Confidence

Confidence: “n.That which is confided, a secret.”

I have an article coming out in the Mississippi Law Journal in which I analyze whether we should criminalize defamation as a way of controlling certain kinds of “problematic” speech online.

By “problematic” I mean cases like the one in Wisconsin in which the fired employee retaliated by using his former boss’ name, address and phone number in a posting he added to “Sex on the Side,” a website for married women who are looking for “action on the side.”

That Iwas a clever, nasty way to cause this woman a lot of grief.

It's also a good example of the kind of thing defamation law COULD be used to discourage because this incident has all the basic elements of defamation: a false statement, published intentionally that has the effect of holding the victim up to ridicule and/or damaging her reputation. Defamation has generally either not been criminalized in this country or, if it is criminalized in a state, tends to be a very minor crime that is seldom, if ever, prosecuted.

But I don’t want to talk about defamation here. I want to talk about a different, residual category of “harm” I encountered in researching the online defamation issue. This type of “harm” results when someone (Person A) posts ostensibly “private” information about another person (Person B).

A good example of the alleged infliction of this type of “harm” came in the Jessica Cutler-Robert Steinbuch case. The two Congressional staffers were lovers for a time. Cutler, without Steinbuch’s knowledge or consent, posted details of their sexual encounters online in her blog. The postings were later picked up by another blog and circulated widely. Steinbuch sued Cutler for “describing in graphic detail the intimate amorous and sexual relationship between Cutler and” himself. His complaint said that her “outrageous actions, setting before anyone in the world with access to the Internet intimate and private facts regarding [Steinbuch], constituted a gross invasion of his privacy, subjecting him to humiliation and anguish beyond that which any reasonable person should be expected to bear in a decent and civilized society.”

I’m perfectly willing to concede that the postings caused Steinbuch humiliation and anguish, both in excess of what a reasonable person would want to endure. My issue lies with the nature of his complaint against Cutler.

This isn’t a defamation case, a libel or slander case, because he doesn’t say that what she posted was untrue. His complaint, then, lies not with what she said but with the fact that she said it – that she “published” it to other people in a very public way. And that’s the issue I want to talk about, the residual issue that cropped up when I was researching the evolving, morphing phenomenon of online defamation.

Historically, defamation law has protected people from “harm” by discouraging others from (i) intentionally (ii) publishing (iii) false information about them that (iv) is calculated to cause them “harm” by damaging their reputation or holding them up to ridicule. For all intents and purposes, I think we can fold “ridicule” into damage to one’s reputation, so I won’t break those “harms” out into different categories.

The rationale the law has used for sanctioning defamatory material falls into two categories: Civil law allows people to seek monetary damages for the publication of defamatory material, on the premise that the compensation redresses the “harm” done to them. Criminal law historically imposed criminal sanctions on people who published defamatory material because its goal was prevent people from doing this and thereby discourage what the law calls “self-help”, i.e., defamed people taking the law into their own hands. This used to be a major concern back in the days of dueling, but this rationale has pretty much dropped out of modern defamation law, so the remaining rationale for both civil and criminal defamation is the damage to one’s reputation.

The Steinbuch case and similar cases in which someone publishes true information about another person can also damage that person’s reputation, but modern defamation law, anyway, would not see that as defamation because, as I noted above, the material is not false. Here, the damage to someone’s reputation results not from their being portrayed in a “false light”, but from information leakage. As everyone who’s ever taken a sociology course knows, we all play roles – we present one “face” to a certain group of people and a very different “face” to other people, or to another person.

We have historically been able to do this because we have been able to exert a fair degree of control over the segregation of personal (and professional) information we rely on to support these disparate roles. Assume, for example, John Doe: a Certified Public Accountant, a deacon in his Methodist church, a coach for his son’s Little League team, a husband and an habitué of Sado-Masochistic clubs, He plays a different role for each activity . . . in effect, has a different “self” for each activity. His ability to segregate those selves depends on his ability to parse the relevant information out among the roles and among the people who experience him in these different roles. And because some of the roles are not inconsistent, the information leakage issue will only become an issue for a certain role or certain roles; in this example, the leakage issue would arise with regard to his recreational S-M activities.

