Report from Yale's Digital Cops in a Virtual Environment

James Grimmelman has written up a witty and marvellous con-report from Yale's Digital Cops in a Virtual Environment, wherein a bunch of Internet law-enforcement theorists and practicioners chewed the fat with civ-lib types:

Phil's Commandment Five -- "Criminal sanctions should where necessary deter costly anti-social conduct." -- sounds an awful lot like Bentham's "The general object which all laws have, or ought to have, in common, is . . . to exclude mischief." Similarly, Phil's Commandment Three -- "When traditional crime presents a greater harm to society because it is committed online, that crime should entail a heavier punishment, where possible through neutral means such as measuring the actual damage done" -- has a close resemblance to Bentham's "When two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less."

Now, this is all well and good, but Dan Solove then undermines these simple utilitarian calculations, in exactly the way that two centuries of law and economics have undermined Bentham's calm confidence. It turns out that optimal deterrence is indeterminate: it doesn't spit out clear answers all the time, because you can often make good deterrence arguments for lower punishments. This is what Solove is getting at when he says that constructing identity theft as "theft" undermines the importance of building secure architecture. Dan sees creating vulnerability itself as a harm that needs to be redressed: perhaps the people at "fault" are as much the people using social security numbers as database primary keys, as much as the crackers who steal those numbers.

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