The University of Chicago Law School Faculty Blog

Real Legal Remedies for Virtual Harms? (Blog Debate: LIV)

In his post below, Saul asks: "If A deletes much of B's existence in the virtual world, or A manipulates B in that world to such a degree that B's real world health and safety are at issue, why should criminal law be thought out of bounds?"

My answer is that I don't think it should.   Most criminal laws are and should be technology-neutral.  What matters is the harm, not the specific way that the harm is caused.  For example, the crime of sending an interstate threat to harm a person (18 U.S.C. 875)  is the same crime regardless of whether the thread is by postal mail, a telephone call, an e-mail, or communications in a virtual word.  I think this is right: the means of committing the offense normally shouldn't matter.  The key point in my paper is that the "virtualness" of the harm shouldn't matter, either.   That is, we should stay focused on the impact of conduct in the real physical world, not in the virtual one.   So, for example, in the case of the crime of sending a threat to harm a person, the "person" still needs to be a real live physical person.   The concern motivating my paper is that we'll start to believe our virtual metaphors and equate virtual harms with real ones; I think this is a major mistake.

Maybe you're thinking, "Hey, what are the chances that we'll start taking virtual harms so seriously?"  The statute to watch is 18 U.S.C. 1030, the Computer Fraud and Abuse Act, a crime enacted in the 1980s to punish computer hacking. Congress opted to describe the prohibited act as "accessing" a computer "without authorization" or "exceeding authorized access," and more than 20 years later no one knows what these words actually mean.   Some of the interpretations out there are frighteningly broad.  For example,  there are lower-court precedents holding that violating Terms of Service make use of a computer "exceed authorized access."  The U of C's own Judge Richard Posner has written an opinion for the Seventh Circuit holding that an employee who uses a computer with the subjective intent of hurting his employer accesses his work computer "without authorization."  These sorts of precedents  have arisen in the civil context, but they apply equally in the criminal context.  And they'll give prosecutors some ready weapons to start charging virtual harms under existing federal laws if they so choose.

I've written an article arguing against these broad interpretations of Section 1030, and I've been happy to see its arguments gain some traction recently in a few district court opinions.  (Not cases involving virtual worlds -- just computer cases more broadly.)  I think the scope of Section 1030 will be the most important battleground  for the scope of criminal law in virtual worlds in the next few years.  Those who are worried about the evolution of criminal law in virtual worlds should watch these cases very closely.

Is There Any "There" There? (Blog Debate: Kerr on Levmore)

Saul's first post takes a strong view on an important preliminary question:  When we ask how the law should regulate virtual worlds, is there any "there" there?  I attended the very cool Legal Futures conference at Stanford this weekend, and a panel on virtual worlds revealed a very sharp split on this. Some people think this topic is extremely silly, because after all, we're just talking about dorks playing computer games.  Other people think these issues will be among the most important cyberlaw issues of the 21st Century.  I found myself somewhere in the middle, although I tend to think Saul is probably right.  On one hand,  I agree that these aren't important questions right now.  On the other hand, computer technologies always evolve in the direction of becoming more realistic and more lifelike.  That's going to draw in more and more people over time, especially lots of children.  Where people go, the law tends to follow.  If people want to regulate video games and sex toys, you can bet they'll want to regulate virtual worlds. 

My paper focuses specifically on the role of criminal law in virtual worlds, and I think this context makes the case against government intervention easiest.  Filing a lawsuit is as American as apple pie, but most people realize that trying to lock someone up is different (even if with our incarceration rate, a lot of people would say that's pretty American, too).  Still, I think the role of criminal law in virtual worlds is likely to raise a number of difficult questions.  For example, it's easy to agree in the abstract that criminal law should not regulate harms that are only virtual but should redress harms that seep out into the real world.  But where exactly is the line?   Virtual world participants are real people who suffer real unhappiness; the case for regulation will be that these real people are suffering real harms even if the harms seem to outsiders as only virtual.   

Similarly, where will we draw the baseline of conduct and rights in virtual worlds -- in formal documents like Terms of Service or in social norms?  This is a recurring problem in computer crime law, one that I addressed in depth in the case of unauthorized access statutes and that is a major theme of my  casebook:  Computer crimes are so new that we just haven't figured out what we're criminalizing.  Legislatures tend to respond to pleas for new computer crime laws by passing overly broad laws  and letting prosecutors exercise discretion to charge the right kind of cases.   Sometimes, this works; the meaning of the laws evolve case by case, and new laws take on more certain meaning over time.  But even when it works, it often leads to disturbing overcriminalization.  I wrote this essay in part because I fear something similar might happen with virtual worlds: The sentiment that "there oughta be a law" can be a strong one, and it's very easy and politically popular for Congress to pass broad criminal laws that sit on the books underenforced.

Curtis Bradley - Military Detention in the War on Terrorism

If you read this blog regularly, you know that we don't really shy away from controversial topics. On May 1, 2007, Curtis Bradley, who was at the time a Visiting Professor here and is more regularly the Richard and Marcy Horvitz Professor of Law at Duke University Law School, delivered a talk here entitled "Military Detention in the War on Terrorism." Want to listen? Click here. Want to opine? That's what the comments are for...

What's the "harm" in establishments of religion?

