Technology and the Guilty Mind

Please check out my new article, “Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices?,” which was recently posted to SSRN. Here’s the abstract:

The creators of today’s most successful technologies share an important willingness to push the envelope — a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuant of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers.

This Article focuses on one type of criminal liability — accomplice liability — that can act as a dragnet on technology that lends itself to criminal use. In particular, a violation of the federal statute for aiding and abetting, 18 U.S.C. § 2, can be implied in every charge for a federal substantive offense, and there is a potentially troubling strain of cases holding that knowing assistance can be enough to deem someone an aider and abettor, even without stronger evidence of a shared criminal purpose.

This Article examines when proprietors of technology with both legal and illegal uses aid and abet their users’ crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. The Article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, filesharing services, and anonymity networks like Tor. Ultimately the article concludes that the web of superficially conflicting rulings on the required mental state for aiding and abetting are best harmonized — and future rulings on liability for new technologies best predicted — by looking to the existence of “substantial unoffending uses” for the product or service provided by the technologist accused of aiding and abetting.

Review: The Internet Police

Internet Police by Nate AndersonI recently finished “The Internet Police: How Crime Went Online, and the Cops Followed” by Nate Anderson, who writes for Ars Technica, and I loved it. I found his writing compelling and the stories fascinating. I’m sure that my being a lawyer influenced the book’s appeal for me, as Anderson has a particular focus on legal proceedings. In chapter 8, for example, he discusses being the only reporter to sit through the entire retrial of a lady sued for copyright infringement. Anderson’s familiarity with the law shows throughout the book. He was generally spot on in his discussion of legal topics, and I especially appreciated how he highlighted the important role for federal judges in shaping society’s approach to technology. In fact, federal legal proceedings or decisions take center stage in roughly half of the book’s chapters.

The chapters are helpfully broken down based on topics, and each one tracks a major story throughout the whole chapter.  I particularly enjoyed the discussion of the federal takedown of the child-pornography website “The Cache” (chapter 2), and the efforts to take out Sanford “Spamford” Wallace (chapter 7). Further, the story of “Sealand” and HavenCo, which I had not been familiar with, was very entertaining (chapter 1). The section on copyright infringement also interested me because it touched on many of the same issues discussed in my upcoming article about Megaupload.

As for general themes in the book, one consistent emphasis is how private parties often lobby the federal government to take over efforts to police online activity because of the government’s perceived greater resources. Another is how the tools developed by online criminals are the same tools (with the same threat to privacy) law enforcement uses to track criminals down.

Finally, I liked Anderson’s discussion of the balance of chaos versus regulation on the Internet, and the pros and cons of swinging too far in either direction (too much chaos=child porn, credit-card fraud; too much regulation=no innovation, no privacy). His summary of this balance near the end of the book nicely showcases what could be called the book’s thesis: “Life is messy business on the Internet as it is everywhere else, and we’re never going to engineer the mess out of it. That doesn’t mean we ever accept crime, piracy, or boorish behavior, but we tolerate them online just as we tolerate a certain amount of drunk driving, tax fraud, or jaywalking. Many such problems could be nearly eliminated if we just tried hard enough—required breath tests before every car start, conducted audits on every tax return, posted cops at every corner. But the cost of total order is totalitarianism; the real challenge is making prudential judgments about how we weigh risks and rewards, costs and benefits, order and chaos.”

Social media and Chicago gangs

Kids off the Block Stone Markers with names IMG 4815
Bricks with names of young victims
I want to draw attention to an excellent article in the October issue of Wired Magazine about how social media is amping up the gang wars in Chicago.  The article starts by discussing Chief Keef and Lil JoJo, two rival rappers who taunted each other through YouTube and Twitter. Keef got a million-dollar record deal; JoJo was shot and killed.

Ben Austen, who wrote the article, interviewed people on the ground in Chicago: community leaders, local rappers and gang members, and cops.  I’ll just flag a few tidbits I found interesting; I encourage you to check out the whole article.

First, Austen starkly describes the difficulties facing Chicago law enforcement:

Last year more than 500 people were murdered in Chicago, a greater number than in far more populous cities such as New York and Los Angeles. The prevalence of gun crimes in Chicago is due in large part to a fragmentation of the gangs on its streets: There are now an estimated 70,000 members in the city, spread out among a mind-boggling 850 cliques, with many of these groupings formed around a couple of street corners or a specific school or park.

