My friend Shahrzad Rizvi, along with co-author Joshua Kelly, recently published an article in Public Management Magazine titled “Communicating Emergency Information on a Budget.” The article covers low-cost ways for emergency managers to connect with their communities. It highlights social media, new types of alert systems, and free online mapping of public safety concerns. The article includes links to some of these new tools, so I encourage you to check it out.
Yesterday, the Supreme Court issued its decision in Rosemond v. United States, which addresses the culpability of a man who was charged with aiding and abetting another person’s use of a gun in relation to a drug offense. The court decided that he is liable if he knew ahead of time that one of the people he drove to a drug deal with had brought a gun.
In reaching that result, Justice Kagan, writing for the majority, re-addressed some fundamental principles of aiding and abetting law (Rory Little at SCOTUSblog calls the decision “a primer on aiding and abetting law”). Since I recently co-authored an article on the aiding and abetting liability of technology providers, this decision was of particular interest.
The article addresses the lingering confusion over whether the mens rea for aiding and abetting is “shared purpose” or “knowing assistance.” Justice Kagan serves up a sort of blending of the two ideas, which is common among appellate courts. Justice Alito, in dissent, writes that he wishes the court would have addressed the two differing standards, but instead “refers interchangeably to both of these tests and thus leaves our case law in the same, somewhat conflicted state that previously existed.” Justice Alito also says, however, that he thinks the difference between the tests is “slight.”
The point in our article is that this slight distinction can have important implications for technology providers who may be at risk of being considered accomplices of their users’ crimes. Rosemond certainly adds to the conversation about that topic, but doesn’t do much to answer the question. In fact, the Court, in footnote 8, expressly takes no view on “defendants who incidentally facilitate a criminal venture rather than actively participate in it,” as with “the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used.” This hypothetical strikes at the heart of the concerns faced by technology providers.
In other news, our article, and its title, are featured on BookForum’s Omnivore blog today.
There’s been two significant developments this week in the ongoing effort to extradite Kim Dotcom (the CEO of the now-defunct Megaupload) from New Zealand to the United States to face criminal charges of copyright infringement. I’ve been following the proceedings since co-authoring Criminal Copyright Enforcement Against Filesharing Services, 15 North Carolina Journal of Law and Technology 101 (2013).
First, there is a development in regard to fallout from the January 2012 raid on Dotcom’s mansion conducted by New Zealand police, at the request of U.S. authorities. Dotcom audaciously mocked the raid at the launch event for his new service “Mega” in January 2013 by staging “a raid re-enactment complete with helicopters marked ‘FBI,’ and dancing girls clad in military-style dress (but with miniskirts).”
Meanwhile, Dotcom has challenged the search warrant underlying the raid in New Zealand courts. This had some success. First, the Prime Minister apologized to Dotcom for the government spying on him. Then, in November 2013, a New Zealand High Court Judge ruled that the search warrants used in the raid were not proper because they were just “general warrants” and thus “did not adequately describe the offences to which they related.”
This week, however, Dotcom has faced a set back. On February 19, an appellate court issued a decision disagreeing with the High Court Judge’s analysis and concluding that the warrants were valid. You can read the appellate decision here. Dotcom has vowed on Twitter to appeal to the New Zealand Supreme Court. But as noted by the Independent, “[t]he decision will benefit US prosecutors who say the Megaupload website has cost film studios and record companies more than $500 million (£300 million) and generated more than $175 million in criminal proceeds by letting users store and share copyrighted material, such as movies and TV shows.”
Second, the extradition hearing for Dotcom that was scheduled for April 2014 was delayed on February 25, with a new date yet to be set. It’s already been delayed before. The delay is probably meant to allow time for the proceedings about the search warrant to resolve. But Dotcom, in his standard provocative manner, has”accuse[d] the New Zealand government of interfering in the judicial process, to delay the hearings until after the country’s election, due in either October or November,” according to The Register.
Third, as a bonus, Dotcom gave an interview this week to Complex Tech in which he mouths off about the charges against him. He complains that Google has had many more takedown requests related to pirated links than Megaupload ever had, but yet is still in business. Of course, as my paper explains, Megaupload’s real problem wasn’t the number of takedown requests it received, it’s that prosecutors allege that the company either ignored those requests or helped facilitate the re-posting of pirated material.
Finally, Dotcom also mentions in the interview some sort of tripped-out new file service “called Meganet, which is basically kind of like a fluid ocean of data where whatever glass of water you dump into it you can never extract from it anymore, and you kind of just meet the water in the ocean somewhere.” We’ll see where that goes.
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.
This year, Pottstown, Pennsylvania, enacted a classic vacant-property-registration ordinance. The rule gives owners 60 days to register vacant property at a fee of $75. Every year the fee escalates, by roughly $100. According to an article by the local paper, however, even though the town “has identified more than 100 buildings since it began tracking them in 2007,” there was “only one registration form … filed in September” (when the law officially went into effect).
The only comment on the article, as of right now, calls for small-town civil disobedience: “Good, and I hope everyone continues to refuse to comply with this ridiculous ordinance.” The commentator adds, “Hey Pottstown, instead of fining private property owners for not being able to sell/rent their properties, why don’t you try and fix the reason they’re unable to?”
