on externalities: the idea being that one person’s behaviour creates benefits for others, but that those others do not compensate the actor. An example might be a landowner who refrains from cutting down trees uphill from rivers. All river users benefit from the flood control and lack of silt. In this case, it might make sense for the government to pay the landowner to save the trees – in providing the subsidy, the government encourages a more socially optimal behaviour. This justification doesn’t work for fisheries. Fisheries are a common property resource and, as such, tend towards over-exploitation. Having fishers catch more does not provide anyone else with benefits; indeed, it harms the ability of everyone else to use marine resources. Subsidizing fishing pushes fishers to continue catching fish even beyond the point where it would normally be unprofitable, leading to further depletion.

The second argument for subsidies is the ‘infant industries’ argument. The idea here is that it can take a while for a new business to reach the level of existing businesses in the field. A brand new textile industry in an African state may not initially be able to produce goods at a cost and level of quality competitive with existing industries in Asia. In such cases, you can justify a temporary program of subsidy, intended to get the industry running. Once again, this doesn’t apply to fisheries. If anything, there is too much fishing capacity in the states that subsidize heavily (North America, Europe, and Japan). Excess fishing capacity is being exported into developing states, depleting the resources there.

The one form of subsidy that can be justified in relation to the fishing industry is subsidized training to get out of it. We can recognize that fishers are having an increasingly difficult time making a living, while also recognizing that subsidizing their fuel or equipment will just batter fish stocks further. The solution is to help people to transition into other industries where they can sustain themselves without depleting pools of resources common to everyone. It is always hard for politicians to say that an industry should be smaller, or should not exist at all, but, in the case of fisheries, that is probably the only position that makes economic and ecological sense.

Carbon tariffs

It is only a matter of time before the first state imposes an import tariff on goods from countries that are not taking action on climate change. On one level, that is fair enough. If domestic manufacturers are paying for their CO2 emissions through a cap-and-trade scheme or carbon tax, they have some legitimate objections against imports from foreign competitors who are not doing so. That said, the actual experience with the first such tariffs is likely to be a huge legal and political mess.

Membership in the World Trade Organization – something common to most big emitters – carries a number of obligations of varying levels of obscurity and enforcement. You can bet that countries that have such tariffs applied to them will protest such treatment aggressively. It would also be fair to bet that the winner of the contest will be determined on the basis of economic power, rather than the rightness or wrongness of arguments. It is even possible that the resulting compromise will be worse from a greenhouse gas mitigation standpoint than if the argument had never begun.

That said, it is at least logically possible for the global trading system to help in the development of an effective global regime of rules, norms, and decision-making procedures around the issue of climate change. It obviously won’t have an effect on countries that don’t do a lot of trading, but they are probably not the most essential ones to get on board anyhow. What will matter most is which of the two biggest economic blocs will triumph: the United States, still in denial about what solving climate change will require, or Europe, where at least some leading states are starting to get serious.

Patchwork rules and industry strategy

In many states, a disjoint can be seen between action being taken on climate change at the state or provincial level and inaction at the federal level. Some people argue that such approaches are fundamentally inefficient because they increase uncertainty and the cost of compliance. While this is true in a static sense, it ignores an important element of game theory. Generally, the moment at which it becomes possible to effectively regulate an environmental problem is the moment when industry decides that some form of regulation is inevitable. It then switches its attention from lobbying for total inaction to lobbying for the kind of regulatory regime that suits business best: something as large-scale as possible, with long enough time horizons to guide investment decisions.

This is certainly the pattern that was observed with ozone depletion. Industry went from saying: “There’s no problem” to saying: “There’ a bit of a problem, but it would bankrupt us to fix” to realizing that regulation was inevitable, lobbying for a kind that suited them, and developing superior alternatives to CFCs within a year.

As such, it is entirely possible that grumbling about a “patchwork of regional approaches” signals the approach of an inflection point, beyond which effective regulation and large-scale industry and consumer adaptation occurs.

Democracy as constraint

One common view of the nature of democracy is a system wherein a populace seeks to advance the common interest, either through direct participation in decision-making that affects everyone or through the election of representatives to do so. This view posits the existence of a universal interest that is beyond the sum of individual interests; the aim of government is to help to pull the reality of life closer to the kind of life that would be established through the realization of that universal good.

