
Ask HN: Add clauses to licenses to handle software misuse by state actors? - cornchips
The recent NSA leak has me thinking. The some names of open source developers are attached to nasty stuff. Adding a clause similar to the form of: &quot;If this software is misused by a state or government, legal retribution may be sought.&quot;<p>If in place, could this mitigate usage of good things being used in bad ways? Lawyers chime in.
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enkiv2
State actors, when sufficiently motivated, are unlikely to be daunted by
licensing terms. (Hell, private companies often violate license agreements in
minor ways; meanwhile, state actors routinely violate international treaties /
break into the networks of allies / perform illegal acts for unconvincing
reasons.)

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cornchips
At least a justified suit can be brought before them, no?

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enkiv2
Depends upon the circumstances, and the agencies involved.

If we're talking about the FBI, then sure -- the FBI does questionably legal
things (or outright illegal things) all the time, and suit can be brought
against them (though if you're fighting a civil suit against a state actor,
good luck paying for good enough legal defense to win even a case that should
theoretically be open-and-shut in your favor). But, the FBI doesn't develop
their own software in-house.

If you're filing a suit against the NSA or the CIA -- in other words, agencies
operating with classified materials -- you can run up against a lot of
(potentially artificial) roadblocks relating to classified materials. The
agency can claim that they have some classified material that exonerates them,
without revealing it in camera; they can throw out the content of leaks by
claiming that (because it is technically classified) it cannot be entered into
evidence. These tactics work more often than you would reasonably expect --
sometimes both in the course of the same case. And then there's all the
(theoretically illegal) things they can do to you in order to discourage you
from bringing suit in the first case.

The legal system is essentially a mechanism for making decisions based on
overhearing arguments between human beings. In other words, it is and always
will be a mess.

There's also the problem that software licenses are rarely upheld in court
(and often contain clauses that have been ruled against). Just because a
license says something doesn't mean that it's true or meaningful -- for
instance, the warranty invalidation clauses in EULAs are not legally binding
(and if you violate one you still can demand warranty protection/service in
many cases, although you will probably need to go to court to get the company
to aggree).

