Doing what we couldn't do . . .

In my last post and in many earlier posts, I address various specific issues but in all of them I am really talking about a single theme: Computer technology lets us do things we could never do before: defraud someone on the other side of the world without leaving our armchair; feature our neighbor in violent fantasies we publish online; track someone's movements without having anyone actually follow them, and so on.

Technology lets us do things we could never do before, but law is still focusing on the old ways, on the things we have always been able to do. That is the nature of law -- it tends to be conservative, which is probably a good thing. We do not, after all, want to find ourselves dealing with the "law of the day" -- a statute the legislature threw together in haste to address what seemed a critical, and immediate, new problem.

As I noted in my last post ("Tracking Devices"), our judicial and legislative processes move very slowly, which becomes problematic when technology -- all kinds of technology -- evolves very rapidly. We need to figure out how we can reconcile law-making as a conservative, deliberative process with technological advancements that change the very fabric of society by letting us do things we could never have done fifty or even ten years ago.

How can we do this? Should we revise our law-making processes to, say, implement a "rocket docket" in our judicial systems that speeds cases through the levels of the system more swiftly, the result being that we generate more opinions dealing with the consequences of emerging technology? We could, I am sure, do something similar with our legislative processes, as well.
The problem is that simply speeding up the system would no doubt give us more law, but there is no reason to believe it would give us better law. Emphasizing accelerated law-making would probably give us "laws of the day" (or "laws of the week") . . . hastily assembled legislation or judicial opinions that react to specific issues, instead of articulating broad, flexible standards that have a broader application and therefore a much longer half-life.

IMHO, instead of trying to speed up the law-making process, we need to focus on what laws -- at least criminal laws -- really need to be concerned with. As I have explained elsewhere, laws are devices societies use to maintain order; laws tell us which behaviors are acceptable and which are not. "Civil" laws ensure that various processes -- e.g., traffic flow and the transfer of title to property -- proceed in an organized, predictable manner. "Criminal" rules prevent members of the society from preying on each other, fiscally, physically and emotionally.

Laws are therefore directed at human behavior. Although technology vastly expands the ways in which we can manifest human behavior, I do not think it fundamentally alters the nature of human behavior. If that is true, then it seems to me we can adapt law to changing technologies by focusing on the behaviors we want to encourage or discourage, instead of on the technology. The technology only serves as a vector for a particular behavior; our concern, therefore, is not with outlawing the technology, but with outlawing unacceptable uses of that technology.

How do we decide what is, and is not, an "unacceptable" use of a technology? My field is criminal law, so I shall focus on how this decision should be made with regard to criminalizing certain uses of technology.

Substantive criminal law -- the law that defines offenses -- focuses on a particular "harm." So, rape inflicts the "harm" of forced sexual intercourse, murder inflicts the "harm" of taking one's life, theft inflicts the "harm" of taking someone's property, and so on. If we focus on the "harm," and not on the technology, we stand a better chance of adopting laws that will have a more general applicability. This, after all, is what we have done for millennia; our criminal laws have always been behavior-based, not implement-based.

This all depends, of course, upon whether the range of human behaviors is stable enough that the emergence of new technologies will not significantly expand it. I think it is, and I think there is a correlation between behaviors and "harms."

To understand why I say that, we need to consider why people commit crimes. Basically, I think people commit crimes for two reasons: (i) rational goals; and (ii) passion.

Robbery is a classic example of a rational-goal crime; the goal is to enrich oneself by taking money or other property from someone else. The same is true of most property and white-collar crimes, such as fraud, forgery, blackmail, extortion, embezzlement, bribe-giving and -receiving, etc. It is also true of crimes like drug-dealing, which are not really property crimes but which share the same premise. In all these crimes, the infliction of "harm" on another is the product of a simple rational calculation: the (illicit) transfer of money or property from the victim to me enriches me, which I regard as a desirable outcome. Not surprisingly, most criminal activity in a society consists, and has always consisted, of rational-goal crimes; and that will continue to be true as long as the enhanced possession of wealth is seen as desirable because it gives one access to increased opportunities for pleasure, for status, for travel, for whatever one desires.

I define "passion" crimes more broadly than some. The press tends to use the term "crime of passion" to refer to a crime in which one person killed another in a highly emotional state; a good example of this is the case in Houston several years ago, when a wife ran her husband down after she realized he was still seeing his mistress. I would certainly include that crime, and comparable crimes, in my "passion crime" category. But I would also include the activities of pedophiles, necrophiles, cannibals and others with, shall we say, unconventional sexual drives in that category. I define "passion crimes" as the antonym of rational-goal crimes; I see them as crimes the commission of which results from an emotional calculus, not a rational calculus.

If all of this is true, and crime is the product of a limited range of human motivations, then I think we will tend to see technology used to commit crimes that, ultimately, are very similar to what we have seen historically. Some of this is already evidence: I occasionally see a press story about an "Internet murder," which always refers to an instance in which someone used cyberspace to set up a meeting with a potential victim whom the perpetrator then killed. I don't see this as a cybercrime; I see this as murder, nothing more. The same is true of cyberfraud, cyberextortion, cyberblackmail, etc.

Not all undesirable online activity falls within traditional crime categories, of course. In my posting on "Fantasy" a few weeks ago, I explained how cyberspace lets someone publish fantasies -- explicit sexual or violent fantasies -- online in which they feature, say, a friend, a neighbor or an ex-lover as the victim of the fantasized activity. Imagine this happened to you: Imagine someone was publishing an ongoing series about raping, torturing and/or murdering you, and someone brought the series to your attention. It disturbs you, of course. But what is your recourse? You can try to sue the person responsible for . . . I'm not sure what. It's not really defamation (it's "art") or invasion of privacy or libel. It might constitute infliction of emotional distress, if you are in a jurisdiction that recognizes that cause of action . . . but even if you can sue, do sue and win, it's probably a Pyrrhic victory. The perpetrator probably has no money, so you will be stuck with your legal fees. And the perpetrator may simply transfer the fantasies (and perhaps himself) to another jurisdiction, one in which your civil judgment is irrelevant.

So maybe this is an area in which we need new law. I suspect it will be. If we decide to develop law in this area, we need to focus not on the use of a particular technology but on the infliction of a particular "harm." This, as I noted earlier, is a passion crime. The passion may be to torment the victim, to "control" the victim in a sense or some other emotional calculus that eludes me but that is, in the end, irrelevant. We need to remember our goal: To maintain order in our society by preventing people from inflicting "harm" on others. To do that, we need to craft a rule, a good, general rule, that criminalizes behavior that inflicts this type of non-physical "harm" on someone.

I hope this has made some sense. It's part of something I have actually been thinking a lot about and have written some about. It is, as you can probably tell, still very much a work in progress.