4 ms·

> But the breadth and vagueness of the existing law... My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the nece

by polemic 14y ago

> But the breadth and vagueness of the existing law... My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the necessary case law to interpret it. The current law absolutely needs to be addressed, but 'computer law' will always be 10 steps behind the technology. The much bigger issue is the fundamentally flawed, inhumane and insanely expensive US justice system.

sliverstorm 14y ago
Agreed, this is part of why we have judges! Besides, if you think law is a tortured convoluted process today- just wait until we try to write it to explicitly handle every possible corner case. The reason our laws have held up fairly well thus far is because they are vague. For example, the "reasonable person" clauses. What is considered reasonable changes with time. Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades? Remember, the legal system is not a computer. It doesn't necessarily make sense to approach it like one. Many of us here are programmers, and sometimes it shows.
- gyardley 14y ago
  Is approaching our body of laws like a programmer necessarily a bad thing? I'm being a bit tongue in cheek here, but to use your example - if only our body of laws were properly DRY, changing that precisely-defined 'reasonable person' would only require one tweak.
- betterunix 14y ago
  "Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades?" Yes, and in fact, I would like every law to expire no more than 10 years after it is passed. We have too many laws and too many ways to become a criminal; force politicians to spend their days renewing necessary laws and we'll curb our out-of-control legal system. Keep the legal system straightforward, so that nobody is confused about whether or not they are committing a crime. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police (let's start by reducing the power of their firearms -- we really don't need soldiers serving search-and-arrest warrants).
  - sliverstorm 14y ago
    If this was such a great way of doing things, why don't we programmers (who of course have everything all figured out) already do this in our code? Have a harvester that regularly walks your VCS and deletes any function older than 1 year. Sound like fun? Keep the legal system straightforward Being explicit is not the way to achieve that. Explicit handling of corner cases is always confusing when there are many, even more so when you are speaking in legaleese. "Reasonable Person" codified explicitly would take pages and pages and pages. You think that would be more understandable to the layman than, "What a Reasonable Person would do"? If Real Life and People could be so easily codified, heuristics would be a completely useless field. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police What does that have to do with this line of discussion?
    - betterunix 14y ago
      "Have a harvester that regularly walks your VCS and deletes any function older than 1 year. Sound like fun?" Periodically reviewing code to ensure it still does what it needs to do is not exactly unheard of, and neither is replacing old code with new code. It is how we keep our software up-to-date. How about the flip side: how would you like to have no code ever erased -- how would you like to spend your time supporting code written 50 years ago side-by-side with code written yesterday? That is what our legal system is like right now: laws that made sense decades ago, laws that made no sense decades ago, laws that were passed this year, etc., all relevant and applicable today. The government cannot even count the number of laws on the books at this point. "Explicit handling of corner cases" How about not bothering with corner cases? Let people whose actions seem criminal but which do not meet the definition of any crime go free. Do we really need to prosecute every single person who does something we do not like? Our justice system is supposed to favor innocence, not guilt. Yet we see the exact opposite happen with the "let's make sure we never have corner cases by being as broad as we can be" approach to law. The point is for laws to have a clear boundary between innocence and guilty. Nobody should be unsure about whether or not they are breaking the law and we should not be relying on a handful of judges to make such determinations. ""Reasonable Person" codified explicitly would take pages and pages and pages." Sounds like the real problem here is that we have laws based on what "reasonable people" do, which is a pretty conservative approach to law. Why should the law be concerned with "reasonable people" -- why shouldn't the law just clearly state which actions are illegal and which are not? We seem to be pretty straightforward sometimes. We define BAC limits for DUI laws. Why not be straightforward about computer crime too? Why not be straightforward about all laws? You are right, most people cannot understand pages and pages of laws -- so what are we supposed to do with the current legal system? You walk down the street at the mercy of the policy, because in reality you have no idea which laws you might have broken or which laws you were expected to follow. What would a reasonable person do? A reasonable person would get a job, climb the social ladder, and never complain about it. Reasonable people in the 19th century would not have complained about women not having the right to vote. Reasonable people in the 18th century would not have complained about the triangle trade or slavery in general. Reasonable people would not have rebelled against British rule, nor written the Magna Carta. Laws should not be based on what reasonable people would or would not do; laws should be based on ensuring that people can continue to enjoy their freedom. "What does that have to do with this line of discussion?" I suppose that last comment was only tangentially related. The combination of broad laws, powerful prosecutors, and plea bargaining are the reason America is the world leader in imprisonment. Most of our prisoners never received a trial, because they odds were so severely stacked against them that they just accepted the plea bargain on the advice of their lawyers (often overworked public defenders). This is not a theoretical problem, it is the reality of our justice system and of our society.