In the real-world, we have always been able to manage this kind of information segregation pretty satisfactorily. Those who know us in our more discreditable roles are unlikely to be people who interact with those who known us in our more “public,” more conventional roles, so that helps sustain the information segregation. Those who know us in these roles may gossip about us, but that will generally have limited circulation in the real, physical world; the gossip will be shared with people who know each other, and since they probably do not participate in the aspects of our lives in which we play more creditable roles, the segregation holds. Information leaking issues can arise, of course, when someone we know from a more discreditable aspect of our lives either directly shared information about that aspect with our families, our co-workers or others whom we interact with in our more creditable roles. This results in some information leakage . . but for those of us, the vast majority of us, who are NOT celebrities, the leakage tends to be limited in scope. That means the damage will also be limited in scope.

Cyberspace changes all this. To paraphrase Louis Brandeis and Charles Warren, who wrote a law review article on invasions of privacy over a century ago, today “what is whispered in the closet” can now be broadcast to the world . . . over and over and over.

That is the Steinbuch problem . . . the information leakage problem. And it is a problem. We trust people. We have to trust people, whether we are being our creditable or our less-than-creditable selves. We realize at some level that people can betray us, but we do not expect them to do so. Like Steinbuch, we are hurt and embarrassed when this happens.

Is this a legal issue? Should this be a legal issue? By that, I mean should the law step in and create a new crime, a new civil cause of action or both to provide mechanisms by which those who betray confidences can be sanctioned? The goal of such innovations would be to discourage people from betraying confidences.

You may disagree, but I do not see how we can do that. When we have affairs, when we go to S-M clubs, when we do other things we would prefer not to have broadcast to the world, we know that can happen. We know we are relying on that most fragile of things: trust . . . confidence that others will not betray us.

How can we prosecute people (I tend to default to the criminal solution) for betraying us? We prosecute people for betraying their country, but that’s different, if only because it is an indirect path toward death, injury, destruction and other real, physical “harms.” When someone betrays us, we suffer a “harm,” a real “harm” . . . but it primarily a psychic “harm.” Criminal law, anyway, has, and is, loath to sanction people for inflicting psychic “harm” on each other. If we began to do that, where would we stop? Would it become a crime to gossip about others . . . about how they dress? How they look? How much they earn? How ugly their dog is? How tacky their apartment is? . . . and so on and so on.

We could try creating a civil cause of action allowing someone to recover damages for the infliction of this type of psychic “harm,” but there are several problems with doing that. One is that the number of lawsuits would very quickly overwhelm the current court system and any court system we’d care to design. The other is that most of the people who would be sued are what the law calls judgment-proof; that is, they don’t have enough assets to pay a judgment or even to pay the other side’s attorneys’ fees.

Law does not seem a good solution. I wonder, then, where all this will take us. Maybe we will become so inured to the “outing” of various aspects of people’s lives that we will lose interest in it. . . .

Snuff Online

A Friday the 13th topic: snuff films

Snuff films, as you may know, are films that show someone being murdered. Unlike video that inadvertently captures a murder, a snuff film is made deliberately; the murder is the purpose and the centerpiece of the film.

Some definitions say a snuff film has to be made for profit; for my purposes here, a profit motive is irrelevant.

What I want to analyze is the legality, or illegality, of “publishing” a snuff film online.

You may have read about the video recently posted to YouTube: It showed a man tied to a chair being beaten and interrogated about killings he eventually admits, after which he is beheaded on camera. This is apparently an installment in a series of videos being posted by Mexican drugs gangs who are waging an online war of intimidation.

