How Would the “Nth Room” Case Be Handled in a Free Society?

Because this article deals with an issue that is currently the subject of major social controversy, I would first like to make several points clear before beginning.

1. I have not received professional academic training, and I am not a specialist in the Austrian School or any other field. In other words, although this article borrows the logic of the Austrian School, it may be difficult to regard it as a clearly Austrian School position, and any misunderstandings or errors arising from that are my responsibility.

2. This article seeks to rely on several concepts presented in Austrian School works of political philosophy, such as Stephan Kinsella’s *Against Intellectual Property*, Walter Block’s *The Crime of Blackmail: A Libertarian Critique*, and Murray N. Rothbard’s *The Ethics of Liberty*. Therefore, quite apart from whether this article is consistently constructed on that foundation, those who do not agree with the Austrian School are also likely not to agree with it.

3. The “free society” referred to in this article means the “anarcho-capitalist” society described by the Austrian School.

The Nth Room case was, fundamentally, “a case in which nude photos and videos containing sexual acts were extracted from dozens of women through blackmail, and then distributed or sold to users estimated to number over 30,000 through Telegram.” Even from that sentence alone, one can immediately grasp how profoundly vicious this case was. Many people are demanding extremely severe punishment for the ringleaders. But while every crime is vicious, not every vice is a crime. For example, the viciousness of murder is beyond words. But making and breaking a promise to a friend may be vicious without being easy to classify as a crime. The distinction between morally wrong vice and crime requiring legal punishment was something strongly emphasized by Murray N. Rothbard, the de facto founder of Austrian School political philosophy.

To summarize at the outset, I believe the Nth Room case can be understood as a mixture of very serious felonies and, regrettably, elements that cannot be regarded as crimes.

As I understand it, the ringleaders in the Nth Room case engaged in three types of conduct. First, they hacked the accounts of women who had posted nude photos of themselves on social media, identified their personal information, and then threatened to distribute it unless the women sent the pornographic videos the perpetrators wanted. Second, they approached prostitutes or women seeking prostitution, identified their personal information, and then blackmailed them on that basis to obtain pornographic videos; if the women refused, they threatened rape or murder and continued coercing them to film pornography. Third, after luring women by the above methods, they confined them in places such as motels and gang-raped them. (There may also have been cases that mixed these three types to some degree.)

Here, the second and third cases are extremely serious felonies because they involved direct physical threats or actual violence. But what about the comparatively less severe first case—that is, extortion unaccompanied by physical threats or violence?

We need to trace the matter back to the beginning of the offense. Is hacking a crime? According to the interpretation of Austrian legal theorist and intellectual property attorney Stephan Kinsella, there are two types of hacking. The first is hacking that deletes data or plants a fatal virus that renders a device unusable. The second is hacking that merely spies on or copies data. The first clearly infringes property rights in that it involves physical destruction. But Kinsella says the second is not a crime. Unlike trespassing on private property, unauthorized access on the internet does not always cause physical damage, and if someone accesses data without authorization and merely copies it without deleting it, it is important to note that no physical destruction occurs. The service provider’s server still contains exactly the same data as before. And an exactly identical new set of data has been added to the hacker’s hard disk. Something new has been created, but nothing has disappeared.

The only possible crime here would be fraud, and only if the service provider had guaranteed that account information would be securely protected, such that the guarantee was revealed to be false. The service provider cannot claim exclusive “ownership” over its data. That is because data fall under a kind of “free goods.” (On this point, see my previous Op-Ed, “Copyright Is Not a Right,”

https://www.cfe.org/20191205_22131

This piece also has many shortcomings, but it explains my argument on the related topic more clearly.)

If so, then the act of the Nth Room ringleader hacking the accounts of women who uploaded nude photos of themselves on social media and identifying their personal information in itself cannot be regarded as a crime. Then is it a crime to use such personal information to blackmail women in pursuit of one’s desired ends?

According to Rothbard and Walter Block, “threat” and “blackmail” are distinctly different. The former is a physical threat. That is, if A says to B, “If you don’t give me 100 million won by 9 a.m. tomorrow, I’ll kill you,” this constitutes a threat because it announces physical violence, and it is a criminal act that aggresses against another person. There is a plausible connection to the idea that if the demand is not met, the victim may actually be killed, raped, or beaten. By contrast, if A says to B, “If you don’t give me 100 million won by 9 a.m. tomorrow, I’ll reveal that you went to a gay club a week ago,” that does not foretell physical violence. It announces that the speaker will exploit the other person’s vulnerability and damage his social reputation. Is this too an aggression against another person? Rothbard answers no. As with intellectual property, reputation or knowledge are free goods that cannot be owned. Reputation or knowledge concerning something exists in people’s minds. It cannot be physically controlled. Moreover, thoughts can be copied without limit. In other words, no one can monopolize them. Thus, he says that damaging a person’s reputation or telling others a fact previously known only to one person causes no property damage or invasion. In today’s criminal law, the distinction between threat and blackmail is not clear, but in Rothbard’s political philosophy it is sharply distinguished. (Rothbard explains this very concretely in his major works *Man, Economy, and State* and *The Ethics of Liberty*. As an aside, Hayek held the exact opposite view from Rothbard. That is, he believed that actions damaging social reputation infringe individual rights. Rothbard criticized this aspect of Hayek very harshly in *The Ethics of Liberty*.)

Then, blackmailing someone with information collected through hacking—which “cannot be legally punished and is merely vicious”—cannot, on the assumption that no physical threat or intimidation is involved, constitute a crime. Therefore, apart from its viciousness, legal punishment would unfortunately be difficult as well.

