5 ms·

US federal regulations are full of laws that take something minor or completely legal, and add huge punishments because someone used technology. All the way ba

US federal regulations are full of laws that take something minor or completely legal, and add huge punishments because someone used technology. All the way back in 1952, fraud punishments were worse if someone used a telephone to commit fraud. In 1982 the Computer Fraud and Abuse Act added even more punishment, if someone used a computer. Fraud is bad, and it should be illegal, but why have different punishments based on what technology someone used? Laws like this go outside of fraud, and often are clearly unconstitutional, like the Unlawful Internet Gambling Enforcement Act of 2006, which made lawful gambling illegal too, until it was effectively overturned with Murphy v. National Collegiate Athletic Association in 2018.

xoa 1y ago
>but why have different punishments based on what technology someone used? So first as foundation, I see no reason to pretend that the law is always perfectly thought through and logical particularly when it comes to crime. And even when laws have been done for the time, that also doesn't mean circumstances haven't changed over the decades while the law remained static. That said, in principle punishment embodies multiple components and a major aspect is deterrence. The deterrence value in turn interplays with components like barrier to entry, scaling of the potential harm and the likelihood of getting caught. Usage of technology can have a significant impact on all of this. It's significantly more challenging and expensive to prosecute crimes that stretch across many jurisdictions, technology can also have a multiplier effect allowing criminal actors to go after far more people, both in terms of raw numbers and in terms of finding the small percentage of the vulnerable, and perceived anonymity/impunity can further increase number of actors and their activity levels. It also has often implied a higher degree of sophistication. All of that weighs towards a higher level of punishment even as pure game theory. That doesn't mean the present levels are correct or shouldn't be only a part of other aspects of fighting fraud that depressingly frequently get neglected, but it's not irrational to punish more when criminals are generating more damage and working hard to decrease the chance of facing any penalties at all.
- aleph_minus_one 1y ago
  > So first as foundation, I see no reason to pretend that the law is always perfectly thought through and logical particularly when it comes to crime. You will of course never reach perfection, but considering that when a law is applied, a lot of violence (police, jail, ...) gets involved, a politician who does not dedicate his life towards making the laws as perfect as humanly possible (with the ideal of finding an imperfection in the laws as big of a human breakthrough as the dicovery of quantum physics or general relativity) clearly does not deserve to be elected.
  - coldtea 1y ago
    >a politician who does not dedicate his life towards making the laws as perfect as humanly possible (...) clearly does not deserve to be elected. Oh, sweet summer child. Not attempting to make laws "as perfect as humanly possible" is the least of our worries with politicians! Most of them dedicated their life actively towards the opposite, to make the laws as bad as posisble: out of ideology, out of being paid by lobbies and monopolies, personal interest, and so on.
terminalshort 1y ago
The governing bureaucrats of the post WWII period have decided that the limited government of the previous era does not give them the level of control over citizens lives that they want. They know that rolling back existing protections is difficult politically since those pesky citizens don't know what's good for them. So our ruling betters need to be a bit more clever. They stoke fear over criminals being out of control because they are using scary new technology that the police just can't handle. Therefore we need to pass harsh new laws to control it. Of course over time that "scary new technology" becomes the routine way everybody communicates, but now without the legal protections that the old system had.
- 3037412197 1y ago
  [dead]
tptacek 1y ago
The big problem with CFAA isn't particular to CFAA at all; it's that it shares the 2B1.1 loss table with all the other federal criminal statutes, and computers are very good and very fast at running the number on that table up. It's a real problem and I'm not pushing back on the idea that something should change about it, but I wouldn't characterize the problem the way you do, as the law singling out crimes involving computers. Part of the history of CFAA was that it was passed because the state of the law preceding it didn't comfortably criminalize things like malicious hacking and denial of service; you can do those things without tripping over wire fraud.
- terminalshort 1y ago
  There ought to just be a blanket criminal law for intentionally causing financial damages to citizens over a certain amount. Fraud is typically a civil matter, but the problem comes when someone causes $5000 of fraud to 200 people, which is made much easier by the internet. It doesn't make financial sense to sue for that amount. If we had a law that intentionally causing $1 million or more of civil damages is also a felony punishable by up to 10 years in prison this would allow DAs to apply well deserved criminal penalties without having the possibility of criminalizing harmless behavior.
  - tptacek 1y ago
    Fraud is almost definitionally not a civil matter. There is civil fraud, but it bears the same relationship to fraud as the Goldman's wrongful death case did to the OJ criminal case.
    - terminalshort 1y ago
      I'm not talking about technical definitions. The fact is that if you have a fraud case in the USA, there's a 99% chance civil court is the only place it's ever going to be filed.
      - tptacek 1y ago
ajmurmann 1y ago
You have to levers to enforce law. You can get better at catching lawbreakers or punish those that are caught harder. There are studies that show that catching a higher percentage of criminals and punishing them in a timely fashion leads to lower crime than punishing those you do catch harder. Europe in general has more police officers per capita and higher conviction rates that happen more timely. The US on the other hand spends more on prisons and has her officers. I think this is partially cultural and due to how responsibilities and finance are set up between local, state and federal government in the US. Fraud via phone or computer is harder to catch. So the US follows it's established pattern and instead of hitting efforts for law enforcement increases punishment
- franga2000 1y ago
  Europe has a similar problem of over-punishing "crimes with a computer". In many EU countries, there's no punishment for trespassing, but even accessing an open network share that you found on Shodan, looking around out of curiosity, then disconnecting, is punishable with prison time.
  - deleted 1y ago
    [deleted]
  - clown_strike 1y ago
    [dead]