YouTube reportedly removed the video after it was brought to their attention and posted a notice saying it violated the site’s terms of use. YouTube’s Community Guidelines say “graphic or gratuitous violence is not allowed.”

This post is not about YouTube. It is about the legality, or illegality, of posting a snuff film – a film that premeditatedly records the murder of a human being – online. This is not an issue we have ever had to address because we – the general media-consuming public – have never encountered a snuff film. Some have claimed they don’t exist, that they’re apocryphal. I’ve always doubted that. Life is cheap enough in various corners of this and other countries that I see no reason why a snuff film could not, and would not, be made.

Publicizing one, though, is a different issue: Prior to the rise of the Internet it would neither have been possible nor intelligent to distribute a snuff film. Media outlets would not have touched it, and distributing it would only have been asking for law enforcement to go after any- and every-one involved in its creation.

Murder

Anyone involved in creating a snuff film is liable for murder. Assume the YouTube beheading video had been filmed in the U.S. and that U.S. law enforcement tracked down those involved in its creation. The person (or persons, I’ve only seen parts of the video) who actually beheaded the man is a murderer, pure and simple. In case anyone does not know, law defines murder as purposely taking the life of another human being. Case closed: The video records what happened, and even a good defense lawyer won’t be able to convince a jury that the perpetrator “accidentally” or “innocently” beheaded the victim, at least not given the descriptions I’ve seen.

What about the others . . . the people who were present, filming and otherwise assisting with the murder and with its being recorded? They, too, are liable for murder, though on a different theory.

In law, you can be liable for a crime either as a principal (the killer, in this instance) or as an accessory to a crime (murder, here). Accessories are people who either (i) facilitate the crime by, say, tying up the victim or providing materials to be used in committing it; or (ii) encourage the commission of the crime. The person or people who recorded the beheading would be liable for murder, even if this is “all” they did, because the law would find that they encouraged its commission. The level of encouragement that suffices to hold someone liable as an accomplice does not have to be, as we say in law, the but-for cause of the crime; that is, it does not have to be the cause of the crime. Law does not want people playing any role in promoting the commission of crimes, so even a pretty low level of encouragement – such as videotaping the crime with the perpetrator’s knowledge – would qualify.

Okay, these people are easy. They participated, in various ways, in the commission of the crime and therefore helped set it in motion and bring it to its culmination. That, in law and in common sense, makes them liable for what happened.

Later

But what about people who come later, after the murderhas been committed and it is too late to stop it, but who “publish” the video of the crime? Do they bear – should they bear – any criminal liability for the crime?

They did not commit the murder, so they can’t be directly liable for it. They weren’t there when it was committed, indeed, probably knew nothing about the murder until after it was committed, so they can’t be liable as accomplices. As I noted above, the premise on which we hold accomplices liable is that they contributed to the commission of a crime; you can’t contribute if you weren’t there and knew nothing about what was going on until after it had already happened.

There is a related concept called “accessory after the fact,” but that only applies to people who help a criminal escape after the criminal has committed the crime. That obviously would not apply here, since showing the crime could, at the very least, help identify the perpetrators and bring them to justice.

All of the doctrines we have that impose criminal liability only operate prospectively, that is, they only apply to conduct that occurs before a crime is committed and that either actually contributed to the commission of the crime or was intended to do so. (You can be an accomplice if you try your best to facilitate the commission of a crime, but don’t succeed . . . if, say, you show up with the murder weapon but the murderer has already left and uses a different weapon. The law says you tried, so you’re an accomplice.)

That’s only common sense. As I said above, things you do after a crime has already been committed can’t possibly have contributed to its commission.

So, if snuff films were to start showing up online (which I most certainly hope does not happen), we’d need to come up with a different theory to impose criminal liability on those who were “publishing” them . . . if, of course, we thought that was a good idea.

Policy

Do you think that’s a good idea? Do you think we should make it a crime to post snuff films online?

If a U.S. jurisdiction were to do that, the law would certainly be challenged as violating the First Amendment. I’m not going to get into First Amendment issues here, though, because I have enough to do without that.