Of course, the interpretations of Rothbard, Kinsella, and Block—all of whom apply natural law to specific cases—may be wrong. The prominent Austrian School scholar Robert Murphy, while strongly sympathetic to Rothbard’s natural law theory, has argued that it is difficult for one or two scholars to derive applications of natural law to every individual case, and that a legal theory based on natural law must inevitably go through the “discovery process” spoken of by Hayek. In other words, how natural law should be applied to highly concrete, real-world matters such as blackmail or hacking is not something that can be immediately derived, but rather requires very long-term study. Nevertheless, for the purposes of this article, let us continue the discussion by relying on Rothbard’s view, which may be called the Austrian School’s potential orthodox position.

Unlike case 2, which involved physical threats, and case 3, which involved actual rape, I have concluded that case 1—in which pornographic material was extorted solely through simple blackmail—is difficult to regard as a crime. Then in a free society governed by Austrian legal theory, would we have no choice but to leave alone such “not criminal but vicious” people who exploit others’ vulnerabilities for gain through blackmail, as in case 1? In fact, many anti-liberals oppose liberalism for precisely this reason. A similar example is the claim that “a free society without social welfare would be a terrible society in which the poorest would starve to death.”

But this criticism is a statist error that sees only one half and overlooks the other half. It is probably true that a free society cannot legally retaliate against those who infringe intellectual property and privacy that do not in fact exist. But one cannot conclude from the absence of such punishment that a free society would be some inhuman dystopia highly friendly to stalkers and blackmailers.

In cases such as invasions of privacy—things that “are not crimes but are unpleasant to suffer”—(of course, using personal information to commit fraud or obtain loans is clearly a crime; the invasions of privacy discussed here mean intrusions into personal identity or daily life), common social opinion in a free society would surely still be very negative, and naturally the social reputation of someone who habitually invades others’ privacy would be extremely bad. If so, there is a strong possibility that social customs would arise that refuse to respect privacy invaders and impose various disadvantages on them. For example, a particular community, landowner, or homeowner could declare that certain types of people may not reside in or enter villages, streets, or houses under their ownership. Such acts would be an exercise of their lawful rights. They could prohibit blacks or homosexuals from entering, or refuse to hire libertarians. Because the responsibility for exercising their rights lies wholly with them, they may do whatever they wish so long as they do not aggress against others.

If, in a free society, the mastermind of this Nth Room case were discovered—assuming he committed only case 1 and not cases 2 or 3 involving physical threats or rape—it is highly unlikely that he would be indicted by a private prosecutor or brought before a private court. That is because he did not violate natural law. However, it is also highly unlikely that he would be able to lead a normal life in a free society. On the contrary, his life might become even more difficult than in today’s society. Unlike in a state-dominated society, no one would protect his life in a free society. Just as he did to his victims, his personal information would become widely known throughout society, and everyone would reject him. He would be unable to buy goods, unable to rent housing, naturally unable to find employment, and might not even be permitted to walk the streets. There is a very high probability that he would have to flee to a deserted island or a remote mountain valley and live alone, deprived of the benefits of civilization, until death. In a society whose understanding of customary law differed greatly from ours, one might even speculate, in the extreme, that if he were assaulted or killed, private police, prosecutors, and courts might provisionally suspend punishment of the offender. (This is a very extreme speculation.)

Because a free society has never actually emerged even once in history, all of this is conjecture. But in fact it is simply an attempt to apply, at least to some extent, a logic similar to the operating principle of the market economy to the socio-cultural sphere as well. Social demand for privacy invaders or blackmailers is close to zero. The supply of such human types, rather, causes harm. Supply without demand cannot be sustained. Even if such supply cannot be prevented altogether, once it appears, a society governed by market principles and lacking the state may, in a sense, impose retaliation even harsher than under the current system.

Hans-Hermann Hoppe, a leading social philosopher of the Austrian School, called the above “social self-cleansing effect voluntarily carried out by private actors,” rather than the state’s coercive elimination of social evils, “physical removal.”

In his major work *Democracy: The God That Failed*, which clearly sets forth the logical basis and operating principles of the free society, Hoppe said that communists should be physically removed from a free society. Hoppe was not urging us to take clubs and massacre communists. Rather, he was demanding that we ourselves carry out a self-cleansing process “1. by improving social institutions and culture so as to form customs that disadvantage communists, and 2. by ensuring that communists cannot adapt to mainstream society so that their culture cannot exercise influence.” In that way, communists would be unable to set foot in a free society “physically.” The same logic can be applied to “not criminal but vicious” people, including the ringleader of the Nth Room case.

To summarize, one may conclude as follows: “1. Where no physical threat or aggression is involved, invasion of privacy and blackmail based on it are difficult to establish as crimes. 2. Therefore, in a free society, that kind of vicious conduct would not be legally punished. 3. However, a social self-cleansing mechanism very similar to the principle of the market economy would operate and ‘spontaneously’ resolve such vice.” (Of course, whether this logic is persuasive to people is a completely separate issue. Even when something is rationally correct, if people cannot accept it emotionally, they generally tend to reject it. It may be necessary to discuss later how to improve the rhetoric so that people recognize logical truth, and how to appeal to emotion.)

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Original title: 자유사회에서 ‘n번방 사건’은 어떻게 처리가 될까

Author: Kyeong-hun Kim

Date: 2020-04-02

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=free_opinion&pn=14&idx=22530