AnthonyMouse 14y ago
>My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the necessary case law to interpret it. I don't think that is a necessity at all. What it is is a trade off. Compare tax law with antitrust law. There is relatively little vagueness in tax law, which is why the statutes are so verbose (or vice versa). Antitrust is technically "statutory" in that Congress passed the Sherman and Clayton antitrust acts etc., but the statutes are very short and very broad and their meaning has been defined almost entirely by the courts. Each has advantages and disadvantages, but going too far in either direction is disastrous. (Which is why both tax and antitrust are a huge mess.) And that's where we are with the CFAA. The statute doesn't designate any particular harm you have to be aiming to cause, it just says "access without authorization -> felony conviction" regardless of whether you stole anything or hurt anyone or intended anything malicious, etc. It encourages courts and juries to think in terms of whether you violated the letter of the statute rather than whether you did anything specifically objectionable, and assume that any such violation must be a terrible crime worthy of that level of penalty without requiring any evidence that the circumstances of the specific case justify that outcome. I honestly think we could repeal it entirely without any negative consequences following, because the actually objectionable things that people can do after they access a computer without authorization would still be separately illegal. >'computer law' will always be 10 steps behind the technology. I'm not at all sure that this is true. Most "computer law" is redundant garbage: There are laws against fraud, espionage, copyright infringement, etc. Those laws don't inherently become obsolete just because you add "on a computer" to it. Perhaps they need to be adjusted in certain ways -- often as a result of economic changes brought about by technology -- but that is no excuse for having a duplicate set of expansive, poorly drafted laws with extraordinary penalties that aim to serve substantially the same purposes as those that have been time tested over hundreds of years.
betterunix 14y ago
"of necessity, most laws are broad and vague" What necessity drives us to such laws? Perhaps the prison operator industry considers such laws to be a necessity, or maybe the police officers' unions, but in what way does our society need laws that are so broad that nobody knows whether or not they are actually following them? How about we make laws as narrow as possible, just enough to cover heinous crimes, and let people live their lives? Nobody should be confused about whether or not they are following the law. Laws should be clear, and should not require years of education and decades of experience to understand. What would be wrong with that? Are you worried that creepy people you do not like will not be arrested because they found a path through the law that allowed them to be creepy without being criminal? Why should that be worrisome? Such people are common in the financial world, and the rate of clinical psychopathy is higher amongst corporate executives than among the general population -- why do you think corporate bosses have teams of lawyers helping to guide them through business decisions? Why shouldn't ordinary people be able to say with certainty, "This action will not get me arrested?" The problem with having laws as broad as we have now is that anyone who is different becomes a victim. The government does not just go around selecting random people to prosecute, despite having the legal power to do so. Instead, the government has a weapon that can be used to keep the population in line. Dare to speak up, dare to take a stand against those in power, and you become a target. It happens over and over again: whenever someone uses their skills in a way that does not fit the neat model of "get a job or start a business" they become a target, and the moment they try to take on the system or fix the problems we have, the hammer strikes and strikes hard.
Nitramp 14y ago
> My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the necessary case law to interpret it. Not if you're living in Continental Europe, where case law doesn't exist, precedence rarely matters, and all law is statutory law. German law had to be amended for certain cases of computer criminality, e.g. illegally obtaining access to data which was impossible before without breaking into a building and stealing physical documents, so it was usually covered by theft before; or destroying data, which was just destroying physical things before. There were also problems around faking access tokens which is a bit like faking a document (think passport), but really not the same thing. But there is no special case for something like computer fraud, that's just covered by regular fraud. Edit: I stand corrected, there's actually a law about computer fraud: http://dejure.org/gesetze/StGB/263a.html http://dejure.org/gesetze/StGB/263a.html, though it's essentially a reference to the law about regular fraud. The difference is apparently that fraud is defined as tricking _somebody_, and computer fraud happens without tricking a human person (but rather a program).