I’m speculating about the possibility of criminalizing the online publication of a particular type of crime that has already occurred: an orchestrated, intentionally-filmed homicide. Opponents of such a law might point out that television and online news outlets show, and have shown, films of other crimes being committed and that this has never given rise to calls for criminalizing these broadcasts.

Proponents of such a law would argue that a real snuff film – even a not-for-profit snuff film like the one that just surfaced – is different. They would argue that the filming is itself an integral part of the crime being committed, that the entire purpose of a snuff film is to memorialize the act. Those who would support criminalizing the online distribution of snuff films would conclude that if we do not criminalize the distribution of snuff films we are not only playing into the filmmakers’ hands – giving them the fame or whatever else it is they wanted – we are also doing something even more harmful.

They could argue that letting these films be distributed online could encourage the production of other, similar films. That is, the proponents of criminalizing the online (or whatever) distribution of snuff films could argue that the act of “publishing” such a film can, in effect, do what accomplices do – it can encourage someone to commit a crime. Now, in this context the encouragement would not be focused on the commission of a specific crime as it has always been in the real-world; it would be a more general, global act of encouragement.

The opponents of criminalizing the distribution of snuff films could counter with the argument that this goes too far . . . that we do not, and cannot, criminalize everything that has a generalized potential to encourage someone, somewhere, to commit a crime.

This may seem an irrelevant, unnecessary train of thought, since snuff films have never publicly surfaced and have never been publicly distributed . . . at least not until that brief time period while the Mexican video was on YouTube. But one could, quite rationally, dismiss that as an aberration.

I hope it is. I like cyberspace. I like cyberspace with its variously creative, entertaining, obnoxious, disgusting, frightening, depressing, fascinating content. I, personally, don’t want to see it cut back, restrained and civilized. I will not, though, be surprised if the snuff film issue crops up again . . . and in a domestic context that makes it more difficult for us to ignore.

Much of the online content is currently being filtered in an ad hoc way to conform to certain standards of what the public is deemed to find acceptable. A few years ago, there was a furor because a U.S. website posted the video of reporter Daniel Pearl’s being beheaded. The site operator invoked the First Amendment as the reason for posting the video in an argument I, for one, could buy; this was a record of a past crime, of something we may not want to see but that had happened to an American because he was an American. There is a political context there, which I think justifies the invocation of the First Amendment.

The online filtering etiquette will probably develop cracks as things go along, and tend to degrade . . . which means we may very well see a site that hosts a snuff film, or two, or three, one of these days. If that happens, I will be curious to see how we react as individuals and how, if at all, the law reacts.

Happy Friday the 13th.

If a crime falls in the forest . . . ?

That vaguely Zen-ish caption is my way of launching this exploration of the possibility of using real-world law – specifically, U.S. federal law – to prosecute people who run virtual casinos in places like Second Life.

As The Register noted, this possibility raises the prospect of “virtual prosecutions” and of “virtual FBI agents kicking down virtual doors”. As The Register also noted, “the mind spins.”

The context here is that Linden Labs, operator of Second Life, has recently invited FBI agents to “take a look around” in Second Life and “raise any concerns” they may have about gambling going on there. According to a Linden Lab representative, the agents “did look around in a virtual casino” but no made no arrests.

The reason for that, of course, is it is far from clear whether gambling in Second Life, or in any other virtual would, would violate U.S. law. If it did, prosecutors and agents would then have to figure out how to enforce the law in this context, which is an issue I’ll get to in a minute. I want to start with whether virtual world-based gambling is, or should be, a crime. I’ll outline what the law is first, and then throw in my own two cents.