xoa 1y ago

>but why have different punishments based on what technology someone used? So first as foundation, I see no reason to pretend that the law is always perfectly thought through and logical particularly when it comes to crime. And even when laws have been done for the time, that also doesn't mean circumstances haven't changed over the decades while the law remained static. That said, in principle punishment embodies multiple components and a major aspect is deterrence. The deterrence value in turn interplays with components like barrier to entry, scaling of the potential harm and the likelihood of getting caught. Usage of technology can have a significant impact on all of this. It's significantly more challenging and expensive to prosecute crimes that stretch across many jurisdictions, technology can also have a multiplier effect allowing criminal actors to go after far more people, both in terms of raw numbers and in terms of finding the small percentage of the vulnerable, and perceived anonymity/impunity can further increase number of actors and their activity levels. It also has often implied a higher degree of sophistication. All of that weighs towards a higher level of punishment even as pure game theory. That doesn't mean the present levels are correct or shouldn't be only a part of other aspects of fighting fraud that depressingly frequently get neglected, but it's not irrational to punish more when criminals are generating more damage and working hard to decrease the chance of facing any penalties at all.

aleph_minus_one 1y ago
> So first as foundation, I see no reason to pretend that the law is always perfectly thought through and logical particularly when it comes to crime. You will of course never reach perfection, but considering that when a law is applied, a lot of violence (police, jail, ...) gets involved, a politician who does not dedicate his life towards making the laws as perfect as humanly possible (with the ideal of finding an imperfection in the laws as big of a human breakthrough as the dicovery of quantum physics or general relativity) clearly does not deserve to be elected.
- coldtea 1y ago
  >a politician who does not dedicate his life towards making the laws as perfect as humanly possible (...) clearly does not deserve to be elected. Oh, sweet summer child. Not attempting to make laws "as perfect as humanly possible" is the least of our worries with politicians! Most of them dedicated their life actively towards the opposite, to make the laws as bad as posisble: out of ideology, out of being paid by lobbies and monopolies, personal interest, and so on.

terminalshort 1y ago

The governing bureaucrats of the post WWII period have decided that the limited government of the previous era does not give them the level of control over citizens lives that they want. They know that rolling back existing protections is difficult politically since those pesky citizens don't know what's good for them. So our ruling betters need to be a bit more clever. They stoke fear over criminals being out of control because they are using scary new technology that the police just can't handle. Therefore we need to pass harsh new laws to control it. Of course over time that "scary new technology" becomes the routine way everybody communicates, but now without the legal protections that the old system had.

3037412197 1y ago
[dead]

tptacek 1y ago

The big problem with CFAA isn't particular to CFAA at all; it's that it shares the 2B1.1 loss table with all the other federal criminal statutes, and computers are very good and very fast at running the number on that table up. It's a real problem and I'm not pushing back on the idea that something should change about it, but I wouldn't characterize the problem the way you do, as the law singling out crimes involving computers. Part of the history of CFAA was that it was passed because the state of the law preceding it didn't comfortably criminalize things like malicious hacking and denial of service; you can do those things without tripping over wire fraud.

terminalshort 1y ago
There ought to just be a blanket criminal law for intentionally causing financial damages to citizens over a certain amount. Fraud is typically a civil matter, but the problem comes when someone causes $5000 of fraud to 200 people, which is made much easier by the internet. It doesn't make financial sense to sue for that amount. If we had a law that intentionally causing $1 million or more of civil damages is also a felony punishable by up to 10 years in prison this would allow DAs to apply well deserved criminal penalties without having the possibility of criminalizing harmless behavior.
- tptacek 1y ago
  Fraud is almost definitionally not a civil matter. There is civil fraud, but it bears the same relationship to fraud as the Goldman's wrongful death case did to the OJ criminal case.
  - terminalshort 1y ago
    I'm not talking about technical definitions. The fact is that if you have a fraud case in the USA, there's a 99% chance civil court is the only place it's ever going to be filed.
    - tptacek 1y ago

ajmurmann 1y ago

You have to levers to enforce law. You can get better at catching lawbreakers or punish those that are caught harder. There are studies that show that catching a higher percentage of criminals and punishing them in a timely fashion leads to lower crime than punishing those you do catch harder. Europe in general has more police officers per capita and higher conviction rates that happen more timely. The US on the other hand spends more on prisons and has her officers. I think this is partially cultural and due to how responsibilities and finance are set up between local, state and federal government in the US. Fraud via phone or computer is harder to catch. So the US follows it's established pattern and instead of hitting efforts for law enforcement increases punishment

franga2000 1y ago
Europe has a similar problem of over-punishing "crimes with a computer". In many EU countries, there's no punishment for trespassing, but even accessing an open network share that you found on Shodan, looking around out of curiosity, then disconnecting, is punishable with prison time.
- deleted 1y ago
  [deleted]
- clown_strike 1y ago
  [dead]