Any day now, the Justices will announce their decision in a case called Hein v. Freedom from Religion Foundation, Inc.  This case presents a question about "taxpayer standing" to challenge the actions of Executive Branch officials on Establishment Clause grounds. 

In March, Professor Sunstein published an op-ed in the Boston Globe ("Church, State, and Taxpayers") defending taxpayer standing in Establishment Clause cases, noting that "[t]he Constitution bans the establishment of a religion by government, and a major point of this ban is to ensure that the power to tax and spend would not be used to favor one religion over another or to support religion in general."  At another blog, I wondered if one could make (pretty much) the same argument with respect to other provisions or structural features of the Constitution.  (That is, if we need taxpayer standing to vindicate the point of the Establishment Clause, then why don't we need it, and why don't we have it, to vindicate the point of, say, "the separation of powers" or "the enumerated-powers principle"?)

I'm thinking now, though, about a different (though related) question:  What, exactly, is the harm or (in "standing" terms) the "injury" that we think an "establishment of religion" works or imposes?

Executing child-rapists

Constitutional doctrine relating to capital punishment is (in)famously tangled.  That said, one proposition that, I suspect, most who litigate, teach, or write in the area have long thought -- since Coker v. Georgia (1977), anyway -- one could take to the bank is that the death penalty is an unconstitutional punishment for non-homicide crimes.  The New York Times is reporting, though, that the Louisiana Supreme Court has "upheld the death sentence of a man convicted of raping an 8-year-old girl.  Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing."

It is quite likely that the Supreme Court will review the Louisiana court's decision.  In Coker, the Justices ruled that the death penalty for "the rape of an adult woman" is "grossly disproportionate and excessive punishment" and "therefore forbidden by the Eighth Amendment as cruel and unusual punishment."  Can the same be said -- should the same be said -- of the death penalty for the rape of a child?

Our Faith-Based Justices?

My colleague Professor Stone characterizes, in his recent post, the five Justices -- who are Roman Catholics -- who were in the majority in Gonzales v. Carhart as "Faith-Based Justices."  The claim, as I understand it, is that by failing to invalidate the federal partial-birth-abortion ban -- which, in Professor Stone's view, is clearly invalid under the Constitution, correctly understood -- the Justices are best seen as imposing sectarian beliefs on those who do not share those beliefs.  In my view, though -- as I have suggested elsewhere -- this charge misses the mark. 

Climate policy after Mass v. EPA

The Supreme Court's 5-4 decision in Massachusetts v. EPA (April 2, 2007) does not resolve all the hard questions about US climate policy; it only holds that the state petitioners have standing (potentially important in future cases), and that EPA has the authority to regulate greenhouse gases as "air pollutants" under the Clean Air Act program for motor vehicle emission standards (section 202).  It says nothing about how such regulation should be designed nor how stringent it should be.  But it could set the stage for a shift of regulatory initiative on climate from the states and the Congress to the EPA – - if EPA decides to use its authority creatively.   

Volunteering for execution

The term "death-row volunteer" probably sounds strange -- do people really "volunteer" to be on death-row? -- but, nonetheless, it describes reasonably accurately a not-insubstantial number of those convicted murderers who have been executed in the United States since 1976.  (For more detail on the death-row-volunteer issue, see this paper of mine from a few years ago.) 

Today, the indefatigable Howard Bashman reports, the en banc United States Court of Appeals ruled that Robert Charles Comer, who was sentenced to death in Arizona, was "competent" to waive further proceedings relating to his federal habeas corpus petition and that he had, in fact, "voluntarily" waived those proceedings.  In a nutshell, the Ninth Circuit ruled that, notwithstanding the possibility that legal errors had infected his capital-sentencing proceedings, Comer could prevent judicial correction of those errors by "volunteering" to be executed, in accord with his death sentence.  (The court rejected the argument, advanced by Comer's counsel -- who were arguing, obviously, against Comer's stated wish to volunteer -- that Comer's "volunteering" was the product of harsh prison conditions.)

What should we think about this case?  How should we think about death-row volunteers generally?

Chinese bishops and church-state separation

Although its government likes to claim otherwise, and hopes we won't notice, meaningful religious freedom does not exist in China. Quite the contrary: As the United States Commission on Religious Freedom stated, in its 2006 Annual Report, “The Chinese government continues to engage in systematic and egregious violations of freedom of religion or belief." And so, it was probably more disappointing than surprising when the government-controlled puppet-church, the "Chinese Patriotic Catholic Association," last November purported to ordain a new bishop for Catholics in the Xuzhou Diocese, about 400 miles south of Beijing.

Why should we care? Is there any reason, really, why Americans should worry much about which of these two bureaucratic adversaries  - the Holy See and the People's Republic - picks Chinese bishops?

Yes, there is.

"Supreme Conflict"

Jan Crawford Greenburg, a graduate of the University of Chicago Law School, has just published an already-widely-noted book, "Supreme Conflict," on the Supreme Court and its Justices.  Here is a long excerpt from the book's introduction, which includes some interesting news about Justice O'Connor's decision to retire; here is a Washington Post op-ed, excerpted from the book, discussing the nominations and confirmations of Justices Alito and Roberts, and also the nomination and withdrawal of Harriet Miers; here is a Wall Street Journal piece discussing the Justice Thomas's views and contributions (which, in Greenburg's view, are often and unjustifiably overlooked, or lumped in with Justice Scalia's); and here is a television interview with the author.