Data in the Future — Archived or Locked?

Harrison Eiteljorg, II

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The Digital Millenium Copyright Act (DMCA) is US legislation, passed under and signed by President Clinton. The DMCA was, in part, intended to bring US law into agreement with international law in terms of digital rights management. The US law, however, has created some specific problems for the digital community. In particular for those of us with an interest in access to data in old, perhaps out-dated formats, the US law makes it illegal to reverse-engineer software AND file formats.

It is unclear whether or not this law applies if there is no complainant to assert damages. While it is clear that a violation (for instance, a reverse-engineering project involving a proprietary file format) is a criminal offense, it is not clear that the law would be enforced if there were no harm to an extant person or company.

It is nonetheless worrisome in the extreme that the law does not clearly and unequivocally make it possible for someone to do whatever is necessary to retrieve information from a proprietary file format when no economic harm can be asserted. Imagine, for instance, a data file lying unused for a decade on a university computer, the result of a short-term, limited excavation that produced modest results. Further imagine a scholar wanting to obtain the data from that file but finding the format to be so old as to be unrecoverable except at vast expense or by breaking the law as it now seems to stand — by reverse-engineering the file format. The data in the file could well be hidden virtually forever, since retrieving it could be either unaffordable or illegal — possibly both.

This may seem a far-fetched notion, but it would also have seemed ridiculous to suggest that it would be illegal for a hacker to use his skills to show that an AT&T website was insecure, harming nobody and gaining nothing from the effort except the knowledge, knowledge that said hacker posted to a blog so that it would be seen and fixed. But this has happened, and the "criminal" was charged, tried, found guilty, and sentenced to 41 months in prison. Furthermore, he was fined $73,000 to repay AT&T for its expenses in letting AT&T customers know of AT&T's security failure. To be sure, this ridiculous act was not brought about through the DMCA but a similarly bone-headed piece of legislation called the Computer Fraud and Abuse Act. (For more about this case, which has received wide coverage in the computer press, see the recent piece in the NY Times, "Hactivists As Gadflies," by Peter Ludlow, in the paper version of the Times on Sunday, April 14.)

Some have argued that archaeological data need not be placed in an archive, where the files would be regularly moved to new formats, because reverse-engineering of file formats will always be possible. This matter of the Digital Millenium Copyright Act seems to me to invalidate such an argument against archival preservation of archaeological data. We dare not rely upon future reverse-engineering of file formats if doing so might put a scholar in jail. (There is also the cost issue that must be considered. Would anyone spend the necessary funds to reverse-engineer a file format to acess only small amounts of data? I think not.) It has been predicted that most archaeology will be conducted in museum basements in the not-so-distant future. Much archaeological research will also be conducted with old data sets — but not if lawsuits and potential prison time await the scholar who dares retrieve the data. Or if cost makes the process unaffordable.

-- Harrison Eiteljorg, II