Second, for fans of The Wire, the HBO crime drama that ran from 2002 to 2008, Austen explains how the show’s depiction of gang-life, praised at the time for its “realistic portrayal of urban life,” is already outdated:

Harold Pollack, codirector of the University of Chicago Crime Lab, says that in every talk he gives about gangs, someone inevitably asks him about The Wire—wanting to know who is, say, the Stringer Bell of Chicago. But The Wire, based in part on David Simon’s Baltimore crime reporting in the 1980s and ’90s, is now very dated in its depiction of gangs as organized crime syndicates. For one thing, Stringer Bell would never let his underlings advertise their criminal activities, as a Central Florida crew did this spring when it posted on its public Facebook page that two of its members had violated their parole and been arrested for posing with guns on their personal Facebook pages. Even a few years ago, a member of, say, the Disciples would have been “violated”—physically punished—for talking about killings or publicly outing a fellow member. But today most “gangs” are without much hierarchical structure, and many of the cliques are only nominally tied to larger organizations.

Third, in telling a story about how police warned the family of a 12-year-old that Keef’s crew was posting threatening comments on a video the boy had posted insulting Keef, Austen touches on how “predictive policing” is far less exotic than critics often allege:

For a long time, criminal-justice experts have talked about predictive policing—the idea that you can use big data to sniff out crimes before they happen, conjuring up an ethically troublesome future like the one depicted in Steven Spielberg’s Minority Report. But in Chicago and other big cities, police are finding it’s much easier than that. Give people social media and they’ll tell you what they’re about to do.

Finally, Austen observes that insulting a rival crew is “so much easier to do online than face-to-face.” This comment, interestly, echoes the heartbreaking-but-hilarious interview Louis C.K. did this week with Conan O’Brien about why he won’t let his kids have smart phones: “They look at a kid and they go, ‘you’re fat,’ and then they see the kid’s face scrunch up and they go, ‘oh, that doesn’t feel good to make a person do that.’ But they got to start with doing the mean thing. But when they write ‘you’re fat,’ then they just go, ‘mmm, that was fun, I like that.'”

The Hacker Ethic and Crime

CCCamp 2007 20
I’m working on a new piece about how criminal law deals with technology creators, especially when innovation leads to a certain lawlessness, as has occurred with the so-called Hacker Ethic. I’m posting some thoughts derived from Steven Levy’s book Hackers, to solicit any feedback the Internet might have to offer.

To understand the modern opposition to technologists as criminals, we must return to the dawn of the computer age, when a distinctly anti-authoritarianism view of technology emerged: the hacker ethic. In the early 60s, student programming hobbyists (later called “hackers”) at Massachusetts Institute of Technology developed a unique culture hailing the virtues of access to computer technology and freedom of information. These early hackers believed deeply in the ability to improve life through technology and resented barriers and bureaucracies that hindered their hands-on exploration and betterment of the world around them. This resentment came, in no small part, from contempt for the haughty guardians of MIT’s million-dollar mainframe IBM computers, the so-called “Hulking Giants,” from which they were prohibited with tinkering. Even computing time on less-valuable machines was precious, and the hackers were, in the early days, forced to scavenge time from “Officially Sanctioned Users.”

This mentality led to a veneration of decentralized experimentation, and a certain “willful blindness” to what hackers saw as inefficient restrictions.  In mischievous pursuit of exploration—though not malice—they probed flaws in MIT’s phone system, intentionally crashed the “Hulking Giants,” and ignored prohibitions on tampering with computer hardware. Having no concept of property rights, they often broke into university labs at night to sneak components, without ever considering it stealing. But in the same spirit, they shared their software creations without thought to passwords, royalties, or licenses, repeating their mantra that “information should be free.”

As the computer revolution spread, so did the hacker ethic. It first jumped coasts, where Californian “homebrew” computer enthusiasts, with an undercurrent of post-hippie activism, collaborated to bring computers to the people by hacking hardware and sharing software, even proprietary applications like Atari’s Pong. As the market for personal computers grew, some software creators began to complain; a young Bill Gates, in a widely circulated open letter to homebrew hackers, accused them of stealing. Although the hackers initially condemned Gates’s letter, many realized over time that selling computers and software could be immensely profitable, and a few, like Steve Wozniak with Apple Computer Company, used their hacker skills to become multi-millionaires. Eventually, the hacker ethic would be credited as inspiring the minds behind tech giants like Microsoft, Google, and Facebook.

