An interesting aspect of this, especially their blog post (https://malus.sh/blog.html ), is that it acknowledges a strain in our legal system I've been observing for decades, but don't think the legal system or people in general have dealt with, which is that generally costs matter.

A favorite example of mine is speed limits. There is a difference between "putting up a sign that says 55 mph and walking away", "putting up a sign that says 55 mph and occasionally enforcing it with expensive humans when they get around to it", and "putting up a sign that says 55 mph and rigidly enforcing it to the exact mph through a robot". Nominally, the law is "don't go faster than 55 mph". Realistically, those are three completely different policies in every way that matters.

We are all making a continual and ongoing grave error thinking that taking what were previously de jure policies that were de facto quite different in the real world, and thoughtlessly "upgrading" the de jure policies directly into de facto policies without realizing that that is in fact a huge change in policy. One that nobody voted for, one that no regulator even really thought about, one that we are just thoughtlessly putting into place because "well, the law is, 55 mph" without realizing that, no, in fact that never was the law before. That's what the law said, not what it was. In the past those could never really be the same thing. Now, more and more, they can.

This is a big change!

Cost of enforcement matters. The exact same nominal law that is very costly to enforce has completely different costs and benefits then that same law becoming all but free to rigidly enforce.

And without very many people consciously realizing it, we have centuries of laws that were written with the subconscious realization that enforcement is difficult and expensive, and that the discretion of that enforcement is part of the power of the government. Blindly translating those centuries of laws into rigid, free enforcement is a terrible idea for everyone.

Yet we still have almost no recognition that that is an issue. This could, perhaps surprisingly, be one of the first places we directly grapple with this in a legal case someday soon, that the legality of something may be at least partially influenced by the expense of the operation.

We should welcome more precise law enforcement. Imperfect enforcement is too easy for law enforcement officers to turn into selective enforcement. By choosing who to go after, law enforcement gets the unearned power to change the law however they want, enforcing unwritten rules of their choosing. Having law enforcement make the laws is bad.

The big caveat, though, is that when enforcement becomes more accurate, the rules and penalties need to change. As you point out, a rigidly enforced law is very different from one that is less rigorously enforced. You are right that there is very little recognition of this. The law is difficult to change by design, but it may soon have to change faster than it has in the past, and it's not clear how or if that can happen. Historically, it seems like the only way rapid governmental change happens is by violent revolution, and I would rather not live in a time of violent revolution...

Dean Ball made this exact point on the Ezra Klein show a few days ago. I always thought laws would get more just with perfect enforcement -- the people passing mandatory sentencing laws for minor drug offenses would think twice if their own children, and not just minorities and unfavourable groups, were subject to the same consequences (instead of rehab or community service).

But if I've learned anything in 20 years of software eng, it's that migration plans matter. The perfect system is irrelevant if you can't figure out how to transition to it. AI is dangling a beautiful future in front of us, but the transition looks... Very challenging

This has also been a common theme in recent decades with respect to privacy.

In the US, the police do not generally need a warrant to tail you as you go around town, but it is phenomenally expensive and difficult to do so. Cellphone location records, despite largely providing the same information, do require warrants because it provides extremely cheap, scalable tracking of anyone. In other words, we allow the government to acquire certain information through difficult means in hopes that it forces them to be very selective about how they use it. When the costs changed, what was allowed also had to change.

> Cost of enforcement matters. The exact same nominal law that is very costly to enforce has completely different costs and benefits then that same law becoming all but free to rigidly enforce.

Hey, I really like this framing. This is a topic that I've thought about from a different perspective.

We have all kinds of 18th and 19th century legal precedents about search, subpoenas, plain sight, surveillance in public spaces, etc... that really took for granted that police effort was limited and that enforcement would be imperfect.

But they break down when you read all the license plates, or you can subpoena anyone's email, or... whatever.

Making the laws rigid and having perfect enforcement has a cost-- but just the baseline cost to privacy and the squashing of innocent transgression is a cost.

(A counterpoint: a lot of selective law enforcement came down to whether you were unpopular or unprivileged in some way... cheaper and automated enforcement may take some of these effects away and make things more fair. Discretion in enforcement can lead to both more and less just outcomes).

There was this scholarly article from Pamela Samuelson and Suzanne Scotchmer

https://yalelawjournal.org/pdf/200_ay258cck.pdf

which, as I recall it, suggested that the copyright law effectively considered that it was good that there was a way around copyright (with reverse engineering and clean-room implementation), and also good that the way around copyright required some investment in its own right, rather than being free, easy, and automatic.

I think Samuelson and Scotchmer thought that, as you say, costs matter, and that the legal system was recognizing this, but in a kind of indirect way, not overtly.

Yup :P

As in their post:

"The future of software is not open. It is not closed. It is liberated, freed from the constraints of licenses written for a world in which reproduction required effort, maintained by a generation of developers who believed that sharing code was its own reward and have been comprehensively proven right about the sharing and wrong about the reward."

This applies to open-source but also very well to proprietary software too ;) Reversing your competitors' software has never been easier!

I think this distinction also gets at some issue with things like privacy and facial recognition.

There’s the old approach of hanging a wanted poster and asking people to “call us if you see this guy”. Then there’s the new approach matching faces in a comprehensive database and camera networks.

The later is just the perfect, efficient implementation of the former. But it’s… different somehow.

The issue with strictly enforcing the speed limit on roads is that sometimes, people must speed. They must break the law. Wife giving birth, rushing a wounded person to the ER, speeding to avoid a collision, etc.

If we wanted to strictly enforce speed limits, we would put governors on engines. However, doing that would cause a lot of harm to normal people. That's why we don't do it.

Stop and think about what it means to be human. We use judgement and decide when we must break the laws. And that is OK and indeed... expected.

The answer to this is just changing the law as enforcement becomes different, instead of leaning on the rule of a few people to determine what the appropriate level of enforcement is.

To do this, though, you're going to have to get rid of veto points! A bit hard in our disastrously constitutional system.

> We are all making a continual and ongoing grave error

> Blindly translating those centuries of laws into rigid, free enforcement is a terrible idea for everyone.

I understand your point that changing the enforcement changes how the law is "felt" even though on the paper the law has not changed. And I think it makes sense to review and potentially revise the laws when enforcement methods change. But in the specific case of the 55 mph limit, would the consequences really be grave and terrible if the enforcement was enforced by a robot, but the law remained the same?

Not exactly the same but at least in Spain, the cost of constructing a new building subject to all the regulations makes them completely unafforfable for low salaries.

(There are other problems, I know, but the regulations are crazy).

Absolutely! We're not all making that error, I've been venting about it for years.

"Costs matter" is one way to say it, probably a lot easier to digest and more popular than the "Quantity has a quality all it's own" quote I've been using, which is generally attributed to Stalin which is a little bit of a problem.

But it's absolutely true! Flock ALPRs are equivalent to a police officer with binoculars and a post-it for a wanted vehicle's make, model, and license plate, except we can put hundreds of them on the major intersections throughout a city 24/7 for $20k instead of multiplying the police budget by 20x.

A warrant to gather gigabytes of data from an ISP or email provider is equivalent to a literal wiretap and tape recorder on a suspect's phone line, except the former costs pennies to implement and the later requires a human to actually move wires and then listen for the duration.

Speed cameras are another excellent example.

Technology that changes the cost of enforcement changes the character of the law. I don't think that no one realizes this. I think many in office, many implementing the changes, and many supporting or voting for those groups are acutely aware and greedy for the increased authoritarian control but blind to the human rights harms they're causing.

De jure, there is no difference between de facto and de jure. De facto there is.