Let's write laws for whistleblowers, hackers, and crimes of data

One of the things you notice about Edward Snowden and Bradley Manning is that no one is really "neutral" on their treatment. I see a lot of "hero!" and a lot of "traitor" but not a lot of "eh, don't care" when it comes to those cases. I also notice that there is often a lot of legal fuzziness involved in such cases.

I don't want to talk to you about Edward Snowden or Bradley Manning right now though. I want to talk to you about Deric Lostutter.

It makes sense, in a twisted way, for Lostutter to receive 5 to 10 times the sentence that the rapists he exposed received. They were minors; he wasn't. They only hurt the girl; he could have hurt more people involved in the site whose security he compromised. It makes a twisted kind of sense. And yet the outcome is ridiculous.

It just seems like we don't have any idea how to handle people who commit crimes by spreading information. And if there's any area of law that needs to be updated and clarified in the 21st century, that's it. In the spirit of the "Let's Write the Constitution for a Hypothetical Nation" thread, can we come up with better laws and guidelines on when people who expose information should go to jail, and for how long? Or even find alternatives to jail for such cases?

Share it so that people can get into this conversation, 'cause we're not the only ones who think like this.

2 things. one, the sentence those guys got is way too low. i don't see 1 or 2 years as being enough. as for the whistle blower, he's being made a scapegoat for the whole thing and they're pinning the hacking thing on him.

as for the hacking, that WAS a crime. the hacker knew that and will have to suffer the consequences. 10 years on it is quite honestly insane, and this guy shouldn't have to suffer for what that other person did.

as for snowden, I am on the fence about that, even if no one else is.

I'm baaaaaaack

This seems like the sanest place to start:

"If a whistleblower or hacker exposes a crime by unlawful means, the maximum sentence shall never exceed that of the criminal(s) exposed."

I'd also add the following:

"If legal whistleblowing means exist, but reasonable doubt may be established by a public jury as to their efficacy or fairness, charges against the whistleblower shall be dropped."

"If the exposed material is controversial enough that its constitutionality must be decided by the Supreme Court, regardless of the decision, charges against the whistleblower shall be dropped."

"If the agency whose material was exposed is found to significantly infringe its own regulation as it pertains to the exposed material, charges against the whistleblower shall be dropped."

edited 17th Aug '13 6:27:31 PM by Pykrete

I don't know about the charges being all-out dropped in all cases... I could see a few cases where that might end up with someone getting off scot free who shouldn't...

I do like the second one talking about the supreme court though. I don't know about automatically dropping the charges, but I do really like that idea.

Though the problem is, things like FISA courts will just put some jargon in sidestepping such a thing.

edited 17th Aug '13 8:08:24 PM by Barkey

Yeah, it's probably too far. Differentiation by the content of leaks to make sure we don't get indiscriminate stuff like Manning would be critical. Still, I'd much rather err on the whistleblower's side right now and provide an incentive for companies, shady agencies, and prohibitively biased whistleblower courts to fix their shit already.

edited 17th Aug '13 8:40:50 PM by Pykrete

The Supreme Court decides which cases they will or will not hear, though, and by the time a case gets to that point most of the Justices have usually made up their minds. So if most of the Justices think the exposed material was constitutional, they may simple refuse to hear the case in order to not let the whistleblower off the hook.

"It takes an idiot to do cool things, that's why it's cool" - Haruhara Haruko

That sounds exactly like the opposite of what you actually want. The punishment for data crimes should be inversely proportional to the crime exposed, not proportional (hacking and exposing murder or treason should give the hacker less punishment, if any at all than doing it and just exposing the stealing of 3$ worth of food - or in the most extreme case just not finding anything illegal at all).
It's not an easy topic, I think I'll give it some thought before making any suggestions.

Pour y voir clair, il suffit souvent de changer la direction de son regard www.xkcd.com/386/

I wouldn't want to see charges dropped in a situation where the leaked material can be considered sensitive military intelligence, especially during times of war.

Hypothetically, if some guy steals all of America's secret war plans and blabs them all over the internet for all of our enemies to see exactly what we're doing, where we are, and how best to strike at us, I would want to see that person convicted hard. Posting sensitive military intelligence online for the world to see is treason.

edited 17th Aug '13 10:14:34 PM by TobiasDrake

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To start with, I'd just be happy with a band-aid "seriously why the fuck do we need to spell this out" rule preventing shit like in the OP where they already get hit harder than the criminal in question almost every single time, if said criminal even gets tagged at all. Ideally, yes, I'd be happy to see further mitigation for the hacker scale with the severity of the exposed crime.

edited 17th Aug '13 11:13:49 PM by Pykrete

When it comes to hacking "for great justice", I'm not sure we should let people off for breaking the law to expose crimes. We don't let a man off for, say, murdering the guy who raped his daughter...even though the murder victim did commit a crime, he who killed him also committed a crime. Letting citizens find their own version of justice generally results in a messy situation, which is probably the reason why humanity invented police, courts and due process of law.