Yet even as some hackers were becoming successful entrepreneurs, others entrenched themselves in the movement’s anticommercialism and disregard for property rights. This mentality was often expressed in noble (and perfectly legal) pursuits like Richard Stallman’s fervent evangelism about open-source software. But it also gave birth to a certain lawlessness that would land next-generation hackers in court and mar the term “hacker” with the connotation of “digital trespasser.”

Many times, this lawlessness took the form of antipathy toward copyright restrictions. A strong coalition of media companies and lawmakers, have pushed back on online filesharing, which they view as a significant threat to business. After a failed, high-profile attempt to criminally punish MIT student David LaMacchia for maintaining an online bulletin board with copyrighted software files, these forces successfully implemented strong prescriptions, embodied in the Digital Millennium Copyright Act, against the distribution of technology designed to circumvent Digital Rights Management technology. But peer-to-peer filesharing grew despite these efforts, propelled by hacker-led services, like Napster, many of which were eventually crushed by civil infringement lawsuits. These services typically tried to defend themselves on the grounds that they could not be liable for the infringing acts of their users merely by providing technology. But in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Supreme Court rejected this argument concluding that “secondary” copyright infringers can be liable as long as they intended to promote infringement. This decision paved the way for criminal copyright actions against services like link-listing website NinjaVideo and cyberlocker Megaupload, both of which prosecutors alleged aided and abetted copyright infringement (see my forthcoming article on this topic).

Filesharing companies aren’t the only type of computer technology company to face criminal scrutiny. Programmer Robert Stuart was indicted in New York for violating a state law against gambling promotion by selling online-sportsbook software, even though his software is legal in other jurisdictions and he never accepted an illegal bet; his crime, if anything, is willful blindness to his customers’ activities. Other software providers have faced charges of aiding and abetting criminal activity by enabling users to generate spam emails in violation of the CAN-SPAM Act, facilitating child pornography and terrorism through distribution of digital currency, and allowing circumvention of copyright protections and paywalls for Internet service.

Hacker progenies also have pushed to its limit the notion that information should be free. In on ongoing, high-profile case, army intelligence analyst Bradley Manning was found guilty of severe criminal charges—and was charged (though found not guilty) of the capital charge of “aiding the enemy”—for leaking classified documents to the website WikiLeaks, which published them online. Another prominent, and controversial, example is hacker Aaron Schwartz, who committed suicide after his arrest and prosecution under the Computer Fraud and Abuse Act for using a computer program to download academic articles, which prosecutors alleged he intended to distribute, from the online repository JSTOR. The controversy surrounding both of these situations underscores the often fine line between hackerism and crime.

The Computer Fraud and Abuse Act, widely criticized as outdated, has caused particular trouble for hackers. Along with Aaron Schwartz was Andrew “weev” Auernheimer, found guilty under the Act for his role in discovering and informing the media about a flaw in AT&T’s security system. An appeal is ongoing, and many legal scholars believe he has a good chance of overturning his conviction.

I will continue to blog about this issue as I continue to research it. My goal, along with my coauthor, is to draw broad guidelines for courts to apply when addressing conspiracy and aiding and abetting charges brought against technology creators. Any thoughts?


Why patent infringement shouldn’t be criminalized

First U.S. patent, signed by George Washington

Sorry for the overdose of IP law recently, I plan to return to local-government topics ASAP.

But my recent article discussing criminal enforcement of copyright caused me to wonder about why patent infringement is not a crime in the United States (aside from falsely asserting a product is patented or forging the seldom-used “letters patent”).

Why this disparity between different forms of IP protection? It surprised me how many different theories emerge. For example, professor Irina Manta lists three possible justifications in her article “The Puzzle of Criminal Sanctions for Intellectual Property Infringement” (footnotes omitted):

There could be a moral or utilitarian distinction between soft IP and patents, and the differing availability of criminal sanctions may be warranted because infringers of soft IP cause more harm and/or require harsher punishments for deterrence than infringers of patents. Alternatively, perhaps criminalizing soft IP infringement provides the proper balance of incentives for creators by giving them the safety of added protections for their works, whereas it would overly deter inventors in the patent context. Another possible explanation for the distinction is a public choice rationale: while a number of industries lobby for stronger protection for soft IP (especially copyright), different industries are at odds with one another regarding the proper level of protection for patents.

