Jon, a young Internet geek has information to share — interest that could be of interest to his friends across the country, or even around the world. He posts it online, where it comes to the attention of government authorities. These authorities inform him that he may face legal penalties for sharing information online. When others redistribute the information he has shared, they face legal sanctions, too.

This story may sound familiar to Canadian voters, who were reminded this week that Canada’s Elections Act proscribes the national publication of election results before polls close in BC, the western-most province. This law has been upheld (with a few exceptions) for years, largely because Canada’s media is small enough to be manageably corralled.

The advent of Twitter and Facebook blows that away. It’s hard to imagine how British Columbians can be kept in the dark for 3 hours once their Eastern and Central Canadian friends start tweeting their way through the election results that will be broadcast in the rest of the country beginning as early as 4:30 pm BC time. Heck, I’ve got to stay away from Twitter if I want to avoid Grey’s Anatomy spoilers, so I don’t know how you can hide an entire election from me.

Nonetheless, Elections Canada — a government authority — informs us that we may face legal sanctions if we tweet so much as a “stoked to see Jack Layton doing well in early returns”. But that’s not the basis for Jon’s story, above. Jon wasn’t a Canadian voter or political observer: Jon was a Norwegian teen who in 1999 made the mistake of sharing a little bit of computer code over the Internet. And the uproar he caused offers lessons for Canadians who are trying to make sense of Elections Canada’s promised sanctioning of election-night tweets.

The code that Jon Johansen shared wasn’t just any program: it was a program that cracked the encryption scheme on DVDs. Jon cracked it so that he could watch DVDs on his Linux box — at the time, there weren’t any licensed DVD decoders for Linux — but that had the side effect of making it relatively easy for anyone with a Windows machine to watch DVDs, too. And that made the movie industry very unhappy.

Since the industry had named the encryption system CSS, Jon called his code DeCSS. And the Motion Picture Association of America (MPAA) did what it could to wipe DeCSS out as quickly as Jon had wiped out their encryption. First, they came after Jon, prosecuting him under Norwegian law. Next, they went after everybody else who redistributed Jon’s code on line: most notably, the hacker magazine 2600, along with a guy named Andrew Bunner, who decided to fight the injunction he received.

If there is one thing I figured out from writing a dissertation about hacktivism (political computer hacking — including what happened around DeCSS) it’s that you really don’t want to go making a whole bunch of hackers angry. One the litigation began, a lot of people in the tech community got very upset about the way the MPAA was using the court system to prohibit the distribution of DeCSS. Many of them argued that the DeCSS litigation infringed on freedom of expression — where expression took the form of code.

This image of Jack Valenti, the former head of the MPAA, contains the code for DeCSS

One of the people who heard the story of Jon and DeCSS was Dave Touretzky, a professor at Carnegie Mellon University. Here’s the story he shared with me when I interviewed him for my dissertation:

When I read about the trade secret lawsuit filed by DVD-CCA against Andrew Bunner et al., in December, 1999, I immediately mirrored the disputed files…I was determined to show these movie industry types that it was a BAD IDEA to try to use trade secret law to interfere with free speech. Then in January 2000 I read the transcript of the preliminary hearing in the 2600 case….Impressed by the absurdity of those proceedings, I soon got the idea to construct my Gallery of CSS Descramblers….

The Gallery consists of a set of files containing source code, textual descriptions of algorithms, and discussion of programs that can decrypt data that has been encrypted with CSS, or that can recover the keys necessary for such decryption. One version of the decryption code has been published on a t-shirt; the Gallery includes an image of this shirt together with a link to the web site from which the shirt can be ordered.  [It also includes the] a dramatic reading of the file, a musical version of my “plain English” rendition of the source code, DeCSS haiku, [an] ingenious poem by Seth Schoen [that] is both a commentary on the DeCSS situation and a correct and complete description of the descrambling algorithm:

There’s no way to write
a “secure” software player
which contains the key
and runs on PCs,
yet somehow prevents users
from extracting it.

I thought about Jon, Dave and the DeCSS imbroglio when the Elections Canada story broke this week. Like the DeCSS prosecutions, Elections Canada’s efforts to uphold a longstanding provision of the Elections Act reflects a fundamental misunderstanding of the changing communications context. It really doesn’t matter whether you think that it’s a good thing to keep results under wraps until BC finishes voting, or whether you think the provision is pointless: for good or ill, that provision is now unenforceable.

To think that social media users will refrain from sharing election night tweets is at best naive. Even if we could get them to stop tweeting, would we want them to? At a time when online political discussion is held up as the exception to a general decaying of political engagement, it would seem a shame to squelch the kind of lively, engaged and even meaningful conversation that could emerge on election night.

That’s why I hope that those who defy the ban will turn that defiance into a celebration. Borrowing from the example of DeCSS, they can turn their election night tweets into haiku. They can sing their feelings about the returns in their own riding. They can shoot a YouTube video drama about three friends sitting in their living room, arguing over election night results. I’m not a lawyer, so I can’t say whether this creative expression will make it any more legally difficult for Elections Canada to prosecute — Canada has a quite different legal context —  but it sure will make it a lot more fun.

Whatever happens on our first real-time election night, I’ll be watching online. In collaboration with my friend and colleague Darren Barefoot, I’ve set up a site that is aggregating the hashtag that has emerged for the online protest: #tweettheresults. You can watch what happens too — and think of Jon! — by visiting tweettheresults.ca.