There are basically three federal statutes that could (emphasize “could”) be used to prosecute gambling in Second Life. One is the Travel Act, 18 U.S. Code § 1952. The Travel Act basically makes it a federal crime to travel in interstate or foreign commerce or use the mail or any facility in interstate or foreign commerce with to (i) distribute the proceeds of or (ii) otherwise “promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity”. 18 U.S. Code § 1952(a). “Unlawful activity” includes gambling that is carried on in violation of the laws of the state in which it occurs. ” 18 U.S. Code § 1952(a). So, to qualify for prosecution under this statute, gambling in a virtual casino in Second Life or in any other online world would have to violate the law of the “state in which it occurs” . . . which raises a very interesting question.

Does the gambling that goes on in Second Life occur “in” any U.S. state? Linden Labs itself is located in San Francisco. I don’t know where the Second Life servers are located, but for the sake of analysis let’s assume they are also located in California. And let’s make this analysis even easier by assuming the kind of gambling that goes on in Second Life casinos does violate California state law (again, that’s just an assumption).

Okay, let’s further assume that John Doe (our favorite person to pick on in law school) operates a casino in Second Life. Doe lives in Maine, and his customers come from various U.S. states (including California). They also come from outside the U.S., from countries where online gambling is, let’s say, either legal or has not been declared to be illegal. Can Doe be prosecuted for violating the Travel Act?

We have no indication he traveled in interstate commerce as part of operating his online casino, so that option is out. Using the Internet would qualify as using a facility in interstate or foreign commerce, so if we can say he used the Internet to carry on or facilitate the conduct of a gambling operation that violated California law, then he could, it seems, be prosecuted for violating the Travel Act. Doe, who lives in Maine where, we’ll assume, this type of gambling is not illegal, might argue that what he was doing is legal in the state where he lives . . . and, besides, he’d argue, how can anyone say that the online gambling that occurred “in” Second Life took place in California? Doe was never in California, nor where most of his customers (a few were, just to make things interesting).

That raises a very interesting issue, one that runs through a lot of legal analysis involving online activities. We’re dealing with an emergent reality here – with a virtual construct that becomes the scene of conceptual human activity as surely as the real, physical world is the scene of physical human activity. Do we treat this emergent reality as a “real” reality or do we reduce it to a physical reality? That is, do we say that the gambling going on in Doe’s casino occurred in Second Life and nowhere else . . . which would put it outside the scope of the Travel Act? Or do we say it occurred, presumably simultaneously, in California and in any other venue where one of the players was physically located?

These are very important questions because the other two federal statutes that could criminalize gambling in virtual worlds such as Second Life also require that the gambling have been illegal under the law of a U.S. state. 18 U.S. Code § 1955 & 31 U.S. Code §§ 5362(10), 5363 & 5366. So whether or not this type of online gambling can be prosecuted under current federal law depends on how we answer the questions I posed above? (Whether or not a state, such as California in this hypothetical, could prosecute will also depend on how we answer these questions.)

This is where we come to my two cents. It seems incredible to me that we would create these complex, heterogeneous online worlds and then attempt to reduce them to parochial venues. As far as I can tell (having dabbled a bit in Second Life), one reason, if not the principal reason, people participate in Second Life is to have experiences that transcend what is available to them in their localized physical reality. For that matter, many of the experiences people can have in Second Life transcend what is available to anyone in any physical reality currently existing anywhere on the globe, which makes it even more interesting.

The U.S. Supreme Court has implicitly recognized that it will have to deal with this issue in a different context – in the matter of defining what is and is not obscene. For some reason, in the U.S. we still criminalize matter that is “obscene” but do not criminalize mere “pornography.” The Supreme Court long ago articulated a test for determining whether something is obscene, a test that incorporates local community standards as one of the factors it considers.

Now, that test may have made sense when sexually-oriented material was only available in hard copy and had to be physically shipped to a location and displayed there for sale. In that world, the material itself came into the community which, at least arguably, could give the community the interest and the right to exercise some control over it.

