Sunday, January 15, 2017

Cyber Crime, or Not Cyber Crime

I came across this interesting hypothetical recently. It poses some fertile ground for debate.

A man - we'll call him P - received a message over the Internet.  It really doesn't matter if it was an email, a tweet, a Facebook message, or whatever. What was important was that, embedded in the message, was a strobing light. He opened the message, the light started to flash and P had a seizure. The hypothetical poses the question, "is there a tort (or, perhaps, a violation of the law) here?"

Let's start with the issues.  First, there is the act of D subjecting P to a strobe light that, in some people - certainly in P it would appear - triggers seizures.

Second, the "delivery" mechanism was the Internet message.

Now the rules.  Assault and battery come to mind. Assault is placing P in apprehension of an imminent harmful contact while battery is the contact itself.

Analysis.  Certainly, assuming that P is aware of what is going to happen but is unable to avoid it, there is a brief period of fear of the consequence of the light. That sounds like assault to me.

However, we may assume that not everyone in the world will suffer seizures from a flashing light. That is a unique response and it is tied to certain types of brain/nervous system disorders. So D had no way of knowing that P would respond as he did. It doesn't matter.  This is an example of the "eggshell skull" that says, basically, D has to take his or her victims as he or she finds them. D is just as liable for an eggshell P as if P was not uniquely susceptible to the flashing light.

It also is battery because the contact occurred.  Now comes the first opportunity for debate... first, is a strobe light flashing in the face of P a "contact"? Let's start with the Restatement (Second) of Torts, §18 cmt c, Battery: Offensive Contact:
Since the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional inviolability and not in any physical harm done to his body, it is not necessary that the plaintiff's actual body be disturbed.
We could argue lack of intent given that D did not intend to harm P. However, he did intend to send the message with the flashing light so the best face we can put on this is negligence on the part of D. There also may be an argument that, while battery might have occurred, it is an open question as to whether it was preceded by an assault.

The next point of debate is whether or not a battery can be delivered over the Internet since there was no direct - or one might argue - indirect contact with P's person, even in the context of Rest. 2d §18 cmt. c. One also might argue, however, that the light did make contact with P, through his eyes, certainly a part of his body. The light was initiated by D and delivered over the Internet so the Internet becomes only a delivery mechanism.

Moving into the theory of law that addresses this hypothetical, we might query such things as legislative and judicial intent in defining the legislative acts and judicial interpretation in case law. Certainly, the intent of laws prohibiting battery is to insure that people can be safe in their persons. 

Also, if we are to consider negligence, we must address foreseeability. Was it reasonably foreseeable that sending a message with flashing lights would cause harm? There is no requirement of which I am aware that requires foreseeability of a specific outcome of a negligent act.  In this case we could consider a number of scenarios where harm might be caused without resorting to an analysis of epilepsy.  

Suppose that a person was driving while reading messages on her mobile phone - never a good idea, of course, and illegal in some jurisdictions - and is pulled up at a stop light. She is so surprised when she opens the message that she takes her foot off of the brake and strikes a pedestrian with her car. There probably are several other scenarios as well.  I think that we can consider that some consequence of D's action is foreseeable.

This hypothetical is an excellent example of those knotty problems that we encounter as the law moves into the realm of cyberspace. An extension of this hypothetical is, can one commit murder over the Internet? For, example, suppose D hacks into a hospital system, accesses critical instruments for preserving life during surgery, and during surgery on victim V the equipment fails and V dies as a result.

The point here is that we need to rethink much of our system of law in the context of cyber science. Knee-jerk reactions to cyber-related crimes or torts is not adequate and there is a real danger of making bad - and, certainly, inconsistent - law as a result.