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“Code is law” Once More

In a post earlier this year on the foreclosure crisis and In Re Jones ("'Code is law.' Literally," 2012-04-10), besides taking a swipe in passing at Larry Lessig, I suggested there are two possible ways to look the foreclosure crisis:

  1. As a law enforcement problem, where banksters have committed illegal acts; 
  2. and as a jurisprudence problem, where the oligarchs who own proprietary software systems have changed the nature of law itself: Code is law, not metaphorically, but literally. 

In the latter case, what we understood the law to have been, in Civics 101, is then rewritten or crippled to conform to the code. Statutes, rules, regulations become vestigial. Code is the driver. (I can't think another word for this than "revolutionary." ... That's a rather unpleasant notion.

As we shall see; two events in the last week or so suggest that, indeed, reality may be behind door #2.

First, Alex from Marginal Revolution gives this example:

On Sunday, a livestream of the Hugo Awards — the sci-fi and fantasy version of the Oscars — was blocked on Ustream, moments before Neil Gaiman’s highly anticipated acceptance speech. Apparently, Ustream’s service detected that the awards were showing copyrighted film clips, and had no way to know that the awards ceremony had gotten permission to use them.

…As live streaming video surges in popularity, so are copyright “bots” — automated systems that match content against a database of reference files of copyrighted material. These systems can block streaming video in real time, while it is still being broadcast, leading to potentially worrying implications for freedom of speech.

The first commenter remarks:

Surely there needs to be some penalty for falsely asserting ownership on one’s own or someone else’s behalf. Right now, any rational organization will accept large numbers of false positives.

Yes, in the world of Civics 101. But we might not live in that world any more. Rather than rewrite the code to conform to antique notions of ownership or justice -- which, in all fairness, are trivial set beside a requirement to enforce compliance with an extremely lucrative system of rental extraction -- why not revise the law to allow the false positives that coding almost invariably* creates? After all, Obama’s mortage “settlement” allows a certain percentage of illegal title transfers, so why shouldn't false positives from a copyright bot be perfectly acceptable? I predict there will never be such penalties as the commenter described (and boy, would I be happy to be wrong).

Here's what could be a second example, from Good Morning America, of all places:

Alvin and Pat Tjosaas, a retired couple in Woodland Hills, Calif., had the bad luck of having their home mistaken for a neighboring foreclosed home and being cleared by contractors hired by Wells Fargo -- not once but twice.

But on June 1, a neighbor in Twentynine Palms called the Tjosaas family, asking if they had authorized people to clear out their home.

"We assumed it was a break-in and, really, it was a break-in," Tjosaas said. "They weren't legally supposed to be there."

Tom Goyda, vice president of corporate communications for Wells Fargo Home Mortgage, told ABC News the company had foreclosed appropriately on another property near the Tjosaas house and the error was made when a contractor mistakenly went to the Tjosaas house instead of the correct house.

The Tjosaas home had actually never had a mortgage or lien on it because it was paid for in cash as it was being built about 50 years ago.

"We are deeply sorry for the very personal [oh, how very smarmy**] losses the Tjosaas family suffered as a result of their home being mistakenly secured and entered by a contractor hired to address a different nearby property," the company said in a statement. "We moved quickly*** [after the story appeared on TV] and have been in contact with the Tjosaas family to resolve this unfortunate situation and right this wrong."

Oh, ha ha ha. If a meth freak metal thief had broken into the Tjosaas house and got caught loading the pipes into his truck, you can bet that "resolving this unfortunate situation" and "righting this wrong" would be operationally defined by jail time. But n-o-o-o-o! And now, the comedy begins. Groundhog Day!

[O]ver Labor Day weekend, Alvin Tjosaas went to check on the home and saw that it had been broken into and "vandalized" again.

"They had taken things like propane tanks, tires, rims that belonged to vintage cars, and put them on the lawn," his wife said.

The Tjosaases later learned Wells Fargo had hired another contractor who made the same mistake as the first.

So how'd this happen?

[Pat Tjosaas] later learned the contractors had used a satellite photo and an address given to them by Wells Fargo.

"They simply were at the wrong location," she said, "not even on our road."

Speculating freely: Even Wells Fargo doesn't keep its records in a shoebox; they keep their records in a database. It looks like Wells Fargo entered (or purchased) bad data. The database had the wrong address, and/or software derived the wrong GPS coordinates from the database address, and/or the satellite photo mapped good data to the wrong house (the Google map of my home town puts a restaurant about a hundred yards from where it should be, raising issues rather like the circular error probable for a nuclear strike). Moreover -- you know how hard it is to change anything once it's "in the computer"? -- Wells Fargo also has a horrible quality assurance problem: Either the contractor wasn't tasked with reporting incorrect addresses back to Wells Fargo and/or Wells Fargo didn't flag the bad data in the database, and re-used it.

Atrios comments:

Nobody has any concern about prosecutions. The article [on the Tjosaases] doesn't even raise the possibility.

The frist commenter:

Remember the rule of law?

Well, if we accept that "code is law," then false positives from corporate computer systems are legal, just as they are in the copyright case above. Again, I'd argue that we don't have a law enforcement issue, but a jurisprudential issue; the nature of law, and hence rule, has changed, as part of a larger change in the constitutional order that is still underway. If I am right, there will be no prosecutions. If a civil suit is brought, the records will be sealed and the Tjosaases put under non-disclosure, especially to the press.

NOTE * "Program testing can be used to show the presence of bugs, but never to show their absence!" --Edsger W. Dijkstra

NOTE ** Not only smarmy, utter bullsh*t:

The bank allegedly threatened foreclosure on a dying cancer patient in July, after her medical bills made it almost impossible for her to meet her mortgage payments. In addition, one California foreclosure victim committed suicide in the midst of a legal battle with Wells Fargo in May.

NOTE *** Odd that a creature which travels, slug-like, on a trail of slime can "move quickly," but then they've had a lot of practice:

There are more than 50 homeowner lawsuits alleging contractors -- hired by big banks to protect abandoned properties from getting damaged -- sometimes wreak havoc on still-occupied properties, according to HuffPost analysis.

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