The migration of sexually-explicit material online makes that standard changes that equation and makes that standard essentially meaningless. The material does not come into the community; the community (or those members of the community who are interested in such material) seek out this material by going online. This means that they gain access to something that is being distributed for a much wider audience – a global audience, in effect. As the Supreme Court has intimated, it is clear that relying on the community standard to define what is and is not obscene is an obsolete artifact of a different world. What made sense when New York City and Peoria (sorry, Peoria) were physically and culturally isolated makes no sense when precisely the same material and same experiences are available online to people in either city.

Obviously, I think the current federal approach to criminalizing gambling should not apply to activity in Second Life or in any other virtual world. So far I’ve based that argument simply on parsing the language of the applicable law, with a gloss added as to how we interpret when – if – virtual activity occurs “in” a physical venue.

Let’s go beyond that now and discuss a related issue: If online gambling occurs purely online, and if it only involves the use of virtual currency, what, then, is the “harm” with which the law should be concerned? I’ve never been quite clear as to what “harm” is involved in real-world gambling. The social concern seems to be to protect people from themselves, i.e., to protect people from gambling away all their money.

I don’t see why we need to be concerned with this victimless crime, when people are quite free to fritter away their money on cars, worthless real estate, jewelry, or their latest infatuation. Nor do I see how criminalizing gambling can be justified selectively; as we all probably know, in the U.S. many states conduct lotteries and/or operate casinos, which is quite legal. It’s just illegal, outside a couple of states, if private parties do that.

But let’s go with the premise that there is some justification for criminalizing gambling in the real-world because of the loss of “real” assets. The proponents of online gambling might point out that in Second Life, anyway, the gambling involves the use of Linden dollars, not U.S. dollars or any other real-world currency. They could use this to argue that whatever “harm” is involved in real-world gambling does not exist for online gambling.

The opponents of online gambling would no doubt point out that gambling in Second Life involves the use of Linden dollars which can be “exported” to the real-world. Their argument, then, would be that the same “harm” targeted by real-world gambling (whatever it is) results from online gambling because people can (I assume) move real-world currency into Second Life and use it for gambling . . . and there irresponsibly dissipate their assets. If you buy the argument for criminalizing gambling in the real-world, you’d no doubt buy that argument. If, of course, a virtual world only allowed gambling to be conducted with virtual currency that was not transportable into or from the real-world, the validity of this argument radically erodes.

Let’s still assume, for the purposes of analysis, that there is a valid reason to criminalize gambling in virtual worlds like Second Life and that we have figured out a rational way to apply federal law to this end. One logical possibility would be to quit using state law as a definitional component of the statue criminalizing online gambling and just adopt a federal statute that made online gambling a crime. There are reasons why that approach might be problematic, but while we’re hypothesizing let’s just assume that was done and it worked. This brings us to the enforcement issue.

If everything else is in place, how would federal agents enforce laws criminalizing gambling in Second Life (and similar online venues)? The obvious way to do this is to put pressure on Linden Labs to crack down on virtual casinos. Since Linden Labs is located in the United States, and since Linden Labs has a real, external presence in the territory of the United States, federal agents and prosecutors could tell Linden Labs to shut down virtual casinos in Second Life or face prosecution. The government’s theory there would be that Linden Labs was liable for aiding and abetting illegal gambling if it did not shut down the illegal virtual casinos. (The government could also argue that Linden Labs was conspiring with the operators of the virtual casinos to violate the federal law we’re assuming applies here.)

If that were to happen, I’m sure Linden Labs would comply, to the best of its ability. The problem is, as a Linden Labs representative recently pointed out, since there are millions of registered accounts in Second Life and millions of places and objects in Second Life, it simply would not be feasible for Linden Labs to be able to keep track of every virtual casino that cropped up . . . especially not if the operators took steps to conceal what they were doing.

So, what would be the solution? As The Register said in the quote I began with, we’d presumably wind up with virtual federal agents conducting virtual undercover investigations (virtual snitches?) in Second Life. I don’t know about you, but I’m just not persuaded that we need to go there.