by polemic 14y ago

sliverstorm 14y ago

Agreed, this is part of why we have judges! Besides, if you think law is a tortured convoluted process today- just wait until we try to write it to explicitly handle every possible corner case. The reason our laws have held up fairly well thus far is because they are vague. For example, the "reasonable person" clauses. What is considered reasonable changes with time. Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades? Remember, the legal system is not a computer. It doesn't necessarily make sense to approach it like one. Many of us here are programmers, and sometimes it shows.

gyardley 14y ago
Is approaching our body of laws like a programmer necessarily a bad thing? I'm being a bit tongue in cheek here, but to use your example - if only our body of laws were properly DRY, changing that precisely-defined 'reasonable person' would only require one tweak.
betterunix 14y ago
"Do you really want to have to re-write all the laws centered around "reasonable person" every couple decades?" Yes, and in fact, I would like every law to expire no more than 10 years after it is passed. We have too many laws and too many ways to become a criminal; force politicians to spend their days renewing necessary laws and we'll curb our out-of-control legal system. Keep the legal system straightforward, so that nobody is confused about whether or not they are committing a crime. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police (let's start by reducing the power of their firearms -- we really don't need soldiers serving search-and-arrest warrants).
- sliverstorm 14y ago
  If this was such a great way of doing things, why don't we programmers (who of course have everything all figured out) already do this in our code? Have a harvester that regularly walks your VCS and deletes any function older than 1 year. Sound like fun? Keep the legal system straightforward Being explicit is not the way to achieve that. Explicit handling of corner cases is always confusing when there are many, even more so when you are speaking in legaleese. "Reasonable Person" codified explicitly would take pages and pages and pages. You think that would be more understandable to the layman than, "What a Reasonable Person would do"? If Real Life and People could be so easily codified, heuristics would be a completely useless field. Eliminate plea bargaining. Reduce the power of prosecutors, and reduce the power of the police What does that have to do with this line of discussion?
  - betterunix 14y ago
    "Have a harvester that regularly walks your VCS and deletes any function older than 1 year. Sound like fun?" Periodically reviewing code to ensure it still does what it needs to do is not exactly unheard of, and neither is replacing old code with new code. It is how we keep our software up-to-date. How about the flip side: how would you like to have no code ever erased -- how would you like to spend your time supporting code written 50 years ago side-by-side with code written yesterday? That is what our legal system is like right now: laws that made sense decades ago, laws that made no sense decades ago, laws that were passed this year, etc., all relevant and applicable today. The government cannot even count the number of laws on the books at this point. "Explicit handling of corner cases" How about not bothering with corner cases? Let people whose actions seem criminal but which do not meet the definition of any crime go free. Do we really need to prosecute every single person who does something we do not like? Our justice system is supposed to favor innocence, not guilt. Yet we see the exact opposite happen with the "let's make sure we never have corner cases by being as broad as we can be" approach to law. The point is for laws to have a clear boundary between innocence and guilty. Nobody should be unsure about whether or not they are breaking the law and we should not be relying on a handful of judges to make such determinations. ""Reasonable Person" codified explicitly would take pages and pages and pages." Sounds like the real problem here is that we have laws based on what "reasonable people" do, which is a pretty conservative approach to law. Why should the law be concerned with "reasonable people" -- why shouldn't the law just clearly state which actions are illegal and which are not? We seem to be pretty straightforward sometimes. We define BAC limits for DUI laws. Why not be straightforward about computer crime too? Why not be straightforward about all laws? You are right, most people cannot understand pages and pages of laws -- so what are we supposed to do with the current legal system? You walk down the street at the mercy of the policy, because in reality you have no idea which laws you might have broken or which laws you were expected to follow. What would a reasonable person do? A reasonable person would get a job, climb the social ladder, and never complain about it. Reasonable people in the 19th century would not have complained about women not having the right to vote. Reasonable people in the 18th century would not have complained about the triangle trade or slavery in general. Reasonable people would not have rebelled against British rule, nor written the Magna Carta. Laws should not be based on what reasonable people would or would not do; laws should be based on ensuring that people can continue to enjoy their freedom. "What does that have to do with this line of discussion?" I suppose that last comment was only tangentially related. The combination of broad laws, powerful prosecutors, and plea bargaining are the reason America is the world leader in imprisonment. Most of our prisoners never received a trial, because they odds were so severely stacked against them that they just accepted the plea bargain on the advice of their lawyers (often overworked public defenders). This is not a theoretical problem, it is the reality of our justice system and of our society.