The Executive Office of the U.S. Attorneys also has commented on this disparity in the third edition of its training handbook “Prosecuting Intellectual Property Crimes,” which notes on page 246 the distinctions between patents and other forms of intellectual property:

Although patents and copyrights share a common constitutional source (and the concomitant requirement that these exclusive rights are for “limited times”), they differ in several meaningful respects. First, copyrights grant an author the right to exclude certain uses of the author’s expression of an idea contained in an “original work of authorship,” whereas patents grant an author the right to exclude others from making, using, and selling devices or processes that embody the claimed invention. Second, in exchange for granting the patentee this right to exclude, the patentee must publicly disclose the invention. Eldred, 537 U.S. at 216. “For the author seeking copyright protection, in contrast, disclosure is the desired objective, not something exacted from the author in exchange for the copyright.” Id. at 216. Third, a copyright gives the holder no monopoly on any knowledge or idea; a reader of an author’s writing may make full use of any fact or idea acquired by reading the writing. See17 U.S.C. § 102(b). A patent, on the other hand, gives the patentee a monopoly on his invention to prevent the full use by others of the knowledge embodied in the patent. Eldred, 537 U.S. at 217.

It is also worth considering the difference between a patent and a trade secret. The first difference is naturally that trade secret information is protected only if it is secret (see Section IV.B.3.a.v. of this Manual), whereas a patent is protected even after disclosure. During the patent process, a trade secret contained in a patent application may lose its trade secret protection through disclosure only to gain patent protection. (See Section of this Manual). Second, a patent gives its owner an exclusive right to his invention, even against another who discovered the patented invention independently, whereas a trade secret, like a copyright, gives its owner no protection against independent discovery. Confold Pac., Inc. v. Polaris Indus., 433 F.3d 952, 958-59 (7th Cir. 2006) (Posner, J.).

I think that the most compelling explanation may be that patents, unlike copyright, are especially at risk of being too broad. This is particularly so in industries like software, where an understaffed patent office cannot sufficiently limit incoming applications.

Although Abraham Lincoln once famously remarked that the patent system “added the fuel of interest to the fire of genius,” today many people see the patent system as enabling arsonists: Aggressive patent holders who use overbroad patents and costly lawsuits as a means to burn the competition.

Criminal enforcement of copyright

Kim Schmitz cropped and edited
Kim Dotcom, head of, indicted for copyright infringement

My perspicacious coauthor and I recently accepted an offer from the North Carolina Journal of Law and Technology to publish our article “Criminal Copyright Enforcement Against Filesharing Services,” which I mentioned here last week. In honor of that, I’d like to share the introduction of the article, sans footnotes:

In January 2012 an elite squad of New Zealand anti-terrorism officers, under the direction of the United States Department of Justice, stormed Kim Dotcom’s lavish $24-million mansion. Equipped with body armor, tactical firearms, dog units, and a helicopter, the squad uncovered Dotcom hiding in a specially designed saferoom. As he was whisked to a police van, Dotcom asked the charges against him. The answer was two words: “Copyright infringement.”

The indictment of Dotcom and his infamous filesharing service, Megaupload, marked the start of a new battle in what reporters have christened the “copyright wars.” Yet it is not the federal government’s only recent foray into the fight against online filesharing services, which, viewed as hotbed for copyright infringement, have been under a decade-long siege of civil litigation from media companies. In 2010, for example, the Department of Homeland Security mounted “Operation in Our Sites” to seize the domain names of websites providing access to infringing content, and the operation has since resulted in the seizure of more than 400 domain names. The issue more recently caught the attention of Capitol Hill, where bills were introduced in both the House and Senate to target foreign websites that link to or host infringing content.

But these efforts have not always been effective. For many of the domain names seized by the Department of Homeland Security, the same infringing content quickly appeared on sites with only slightly modified web addresses, and a few sites even grew in popularity. And the backlash against the two new bills was fierce: many popular websites staged a “blackout” in protest, including the online encyclopedia Wikipedia, citing fears that they would face sanctions merely for linking to controversial sites, even in informational articles.