Let's not forget the logic upon which our justice system was founded.

edited 18th Aug '13 12:51:05 AM by drunkscriblerian

If I were to write some of the strange things that come under my eyes they would not be believed. ~Cora M. Strayer~

All the same, our current legal channels are outrageously broken and hilariously biased in favor of the status quo. Whistleblower protections have been stripped at nearly all levels over the last couple decades, and the courts that preside on them rule against whistleblowers in over 98% of cases. And while I totally understand the hacker in the OP getting hit with something, getting raided at gunpoint by a SWAT team and imprisoned a full order of magnitude longer than the rapists he exposed is just bugfuck insane.

edited 18th Aug '13 1:13:41 AM by Pykrete

When the rules stop working, change the rules. That's a fundamental tenet of engineering. Our problem is not the rules, its society's unwillingness to alter said rules in the face of a changing world...to say nothing of a government that seems willing to itself bend the rules to protect its own bullshit interests.

Still not sure I can support vigilantism though. History has shown that breed of thinking to have its own variety of collateral damage.

If I were to write some of the strange things that come under my eyes they would not be believed. ~Cora M. Strayer~

Well, yeah, it amounts to helping the badguys do bad stuff. Of course, this assumes the existence of badguys with the intention to do bad stuff. Which is a pretty good assumption in the world right now, but we have to be careful we aren't treating it like a law of physics or something.

The real problem is, who gets to define who the badguys are, and what the bad stuff is? For instance, the NSA officials are currently going around claiming that exposing PRISM (not with any details, but just about the system in general) is a 'major national security breach' that will 'cost the lives of american soldiers' or whatever, even though there's no obvious way that a terrorist would make use of the limited amount of information that was actually revealed. Are these officials the people who get to decide? Alternatively, if an american publishes information online about Apple engaging in abusive business practices, and that causes the american economy to shrink by $5 billion, does that mean it constitutes an attack on the american economy? If the $5 billion loss percolates through to government funding and reduces the military budget by $100 million, does it then constitute an attack on the american military? There are many different ways this sort of thing could be spun in order to favor censorship.

I think part of the idea here, though, is kind of along the lines of sticks and stones logic. That is to say, information by itself inherently harms no one. It takes somebody else acting on that information to cause real harm. A person posting information about someone online is a very different sort of vigilante justice from a person taking a gun and going out and shooting somebody. Lumping them together, and assuming they have the same outcomes, only serves to confuse the issue.

This also raises the question: Would it be worthwhile encouraging informational vigilantism in order to provide an alternative to (supposedly more destructive) violent vigilantism? To me, a world full of people posting dirt on each other sounds much preferable to a world full of people shooting each other.

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I think its funny that people think the Internet is somehow more civilized in its activism or its behavior. Honestly, that's so cute I would fold it up and wear it in my hair if I happened to be female.

The truth is that the Internet is no more civil than a group of angry peasants trading rumors in the town square. And my observation is thus; once the torches are lit and the pitchforks are raised, no one tends to give much of a shit about the facts...because facts are inconvenient and righteous anger feels awesome.

Despite this wonderful technological achievement we've constructed, humans are the same creatures they were a couple hundred years ago...which means we're vulnerable to the same manipulative tactics that those in the know have employed against the masses since the first revolutionary toppled the first weak leader. Funny how the revolution tends to resemble the establishment on a long enough timeline.

People want to treat hacktivists like they're something special...they aren't. They're just a recent spin on a very old concept. Just like those who support them are the same spin on the same old idea.

Oh, and just because the shooting is happening outside your perception doesn't mean it stopped happening. It's just harder to perceive, which makes it more acceptable. Blood spilled a thousand miles away means less than blood coming out of my sister's arm.

That's how humanity rolls.

If I were to write some of the strange things that come under my eyes they would not be believed. ~Cora M. Strayer~

Honestly I think Bradley Manning should have been hanged, myself.

One may lead to the other — or at the very least, character assassination.

Keep Rolling On

I like this one. At the very least, a whistleblower should be vindicated if they're exposing a violation of law that could not be otherwise exposed. (Which would probably mean that Snowden is hosed.)

Nein. You need five Justices to make a decision, but only four to hear one. And on the current Court, there are four justices who are sworn to one party, four more who have pledged fealty to another, and one guy who is moderately aligned with one side but likes to make up his own mind.