AnthonyMouse 14y ago

>My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the necessary case law to interpret it. I don't think that is a necessity at all. What it is is a trade off. Compare tax law with antitrust law. There is relatively little vagueness in tax law, which is why the statutes are so verbose (or vice versa). Antitrust is technically "statutory" in that Congress passed the Sherman and Clayton antitrust acts etc., but the statutes are very short and very broad and their meaning has been defined almost entirely by the courts. Each has advantages and disadvantages, but going too far in either direction is disastrous. (Which is why both tax and antitrust are a huge mess.) And that's where we are with the CFAA. The statute doesn't designate any particular harm you have to be aiming to cause, it just says "access without authorization -> felony conviction" regardless of whether you stole anything or hurt anyone or intended anything malicious, etc. It encourages courts and juries to think in terms of whether you violated the letter of the statute rather than whether you did anything specifically objectionable, and assume that any such violation must be a terrible crime worthy of that level of penalty without requiring any evidence that the circumstances of the specific case justify that outcome. I honestly think we could repeal it entirely without any negative consequences following, because the actually objectionable things that people can do after they access a computer without authorization would still be separately illegal. >'computer law' will always be 10 steps behind the technology. I'm not at all sure that this is true. Most "computer law" is redundant garbage: There are laws against fraud, espionage, copyright infringement, etc. Those laws don't inherently become obsolete just because you add "on a computer" to it. Perhaps they need to be adjusted in certain ways -- often as a result of economic changes brought about by technology -- but that is no excuse for having a duplicate set of expansive, poorly drafted laws with extraordinary penalties that aim to serve substantially the same purposes as those that have been time tested over hundreds of years.

betterunix 14y ago

"of necessity, most laws are broad and vague" What necessity drives us to such laws? Perhaps the prison operator industry considers such laws to be a necessity, or maybe the police officers' unions, but in what way does our society need laws that are so broad that nobody knows whether or not they are actually following them? How about we make laws as narrow as possible, just enough to cover heinous crimes, and let people live their lives? Nobody should be confused about whether or not they are following the law. Laws should be clear, and should not require years of education and decades of experience to understand. What would be wrong with that? Are you worried that creepy people you do not like will not be arrested because they found a path through the law that allowed them to be creepy without being criminal? Why should that be worrisome? Such people are common in the financial world, and the rate of clinical psychopathy is higher amongst corporate executives than among the general population -- why do you think corporate bosses have teams of lawyers helping to guide them through business decisions? Why shouldn't ordinary people be able to say with certainty, "This action will not get me arrested?" The problem with having laws as broad as we have now is that anyone who is different becomes a victim. The government does not just go around selecting random people to prosecute, despite having the legal power to do so. Instead, the government has a weapon that can be used to keep the population in line. Dare to speak up, dare to take a stand against those in power, and you become a target. It happens over and over again: whenever someone uses their skills in a way that does not fit the neat model of "get a job or start a business" they become a target, and the moment they try to take on the system or fix the problems we have, the hammer strikes and strikes hard.

Nitramp 14y ago

> My point is this: of necessity, most laws are broad and vague, and it relies on judges to build the necessary case law to interpret it. Not if you're living in Continental Europe, where case law doesn't exist, precedence rarely matters, and all law is statutory law. German law had to be amended for certain cases of computer criminality, e.g. illegally obtaining access to data which was impossible before without breaking into a building and stealing physical documents, so it was usually covered by theft before; or destroying data, which was just destroying physical things before. There were also problems around faking access tokens which is a bit like faking a document (think passport), but really not the same thing. But there is no special case for something like computer fraud, that's just covered by regular fraud. Edit: I stand corrected, there's actually a law about computer fraud: http://dejure.org/gesetze/StGB/263a.html http://dejure.org/gesetze/StGB/263a.html, though it's essentially a reference to the law about regular fraud. The difference is apparently that fraud is defined as tricking _somebody_, and computer fraud happens without tricking a human person (but rather a program).