CFP'93 - Prologue to a Prosecution

by Donald G. Ingraham

Assistant District Attorney
Alameda County, California

In this year's conference, at the beginning of what many believe is the first year of a new generation in leadership, we decided to take a different approach to the legal facets of computers, freedom and privacy.

Over the past two sessions we have pretty thoroughly aired our never-sufficiently understood Bill of Rights as they affect and are affected by cyberspace, and within that subject have delved heavily into the mechanics of searches and search warrants and the opposition to the admission of their fruits into evidence. Tribal movements aside, while problems persist there is general agreement that we have a good thing going, and they will do for the foreseeable future. We have considered civil liberties not only in the context of the exclusionary rule, but further into the whole issue of legitimated government intrusions into privacy, the reasonableness of expectations of privacy, and the underlying policies.

Grumblings from the banks of the Charles notwithstanding, the law we live with develops less from legislatures than from the steady accretion of appellate decisions reconsidering the results of trials in myriad individual cases. Cases are tried in courts, not the corridors of the capitols.

An example: last year the California Supreme Court resolved the issue whether a covert tape recording by a husband of his wife's conference with another regarding his murder would be admissible in evidence even if obtained in violation of the ECPA: the lower court decision that it was not was offered in evidence at the close of CFP1 as an example of issues yet to come. The higher court resolved it in favor of privacy as statutorily established, and therefore against legal redress for murder. Not a class room hypothetical, but a court room fact. People v Otto, 2 Cal 4th 1088.

So this year we are taking a look at the likely issues of the next decade, and possibly one of the most significant: the potential liability of system proprietors for security. The Hand That Wields the Gavel session projects us only ten years into the future, and considers whether a criminal action in one state can be brought against system administrators and other participants in other states. The details of this simulation are elsewhere in these materials. The point sought to be made is that there is law in place to create accountability for cyberwrongs as there is for pollution and other wrongs, and that if the inner group does not set the standards of responsibility and propriety, they will be set for it.

There was a general consensus among the program committee that a discussion on developing legal issues in regard to responsibility for side effects and foreseeable fallout in cyberspace would not only be a change from the previous discussions pitting law enforcement against criminal defense and civil liberties activists, but might also raise some issues that are often overshadowed in the context of current criminal cases.

This session is intended as an exercise in virtual legality. It projects us to the year 2003 and the Thirteenth Conference on Computers, Freedom and Privacy, and pretends that the attendees have been pressed into service as an advisory jury in a case involves the death of a patient in a hospital, allegedly because of the intrusion of a virus program at one end of a net or chain of systems.

The immediate issue in our case, In re: Talio, is whether the possibility of conviction is such as to justify the extradition of the accused from across the country to the State in which the fatality occurred.

In the mundane world the legal issues at an extradition between the United States are less demanding: the sole question is usually whether the person before the court is the person accused of the crime. Courts considering extradition have taken up other questions, such as the likelihood of a fair trial, but these are rare and are usually deferred to the court where the trial is pending. The general principle is that the trial court should be afforded the opportunity to do its best before it is appealed.

The arguments that our jurors will consider are addressed to the laws of criminal responsibility, and the extent to which a person who accepts a responsibility for performing a certain job can be held accountable for controlling the foreseeable risks that come with that work. Current analogies would include the responsibility of manufacturers for environmental depredations all the way to bartender responsibility for serving a person who later causes a fatality in the course of drunk driving.

It is not at all a question of motive: it is a question of the responsibilities that attend certain social roles. The guilt factor is not an evil intent or deliberation, but negligence.

The fundamental due process question of adequate notice, given the lack of a specific statute, is for another court at another time.

There is, of course, no implied connection with any other legal proceeding, actual or fictional, and none should be inferred.

The jurors task in advising the court who of the defendants should be sent on into the yawning jaws of the Sovereign State of Consternation can be considered as reflecting what the law ought to be as to the responsibility of those of us who are accepting the role of navigating through Cyberspace.

With that understanding, and pursuant to the oath prescribed for the D'Oyly Carte session of l875:

that you will well and truly try.

Your interest and participation is appreciated: results will be tolled and released, and what will come of that, will come.

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