A 61-year-old man in Oregon snaps a photo up the skirt of a 13-year-old girl and a judge rules it legal. Across the country, the president announces the creation of the Cyber Threat Intelligence Integration Center, to coordinate data related to cybercrime from multiple agencies. Both cases might seem different, but they reflect the brave new world of technology we live in, a world where no branch of government is able to keep pace with innovation, and as a consequence, obvious violations of privacy, common decency, and safety occur on a regular basis.
The United States needs tech crimes courts, and the arguments for them are growing every day.
1) We need legal precedents
Law in the United States is ostensibly created by the legislative branch, and also through rules set forth by regulatory agencies, but the judicial branch plays a role as well. Case law is an important component of law in the United States, and so-called judicial activists sometimes blaze a trail for the legislative branch to follow by forcing the government’s hand. Courts are not supposed to make the law, but sometimes they do need to spark discussions about shortcomings in the law.
In 2010, retired Supreme Court Justice David H. Souter gave Harvard’s commencement speech, discussing “a rebuttal of what he termed ‘the fair reading model,’ which calls for an analysis of the Constitution that is grounded in the language of the Constitution—at the expense of a more nuanced analysis that considers the contemporary values and outlooks that can shape judicial decisions.” In other words, being too literal serves no court, and certainly not the nation as a whole.
If the Supreme Court can force a conversation on same-sex marriage, the courts can accelerate discussions about tech-related crimes and force legislators to catch up. In Oregon, the legislature should have addressed the problem of upskirt photos long ago, as, for example, in Massachusetts, where such photography is no longer legal. Had the judge chosen to rule that the image in question constituted child pornography or a violation of privacy, the ruling might not have stood up on appeal, but it would have started a conversation among Oregon legislators.
Case law is a tool other courts use to make legal rulings, as well. Once a legal precedent has been established, it becomes a resource for other judges until it is struck down—and even if it is, appeals, opinions in other cases, and larger judicial discussions can still make it useful. Judges tasked with enforcing legislation are required to interpret it, and sometimes that interpretation requires making a logical leap to address an issue that isn’t covered by the law.
While upskirt photos might not have been in the minds of the Founders, they definitely believed that people had a right to privacy, including privacy of their persons. There’s a legitimate argument to be made about images of people in public places, but when someone is going to considerable effort to snap a photo of a teen’s undies, it’s not unreasonable for her to consider it a violation of privacy.
2) Tech crimes are a very specific subset of criminal, civil, and regulatory law
It’s not uncommon to have specialized courts to handle legal issues that require a high degree of judicial experience and training. Drug courts, for example, were introduced to the United States in the 1980s to address drug-related crimes. They’re specifically designed to address certain types of drug offenses with an eye to rehabilitating offenders and diverting them from the prison system. Meanwhile, specialized courts also handle family law cases, estate probate, and traffic violations. Setting up tech crimes courts wouldn’t violate established precedent, and it could result in a more effective handling of cases that make their way into the court system.
Because of the fast pace of technological innovation in the United States, it can be difficult to stay abreast with the latest changes. This is true of judges as it is with everyone else, which amounts to trouble in court, where judges may not fully understand the evidence being presented. This has been an issue in the past with the introduction of new forensic techniques, for example, and arguments over how expert testimony, the applicability of certain evidence, and material presented in court should affect the outcome of a case. When it comes to cases involving issues like the misuse of electronic devices, hacking, electronic vandalism, surveillance, and other tech-related matters, an educated and trained judge is required.
Judges who specialize in tech crimes can develop a body of knowledge not just in the law, but available technologies. They can use their skills to apply the law fairly and evenly to the cases brought before them, instead of scrabbling in the dark over cases with confusing, conflicting, and complicated information. Additionally, judges in such courts can project into the future and attempt to create broad case law that will cover technology that hasn’t been invented or perfected yet—something legislators are having trouble doing.
3) We need to talk about more than cybersecurity
Cybercrimes are in the news more each year as we confront the mass release of government documents, the Sony hacks, distribution of malicious code, illicit filming of abortion clinic patients and staff, scores of small-scale hacks resulting in data breaches at credit card companies and hospitals, and the like. Just this week, Jeb Bush released a torrent of email with personal information left intact, putting the addresses, names, phone numbers, Social Security numbers, health ID numbers, and more of his constituents online—and he hadn’t even been hacked. Concerns about such security issues were precisely why the new government agency was created and why Sen. Thomas Carper just introduced a law to facilitate the exchange of information about cyberthreats between government agencies and private companies. In both cases, the goal is to identify threats, monitor them, and act swiftly to address them if necessary.
But it’s not just about hackings of personal computers, companies, and government agencies. Technology is bigger than that—and so are tech crimes. Such crimes can include cyberbullying, a serious and also growing issue in the United States that may inevitably land people in court for crossing the wrong lines—as, for example, if a woman is sexually harassed at work by a cyberbully and chooses to take the case to civil court. Likewise, devices like cellphones, cameras, and video cameras are getting more sophisticated and smaller each year, which changes discussions about expectations of privacy and how such tech can be used. At the turn of the 20th century, you knew when your picture was being taken. At the turn of the 21st, that was more debatable. By the turn of the 22nd, undetectable photography methods will be commonplace.
CNN’s Marc Goodman illustrates how technology is changing the face of crime even as it interacts with traditional crime. Discussing the terrorist attack that occurred in Mumbai in 2008, he says,: “The perpetrators were armed with AK-47s, explosives and hand grenades. But heavy artillery is nothing new in terrorist operations. The lethal innovation was the way that the terrorists used modern information communications technologies, including smartphones, satellite imagery and night-vision goggles to locate additional victims and slaughter them.”
Here is also a case where regulations don’t always keep pace with reality. Owning such technologies may not necessarily be restricted, nor should it be—hunters, for example, regularly use night-vision goggles—but uses like this one complicate and exacerbate crimes. Other crimes carry additional penalties when they’re particularly heinous or complicated by certain external factors, and technology should be considered as a potential external factor. Terrorist attacks don’t belong in tech crimes courts, but they illustrate potentially extreme misuses of technology that legislatures haven’t even begun to imagine.
Technology is deeply woven into our lives, but none of us are coping with it well. It’s moving too quickly, with the potential for explosive growth, for us to keep our heads above water. Even as we struggle with the role of tech in our private lives, we’re also facing questions about how it feeds into criminal, civil, and regulatory matters. It’s time to start separating out tech crimes into specialized courts to ensure they’re heard by people who understand their implications and are prepared to make rulings rooted in sound interpretation of law. If we don’t, we’re facing bigger problems than chasing down ephemeral hackers in the night.