One major problem with this view is the possibility that, with a few exceptions, no such universal interest exists. We have a universal interest in not being exterminated, but it’s not clear that there is any such thing in the realm of social policy. An alternative view of the nature of democracy highlights its procedural characteristics, two of which I consider to be the most important: the division of power and oversight.

Democracy, viewed in this way, is a system of rules designed to limit the collection and arbitrary usage of power by individuals and groups. It recognizes the fundamental difficulty of this struggle, derived from the way in which most people given the opportunity to rule will try to use that power to perpetuate their influence. It likewise recognizes that authority in the absence of oversight leads inevitably to abuse, whether by corrupt politicians, unaccountable police, or an unconstrained army. The most important institutions within a democracy, then, are things like the rule of law, courts, regulatory bodies, a free press, and elections. The last of these serve less to select a group of representatives who have the right ideas about the universal good and more to rotate people often enough that they cannot escape the shackles that democracy is meant to impose upon them. When rulers do wriggle out of those bonds, the results are corruption, incompetence, and tyranny.

A procedural view of democracy does not assume the existence of a universal good – it just acknowledges that people have life projects of their own and, unconstrained, most are happy to trample all over the plans of others. The basic idea derives from the expression: “My right to swing my fist ends where your nose begins.” Unfortunately, plenty of people are happy to swing regardless. Only by constraining individuals in some ways – especially those in positions of power – can we have any hope of living our lives unmolested.

What, then, of social programs and all the efforts government makes to cajole and convince the populace of things? It is certainly possible that such cajoling can serve worthwhile ends, such as making people aware of previously unknown dangers. It can also serve far less universal ends: the promotion of the interests of one group through a devious appeal to a universal good. Arguably, much of politics is jostling between groups with narrow interests, seeking both to gain access to power and represent their personal interests as universal. This is exactly the kind of conduct a procedural democracy is meant to check: marrying empowerment within the sphere of individual agency with constraint in realms of inappropriate interference.

I am not willing to wholly disregard the possibility that democracies can develop projects based on the universal good, and perhaps even carry them out more effectively than other systems of government. What I am arguing is that such endeavours are a potentially valuable benefit of democracy, rather than its foundational justification. The aim is less to achieve the ‘best’ – a mode of thinking perhaps best suited to fascist states – but to moderate and avoid the worst. As such, when we abandon the principles of oversight and divided power, whether out of ambition or fear, we sacrifice a critical aspect of what it means to live in a democratic society.

An idea for reducing electoral fraud

When it comes to elections, there are a number of different kinds of attacks against the voting process that should concern us. Excluding things like bribing and threatening voters, we need to worry about votes not getting counted, votes getting changed, and votes being inappropriately added. In the first case, an unpopular government may remove opposition supporting ballots from ballot boxes in marginal constituencies. In the second, they might alter or replace ballots, converting opposition votes to government ones. In the third, they might simply add more ballots that support the government.

A relatively simple measure could protect against the first two possible attacks. When a person votes, they could be given a random string of characters. One copy would get printed on their ballot, another would be theirs to keep. Then, once the ballots had been tabulated, a list could be posted on the internet. Sorted by electoral district, it would list the various options people could have chosen, the total number of people who chose each, and a list of the random strings that each person brought home. The importance of the random string is that it preserves the integrity of the secret ballot. Because each string is generated using a random number generator, no string can be tied to an individual. Only the copy given to the voter allows them to check that their vote was properly counted.

Under this system, if I voted for Candidate A and got the string “GHYDMLKNDLHFL,” I could check the list under Candidate A on the website and ensure that my vote was counted for the right person. If my vote hadn’t been counted, my string wouldn’t be anywhere on the list. If it had been miscounted, it would appear in the wrong place. People who found themselves in that situation could complain to the electoral authority, the media, and foreign observers.

The system remains vulnerable to an attacker adding new ballots in support of their candidate, but only to a certain degree. Provided there are some independent observers watching the polling station, the approximate number of people who voted can be pretty easily determined. If the number of votes listed on the website is well in excess of that number, it can be concluded that fraud has occurred.

None of this is any good against a government truly committed to rigging an election; they will always be able to brush off complaints from foreigners and the media, and they will rig the electoral authority. At the same time, it would make rigging more difficult and increase public confidence in the electoral system in any state that implements it. Being able to see your vote listed in the appropriate place may also make elections feel more concrete and personal.