Meanwhile, other countries have seen some success in directly prosecuting the operators of filesharing services. First, Japan convicted Isamu Kaneko, a computer-science researcher who developed Winny, an early peer-to-peer filesharing system. Kaneko arguably fostered dubious uses of his service by collecting feedback and announcing updates through an anonymous Internet forum dedicated to filesharing. But although Kaneko was convicted by a Japanese district court, the Osaka High Court reversed the conviction after concluding that Winny was “value neutral”—essentially, capable of non-infringing uses—and that Kaneko did not offer Winny primarily to promote infringement, even if he knew that it was probably being used for that purpose. This decision touches on a key question in this article: if a filesharing service is known to have rampant infringing uses, at what point do the service’s operators open themselves to criminal sanctions?

More successful was Sweden’s prosecution of the operators of the Pirate Bay, then one of the Internet’s largest peer-to-peer filesharing services. The operators of the Pirate Bay mocked their contribution to infringing activity, often publishing and ridiculing complaints from copyright organizations. Although Sweden once had a reputation for relaxed copyright laws, the country amended its Copyright Act in 2005 to make it a crime to transfer copyrighted content without permission. When prosecutors then indicted four operators of the Pirate Bay in 2008 for “complicity” in violating the Act, the operators raised the same arguments as Kaneko: that their services had noninfringing uses, and that they were ignorant of any specific infringing activity. But the court found them guilty, emphasizing that they had profited from infringing content by collecting advertising revenue and that knowledge of specific infringing content was unnecessary given that they had created conditions that fostered infringement and ignored notices of infringing content. The defendants were sentenced to one year in prison each and ordered to pay restitution of $4.3 million.

The success of this prosecution has been heralded as harbinger of ones like the action against Megaupload. Yet criminal prosecution of filesharing services is a new development in the United States, and only time will tell whether this new approach proves effective, or under what circumstances it should be used. The future holds many questions: What pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement? We seek to answer these questions in this article. We focus on those online businesses enabling users to share infringing content with others online, and we refer to these businesses simply as “filesharing services,” intending this definition to cover diverse types of technology—including “cyberlockers” like Megaupload, which host files on servers controlled by the service, and “torrent” sites like the Pirate Bay, which provide links to connect users to infringing files stored by their peers.

In the end, we conclude that criminal enforcement actions should be limited to those filesharing-service operators that, in order to profiteer from infringing content, foster infringement by egregiously defying the established boundaries of copyright law and civil means of copyright enforcement.

New article on criminal prosecution of filesharing services

kim dotcomAlong with a coauthor, I’ve written an article about criminal enforcement actions against filesharing services, including the ongoing prosecution of the operators of Megaupload. The article also touches on the actions against the Pirate Bay and NinjaVideo. This area of law is important in defining how the federal government protects creators of copyrighted content without stifling innovation. Yet many questions remain about the extent of criminal liability of these services as “secondary” infringers. You can download the article here (and if you do, please let us know what you think). The abstract is below:

The high-profile prosecution of the popular online storage website Megaupload for criminal copyright infringement is the latest in a series of recent criminal prosecutions of online filesharing services. But what pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement?This article answers these questions and suggests guidelines for prosecutorial discretion. After a condensed history of criminal copyright law, we explain why “secondary” theories of infringement apply in the criminal, as well as civil, context and why the DMCA “safe harbor” defense is a red herring in criminal copyright actions. We then propose guidelines for prosecutors to consider before bringing a criminal enforcement action against filesharing services: Limiting prosecutions to theories of liability already established in civil case law, and targeting only those filesharing-service operators that openly defy civil enforcement actions.

The costs of criminal justice

Cook County Juvenile Detention Facility and Court
One of Cook County’s Detention Facilities
A recent article in the Southtown Star estimates that it cost Will County (on the Southside of Chicago) nearly $600,000 to obtain the high-profile murder convictions of Drew Peterson and Christopher Vaugh. Some of the charges were for evidence that wasn’t even used: since 2009, the county paid $75 per month for a storage locker to house the tub from Peterson’s former wife’s home, and the tub wasn’t even used in the prosecution.