I don’t know anything about Pottstown, but ordinances with escalating fees are best used when a city wants vacant properties demolished: the “shrink the city” solution. Sometimes it’s just not possible to use and restore all of a city’s vacant properties. I hope that local officials are aware of and intend to create the incentive to demolish caused by this type of ordinance. Cities with no escalating fees typically focus more on maintenance requirements, in the hope of preventing deteoriation in the housing stock until the local economy recovers.
Also, I hope that local code-enforcement officials recognize that the VPR program’s success is mostly in their hands; it’s unlikely that people will comply with the law without some sort of pressure to do so. I made this point in 2010: “No matter what type of provisions a local government enacts, the best solution to the difficulties involved with VPR ordinances is robust code enforcement, requiring motivated code enforcement officials and proper funding.”
We don’t have enough people in government who understand the Internet and how much Americans care about Internet freedom and digital privacy. But there are things we can do to change that: Part of it is fixing a political system that seems to operate largely on returning favors. Part of it is electing more people who understand this technology. I’d like to see more nerds in office.
–Alexis Ohanian, co-founder of Reddit, to Wired Magazine, when asked what threatens innovation.
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.’”
Michael Hayden, former NSA and CIA director, apparently in comments made at an episcopal church in D.C., as reported by the Washington Post. Hayden also claimed that “Gmail is the preferred Internet service provider of terrorists worldwide.”
There is an inherent difficulty in writing about the increasing strength of cities: The movement is decentralized, with thousands of varied initiatives across different states and even countries. Not every city needs grass-removal rebates; not every city needs an aggressive vacant-property-registration program. This variation leads to two opposing pitfalls in discourse about cities: getting bogged down in details about individual programs, or speaking so broadly that it amounts to nothing but vague pro-urban cheerleading. Thankfully, in their new book “The Metropolitan Revolution: How Cities and Metros Are Fixing Our Broken Politics and Fragile Economy,” Bruce Katz and Jennifer Bradley (from the Brookings Institution’s Metropolitan Policy Program) consistently strike the right balance.
The book’s strength comes in identifying emerging trends in city governance, and backing them up with solid examples. The last half of the books does this explicitly, discussing three ideas: (1) the creation of “innovation districts” formed by clustering companies to spur economic growth (chapter 6); (2) the growing importance of U.S. cities engaging with cities in other countries, as Portland has done by selling eco-friendly products, and Miami has done by attracting business from South America (chapter 7); and (3) the need for support and freedom, rather than resistance and constriction, from federal and state government (chapter 8, calling for a rethinking of federalism, as Katz does in this video).
The book is littered with other useful tidbits about the “metropolitan revolution.” One general theme for the book is the advantage metro-leaders have in seeking pragmatic solutions to ground-level problems, and the increasing ability for successful solutions to spread because of advances in communication technology. Katz and Bradley also highlight some specific solutions. In chapter 5, which discusses Houston, they underscore the value of community centers in assimilating immigrants. Other chapters describe the importance of regional cooperation. Chapter 3, for example, discusses how metropolitan Denver came together to support the arts, plan more-efficient public transportation, and compete for business as a region rather than as individual suburbs. And chapter 4 covers efforts in Northeast Ohio to build a coalition of businesses to kickstart the region’s economy.
Another example I found particularly interesting is the book’s emphasis on the need to create science and technology jobs. The authors note the conclusion of economist Enrico Moretti that “each new high-tech job in a metropolitan area leads to, over the long term, two additional professional and three additional nonprofessional jobs.” They then showcase efforts in New York City to build tech colleges to attract talent to the area (chapter 1), and attempts to build hubs for tech companies in Cleveland and Detroit (chapters 3 and 6).
The book is refreshingly up-to-date, at least in regard to Detroit, the city it covers that I follow the most closely. The book was published this summer, yet the authors managed to squeeze in the March 2013 appointment of Kevyn Orr as an emergency manager, and the January 2013 federal grant to support a new rail line connecting the suburbs to downtown.
I caution that Katz and Bradley don’t always avoid the pitfalls in writing about cities that I mentioned earlier. They occasionally slip into careless politicking, filling up paragraphs with buzzword-laden stump speeches for urban living (as with the example I’ve noted before about the “new growth model and economic vision” that will “build an economy that works for working family,” p. 2-3). Other times, they get lost in the details of documenting stories, albeit compelling ones, about the communities they write about, at the risk of readers glossing over the trends the authors seek to identify.
Nevertheless, for a frontline analysis of the growing strength of cities in the United States, this is the book to check out.
News broke this week that Chicago is planning to amp up its vacant-property-maintenance requirements.
The new amendments were announced by Mayor Rahm Emanuel and Alderman Jo Ann Thompson after the city received a rash of calls about maintenance problems with vacant buildings. Most significantly, the changes would require lenders and owners to secure vacant property immediately, rather than the current allowance of 30 days. Also, the proposal would allow Chicago to issue fines after just one inspection, rather than two as current law provides. According to the Chicago Tribune, this amendment “is designed to trim to two months from three the process of citing a building owner and getting the case before a hearing officer, as well as to save manpower.”
Interestingly, this announcement comes on the heels of a ruling that the Federal Housing Finance Agency doesn’t have to comply with Chicago’s registry program for vacant buildings, exempting a large number of properties with mortgages owned by Freddie Mac or Fannie Mae.