The system does create some new risks. Attackers might force voters to share their random string. If they did so, they could determine who an individual voted for: a worrisome prospect in situations where people could be threatened to vote in one way or another. Likewise, having confirmation that a vote went one way or the other could make vote-selling a bigger problem. With a standard ballot, there is no way to know whether a paid voter actually voted the way they were paid to vote. These additional risks should be borne in mind in the context of any particular election or state. In some cases, they could make the dangers of this approach outweigh its benefits. In most places, however, I suspect it would be beneficial and relatively inexpensive.

Some previous posts on electoral security:

Conditional support for our troops

Walking through the Rideau Centre yesterday, I came upon a cart selling t-shirts with various slogans on them. Beside the silly Che Guevara stuff was one shirt that caught my attention. In white letters on a red background it said “Support our Troops.” Under that were both a maple leaf and the flag of the United Nations.

It struck me as admirably post-nationalistic. We recognize the sacrifices made by members of the armed forces, but also that their conduct needs to be bounded by international law. While the sentiment is admirable, it sits uncomfortably with the reality of how ignorant most Canadians seem to be about what we are doing in Afghanistan. People really think we are mostly building bridges and distributing big bags of rice. The reality of the all-out war in which we are committed is very different.

That is not necessarily to say that we shouldn’t be fighting the Taliban along with our NATO allies; it is simply to highlight that Canadian governments manipulate the perception of Canada as a ‘peacekeeping nation’ to keep people from looking too closely at what our armed forces really do. The degree to which many people seem happy to continue to believe in the peacekeeping myth just because it makes them feel good is also problematic.

Defending bike lanes over the web

MyBikeLane is an interesting concept in distributed social law enforcement. The idea is that people take photos of cars parked in bike lanes and then upload those to the site along with details on when and where the incident occurred. Since they can be sorted by license plate, the worst offenders can be easily identified. New York has by far the most active community, followed by Toronto.

Since I carry a digital camera at all times anyhow, I will keep my eyes peeled for possible contributions once I resume biking. For now, my small hybrid tires and the recollection of my nasty Halloween fall are keeping my bike in the basement.

I learned about the site from this interesting blog.

Rejecting Canada’s new copyright act

As a student, I was constantly being called upon to support various causes, through means ranging from making donations to attending rallies. Usually, such activities have a very indirect effect; sometimes, they cannot be reasonably expected to have any effect at all. Not so, recent protest activities around Canada’s new copyright act: a draconian piece of legislation that would have criminalized all sorts of things that people have legitimate rights to do, such as copying a CD they own onto an iPod they own.

Defending the fair use of intellectual property has become a rallying point for those who don’t want to see the best fruits of the information revolution destroyed by corporate greed or ham-fisted lawmaking in the vein of the much-derided American Digital Millennium Copyright Act. At their most controversial, such acts criminalize even talking about ways to circumvent copyright-enforcement technology, even when such technology is being mistakenly applied to non-copyrighted sources: such as those covered by the excellent Creative Commons initiative or those where fair use is permissive for consumers. Watching a DVD you own using a non-approved operating system (like Linux) could become a criminal offence.

For now, the protests seem to have been successful. Of course, the temptation for anyone trying to pass a controversial law is to hold off until attention dissipates, then pass it when relatively few people are watching. Hopefully, that will not prove the ultimate consequence of this welcome tactical victory for consumer rights.

Bali talks beginning

Starting tomorrow morning, there will be twelve days of talks in Bali, Indonesia intended to begin the process of drafting a replacement for the Kyoto Protocol, when the period it covers ends in 2012. This particular meeting is mostly about choosing the structure for the real negotiations. Three possibilities are likely:

The parties agree to extend the Kyoto Protocol, keeping in place many of its institutional structures
The parties decide to create a whole new instrument
The talks collapse in acrimony, with no agreement

Which of these takes place will largely depend on the stances adopted by the great powers and major emitters, especially the United States, Russia, China, Japan, Brazil, and the European Union.

Some questions of succession hang over the proceedings. The new Rudd government in Australia has only been in power for a week, and may not have a well developed negotiating position. More importantly, everyone knows the Bush administration will soon be out of power. Leading Congressional Democrats are attending the summit themselves. It remains to be seen what effect that will have.