The Problem Is Not Whether Breaking The Law
Cloud Society: Case Law and the Cloud
Can legal frameworks respond to the TMI society?
When Hunter S. Thompson first wrote, “In a closed society where everybody’s guilty, the only crime is getting caught,” he clearly wasn’t taking into account the impact that technology would have over the following forty years, on both crime and its consequences.
Crime and Punishment
Crime is not absolute, and it never has been. We laugh at the incongruities of older legal frameworks and raise an eyebrow at the punishments still present in some societies, all the while feeling assured that whatever our cultures disallowed in the past, however draconian the remedies, we are (oh, so!) much more civilised now.
The fact is, however, that the human animal is no more criminal, nor noble, than it ever was. Each country creates its own legal frameworks according to factors including what its citizens feel able to tolerate at the time, the impact of any incidents and, indeed, the ease with which perpetrators can be caught.
In the UK, for example, it wasn’t all that long ago that it was illegal to be commit adultery, or even more recently, to be openly gay. Homosexuals didn’t suddenly stop being criminals in July 1967; rather, society (as represented by the government of the time) widened its goalposts to accommodate what it perceived as acceptable behaviour.
Meanwhile we have ‘illegal activities’ such as speeding – in quotes because of their utter variability by country. The motorway speed limit is set at 130kph (about 80mph) on the continent, or 110kph (70mph approx.) if it rains. Everyone breaks the rules. Last year the UK government proposed to raise UK speed limits 80mph on the basis of “restoring the legitimacy of the speed limit.” Yet critics agued it would simply mean more people would drive at 90mph – both standpoints highlighting the perception that the limit is seen as a guiding hand, rather than an absolute indicator of criminality.
Crime and punishment go hand in hand and similarly, punitive measures available to judges have changed over the years. We no longer have the death penalty in the UK, and the measure remains rightly controversial in countries where it is practiced. Punishment, be it a fine, incarceration, community service or whatever, aims to serve consequences to the convicted, recompense the victim and discourage anybody who might be considering a similar path.
As such, a punishment can increase for a similar crime if a judge, or government deems that additional discouragement is necessary – a situation we saw clearly (LINK: http://www.guardian.co.uk/commentisfree/libertycentral/2011/jan/24/deterrent-sentences-edward-woollard) at the time of the 2011 riots.
Technology – the amplifier in the sky?
What’s all this got to do with technology? The fact is, against such a many-faceted, context-sensitive and interpretation-based background, we are quite suddenly able to catch a great many more folks at it. At the same time, society’s voice has become several decibels louder – and more reactive – by virtue of the all-amplifying Internet.
The former point goes to the very roots of how our legal system was set up. Of course some crimes lie way beyond the threshold of what might be considered ‘minor’, and the role of technology in taking the bad guys down is not to be underestimated. Equally, many minor crimes are already categorised as such, and dealt with accordingly.
A broader category of illegal behaviour exists, determined largely by society’s desire to influence the activities of its citizens. Speeding is one example; use of certain substances is another – as illustrated by various attempts to reclassify cannabis, for example. Some acts are not actually damaging in themselves, but pose a perceived risk – incitement, for example, or negligence. No absolutes exist in such cases; rather, a value judgement needs to be made which will tend to reflect the times.
Which brings to society’s increasingly loud voice. That individuals can make their views heard is generally applauded – activist sites are now able to case a much brighter light onto despots, dodgy dealings and indeed, miscarriages of justice. The media also pick up cases and run with them, whipping up interest based on the judgement of editors as to what their readerships might want, for better or worse. Faced with such a clamour, it is unsurprising that judges feel obliged to respond.
We’ve seen a number of examples in recent times that highlight the dangers of these converging factors. The case of Paul Chambers for example, whose ‘joke’ on Twitter about Robin Hood airport led to him losing his job and gaining a criminal record. No damage was intended, nor done, nor indeed likely – yet Mr Chambers was used as an example to others, for deterrent effect. The verdict is still in the courts, being appealed again after a High Court decision.
Or Jacqueline Woodhouse, jailed for 21 weeks having launched a racist tirade at an unfortunate victim, all of it captured on a mobile phone. The fact she was drunk at the time did little to help her defence. Or Liam Stacey, whose wholly despicable (and apparently alcohol-fuelled) remarks about critically ill footballer Fabrice Muamba earned the student a 56-day sentence.
Or indeed, Jordan Blackshaw and Perry Sutcliffe-Keenan, the likely lads jailed for four years each for incitement to riot, having created the Facebook event “Smash d[o]wn in Northwich Town” in August 2011. The fact that no such event took place was seen as irrelevant by the judge; according to Eric Pickles, then Communities Secretary, “exemplary sentences” were necessary – his statement reflecting the general horror of the time, that such rioting took place.
Can we handle the truth?
While each of the above decisions is the topic of debate – indeed, that’s why we have courts of law, to enable such discussions to take place – they share several characteristics: that they only came to light thanks to the technologies we have in place; that they involved outbursts or misguided statements; that sentencing took into account the times in which the statements were made.
Another consequence is that – by design – the sentences influence society’s behaviour down the line. Surprising it may be to the interconnected, but many people are yet to discover the joys of social networking and are still to learn what is a nascent moral code about life online. We have still to agree, for example, what is acceptable and what is not – as illustrated by the tirade of unprintable, highly abusive language directed at Joey Barton following his recent on-pitch aggression, or indeed Louise Mensch simply for having the audacity to say what she believed.
Nobody was prosecuted for their participation in what amounted to blatant online bullying – no cases were brought. Maybe they should have been. But meanwhile, the prosecutions of others, sometimes simply because their statements can be interpreted according to laws drawn up long before the existence of the Internet, that most public of places, need equally careful consideration.
Not least because we haven’t even scratched the surface. Technology isn’t finished – indeed, in fifty years time we will likely look back and chuckle at just how primitive we were. New developments in face recognition, data aggregation and analysis, the increasing use of embedded cameras, each innovation offers new ways of finding things out, of capturing and sharing the moment, of linking one piece of information with another. Even today, for example, mobile phone companies hold all the information anyone needs to determine when any citizen has been speeding. All it needs is a sub-poena.
It’s not Big Brother we need to worry about, it’s the scurrying mass of little sisters, each with a tale to tell. Right now, many people still act like such innovations had not yet happened but it would appear that ignorance is no defence. To return to the case of Mr Chambers, it’s not just whether his act was ‘criminal’, but also the impact it has on anyone else who now feels a little less inclined to express humour in case it is misconstrued.
Raising the debate
Of course we all need to be responsible for our actions, online and offline; of course we need to take into account the victims; and of course we all want to live in a safe, just and open society in which the perpetrators of bad things face the consequences of their actions. Internet trolling (LINK: http://www.bbc.co.uk/news/uk-england-kent-17900962), cyber bullying and other despicable online activities are no less crimes simply because they use the Internet.
However, even if we manage to avoid the surveillance society, we are being drawn inexorably towards a more transparent world in which the smallest actions can be logged. During this historically interim period in which technology is having such an unprecedented impact, we should be actively debating the legal side effects – in parliament if necessary – of that fact that we are all more publicly visible than we may understand, or indeed intend. Such deep questions as these require a full treatment, and we should not simply leave them to context-sensitive case law.
To end on a positive note, in the UK at least we can feel fortunate that we live in a more liberal part of the world – not every occupant of the global village is so lucky. For this very reason we need to take appropriate steps now, to ensure that we continue to benefit from such luxuries as . Otherwise, if Hunter S. Thompson is right, we’re going to need a lot of jails.