All you need for an SC case to be accepted is four justices. So, for example, Snowden could be released by the four liberal justices even if they knew they wouldn't get anywhere.

@Drunk Scriblerian: Well, there you kind of have to pick your poison, don't you? If the existing system has become too corrupt to be fixable, you can either tolerate it, or you can fight it by going outside and against it.

edited 18th Aug '13 4:01:13 AM by Ramidel

I despise hypocrisy, unless of course it is my own.

No way... I hate passive aggressive gossip.. I like problems I can openly confront.. Even if it doesn't involve shooting.

Last thing I want is for the entire world to be like a cubicle farm at a civilian job.

More civilized? Maybe not. Less deadly? Absolutely.

On the other hand, I've also repeatedly seen the 'let's all calm down and be civil' argument used by greedy, evil people (or their supporters) as an attempt to hold off the justice that should be brought down upon them and to buy more time to profit from their harmful activities. There's a balance to be struck. You'll never be omniscient, but sooner or later you have to take action despite inevitable gaps in your knowledge.

What does 'character assassination' really mean, though? In the cases when it doesn't actually reflect the facts, doesn't it then rely on people being gullible and jumping to conclusions in order to work at all? Kinda the main point of transparency is to free all the facts so that disinformation can be properly countered.

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Here's the Oxford definition:

That's rather naive — you're assuming once people are told what might be the truth they'd actually listen? They might not simply believe what is the truth — the (half?-)lies may have been delivered by a more trustworthy person, or just plain sound better — and people will believe that, whatever you tell them.

Not everyone is a Straw Vulcan.

Keep Rolling On

I like direct action too.

But remember;

Occupy Wall Street failed & was crushed by the bankers security, unarmed protestors hosed by huge pepper spray weapons (they are meant to be sprayed at a distance against a crowd, not inches from a chained persons face! And one news clip showed several police focus on clubbing a small asian woman with nightsticks before other protestors were able to shield her, they focused on her specifically)

Whereas Manning & Snowden have caused MASSIVE harm to the corrupt secret keepers in high places.

2 men were able to do far more than tens of thousands. And Snowden can continue to leak... and leak... and leak... plus he (unlike manning) was able to flee to the only country with the balls to protect him (likely for the lulz, Putin seems to be having fun at Obama's expense)

What do you all think about this:

Exposure of illegal activity would be absolutely protected via a whistleblower provision.

HOWEVER, charges based on the consequences of that exposure would not be protected - you could still be charged with, say, reckless endangerment or being an accessory to fraud.

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I would generally agree with Pykrete's assessment. However, I would also add:

"If a whistleblower has revealed information with no public interest in its publication, he or she shall not necessarily be protected from the legal consequences of the release of that information merely because he or she has also revealed information in the public interest."

Seems too open to abuse by the state. Reckless endangerment and fraud can put you away for a very long time. I would simply say that illegality grants the whistleblower protection from the consequences of the information leaked.

edited 18th Aug '13 12:06:59 PM by Achaemenid

Schild und Schwert der Partei

I can sort of see your point; if they can get a jury to agree. And if the consequences of releasing information actually do endanger people or allow others to commit fraud, I would want someone to seriously think twice before doing so and face that.

But if the only bar is that the method of getting the information is illegal or classified, and the only natural consequences are embarassment... your behind would be covered.

edited 18th Aug '13 12:53:43 PM by TheGirlWithPointyEars

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What's missing here is some exploration of what the whistleblower is being accused of in the first place. "Whistleblowing" itself is not illegal. The next question is when, and to what degree, someone accused of something can use "whistleblowing" as their defense.

I would expect most whistleblowers to be accused of either stealing the information or revealing secrets of some kind. I think these two situations are different. Lostutter was accused of stealing the information ("hacking"). If the crime he was revealing was significantly worse than the crime of stealing the info in the first place, then I could see giving blanket immunity: "Not guilty by reason of whistleblowing"- or something similar to that.

Revealing state secrets is a different crime, and a different set of expectations. Revealing a criminal act by a gov't agency might exonerate the whistleblower, then again it might not. Lots of people seem to feel that Snowden deserves a break while Manning does not, for example. This type of situation may have to be adjudicated on a case by case basis- taking into account the harm caused by the leaker vs. the harm caused by the agency being "leaked". It may require the implementation of a special tribunal of some kind to decide that.

BTW- thanks for starting this thread, OP, I like it!

edited 18th Aug '13 1:14:48 PM by DeMarquis

"We learn from history that we do not learn from history."