But other expenses did contribute to the trial. For example, the county paid nearly $100,000 to TrialGraphix, which according to its website specializes “jury consulting, graphic design, presentation technologies, and trial preparation solutions.” According to the Southtown article, the company was paid “to modernize the state’s attorney’s office’s ability to present evidence in court.” Still, the State paid this firm nearly two times the cost of a year’s salary for a new state prosecutor.

Other top expenses included a private investigative service ($86,974), forensic medical consultants ($30,000), a bloodstain pattern analyst ($27,326), and firearms expert Noedel Scientific ($21,907).

All of these businesses have been created solely to service the criminal justice system; an unsurprising result given the need for specialized skills in this area, but one that doesn’t help rebut the perception that the justice system is profit driven.

Of course, most of that perception comes from our prison industrial complex. The United States imprisons more people per 100,000 people than any other country in the world. And this imprisonment is expensive. Federal Judge Richard Posner recently explained these costs, especially in regard to older prisoners, in a concurrence in United States v. Craig:

Federal imprisonment is expensive to the government; the average expense of maintaining a federal prisoner for a year is between $25,000 and $30,000, and the expense rises steeply with the prisoner’s age because the medical component of a prisoner’s expense will rise with his age, especially if he is still alive in his 70s (not to mention his 80s or 90s). It has been estimated that an elderly prisoner costs the prison system between $60,000 and $70,000 a year.

That is not a net social cost, because if free these elderly prisoners would in all likelihood receive Medicare and maybe Medicaid benefits to cover their medical expenses. But if freed before they became elderly, and employed, they would have contributed to the Medicare and Medicaid programs through payroll taxes — which is a reminder of an additional social cost of imprisonment: the loss of whatever income the prisoner might lawfully have earned had he been free, income reflecting his contribution to society through lawful employment.

I’m not sure what the solution is. Here’s a New Republic article where Judge Posner discusses some possibilities. But I do think that it is important that more Americans realize these costs, which are often (perhaps rightly?) brushed aside in the name of justice. At the very least, it’s something local officials should consider when embarking on high-profile murder cases.

Reducing inmates, saving money – plans for America’s largest jail

Electronic monitoring get out of jail freeThe Cook County jail is currently the largest single-site jail in the nation. (Jails, as opposed to prisons, house inmates sentenced to less than a year imprisonment or who are awaiting trial, which can last for multiple years.) The Cook County jail can house nearly 10,000 inmates at a time and holds about 100,000 annually. (Interestingly, I learned on a recent tour of the jail that it also operates the state’s largest mental-health facility, just for inmates.)

Running a jail that big is very expensive; not to mention that overcrowding increases the risk of bad conditions and violence. Cook County Board of Commissioners president Toni Preckwinkle says the cost is $143 per inmate per day. With nearly 10,000 inmates, that’s hundreds of millions of dollars. Preckwinkle wants to cut the cost, as reported by the New York Times:

She set a goal of reducing the average daily population at the jail from about 8,500 to 7,500 in the next fiscal year [2012], which begins Dec. 1, to save about $5 million.

That’s a pretty ambitious goal for a county to take on.

The county can’t rewrite the criminal laws; nor does it generally choose who to prosecute. Those decisions are left to the state and federal government. But the county does get to choose how it restrains people: a spokesman for the county sheriff says they are working to enhance their approach to electronic monitoring, particularly for nonviolent first-time offenders. Apparently 70% of the jail’s inmates are there for nonviolent crimes, and Preckwinkle wants to see more of those people put on electronic monitoring rather than incarcerated. Chicago estimates the cost of home surveillance is $65 per day, so it seems like a good plan. (I’ve seen estimates that electronic surveillance can cost as little as $5 per day.) The cost can even be charged to offenders, who, in most cases, would be glad to pay $65 for a get-out-of-jail card.

This seems like a great idea to me, and one that highlights the potential for municipalities to help solve problems that the state and federal government can’t seem to figure out. America has one of the highest incarceration rates in the world. This costs us more than just the price of housing inmates: inmates bring hundreds of civil-rights cases a year against prison officials for constitutional violations (some caused by overcrowding), which add cost to the state and federal government and, of course, human potential is wasted. But no politician wants to be the one to let off more criminals, so there is a lack of support for reforming our prison system. Preckwinkle’s plan makes sense; it targets those awaiting trial (people aren’t getting off too easy in the end), and those who are the least likely to be a risk to society.

What are your thoughts?