Taming the Internet Wild
In my 2L year I wrote a student note. It was entitled “Taming the Internet Wild: Punishing and Deterring Virus-Creators and Script Kiddies Through Victim-Offender Mediation.” This was to fulfill the requirements for being on the staff of the Ohio State Journal on Dispute Resolution. On the basis of this note I was asked to write a Recent Development in my 3L year, which was published here. But my student note on computer viruses was not published (for good reason, which I'll explain below).
It was suggested to me that with some modifications this note might be publishable. I haven't had the time to turn it into something of higher quality, but a lot of work went into it which I believe might have some value. The problem with the note is that it is ostensibly about using victim-offender mediation to punish computer virus creators and script kiddies. (“Script kiddies” are the less-experienced members of the “virus underground” who send out viruses they did not create.) Unfortunately I overdid the section on computer virus crime, which makes up the bulk of the student note. The section on applying victim-offender mediation (VOM) is relatively small. So this note provides a good overview of computer viruses and those involved with the crime, but does not fulfill the goal of explaining how VOM is an appropriate and practical punishment for it.
I've thought about turning this note into a blog, and may still do so. I would make each paragraph or each citation into a separate blog post. But that will take some time, and until then I am simply making my unpublished student note available here for downloading. Anyone interested in computer viruses may find it useful. I am no longer sure that the main thesis of the note, namely that VOM would be an effective punishment/deterrent for computer virus criminals, is practical. Readers with an opinion can discuss the validity of this approach in the comments.
Below is the downloadable document, which now has active hyperlinks to those sources that are online. I have also posted the introduction (with footnotes removed). The note is heavy on the viruses, light on the VOM, and as a final product it needs a lot of refining. But it was sufficient to get me credit, and led to the writing and publishing of a Recent Development on a very interesting case, so it served me well. I'm hoping that someone out there might find it useful. Here it is:
When a teenager creates a computer virus, he does not always have the desire to send it out himself. The creation of the virus is often sufficient to give him pleasure. But once he posts his new virus on the Internet he has no control over the “script kiddies,” the less experienced members of the virus underground who download and tinker with other people’s viruses and then send them out “into the wild.” The actual creator of the virus is thus detached from the harm done by its use. As one virus-creator, Dark Avenger, said, “I wrote the virus so it would be killed…. It was not supposed to do all this.” How are such crimes to be punished, when the initiators of the computer viruses can truthfully say that they had no intention of causing the harm that ultimately resulted from their creation? And how does one penalize the script kiddies who often have no realization that the viruses they send out can be catastrophic in their consequences?
Creators and distributors of computer viruses, who are often juveniles, may cause substantial damage far beyond what they envisioned. As a computer security officer has said, “There are people who would never toss a Molotov cocktail into a warehouse, but they wouldn’t think for a second about launching a virus.” To properly punish a young offender who creates or sends out a virus is inherently problematic, because the harm can be so far out of proportion to the criminal act. Just as it has been recognized that cybercrimes in general necessitate new legal considerations, punishment for computer virus crimes requires a new approach.
One possibility is victim-offender mediation (VOM), which has been used to punish juvenile offenders for crimes similar to virus-creation like vandalism. VOM would force the virus-creator or script kiddie to lose his anonymity and confront first-hand the consequences of his actions. This would be a fitting punishment for young people who are oblivious to the damage resulting from their activity. Furthermore, the victims of computer viruses would be enabled to confront the source. Computer users who are frustrated with the onslaught of virus infections would have an opportunity to be part of the system that remedies the harm. Future virus-creators and script kiddies would be deterred, knowing that if they are caught they will have to face their victims. And the state’s interest in punishing and deterring crime would be fulfilled.
This note examines the problem of computer viruses and offers victim-offender mediation as a solution. Computer viruses are defined and explained in Part II. The general scope of the virus problem is described in Part III. Then Part IV examines the virus-creators and script kiddies who are responsible for this new crime. Part V elaborates upon why virus-creation is such a difficult crime to prosecute and punish. And Part VI puts forward victim offender mediation as an effective means of punishment for virus-creators and script kiddies.
[Update: Much thanks to Cathy Gellis for turning my document into a pdf file. That is now the version available for downloading.]