Law X.0

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 But that will take some time, and until then I am simply making my unpublished student note available here for downloading.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:      

   

     Download Taming the Internet Wild

      

I. Introduction

   

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.]

Academic Blogging News

A couple of news items on the academic blogging front:

      

1. The Northwestern University Law Review has begun a new law journal blog. I learned of this via Sentencing Law and Policy. The list of blogs and online extensions by law journals now include: 

• Harvard Law and Policy Review: HLPR Online 
• Harvard Law Review: Forum
• Journal of the Business Law Society (Illinois, Chicago)
• Michigan Law Review: First Impressions 

• Northwestern University Law Review: Northwestern Colloquy

• University of Pennsylvania Law Review: PENNumbra
• Yale Law Journal: The Pocket Part

       

2. Prof. Daniel Solove has completed a new Law Professor Blogger Census. This is Census version 5.1, and has over 300 law professor bloggers. The list is divided up by schools. The Census introduction and law schools A-M are here, and law schools N-Z are here.

    

The introduction contains a lot of useful information, charting the growth of professor blogs since the first census was taken, and noting which schools have the most blogs. One aspect of the Census worth mentioning is how many law professor bloggers are in the Midwest. I'm not able to verify this now, but my guess is that if the U.S. is divided up into traditional regions (New England, Mid-Atlantic, South, Midwest, Southwest, and West), there are more law prof bloggers in the Midwest than anywhere else. This is a slightly unfair method of categorization, since not all regions have as many law schools, and the Midwest includes the Chicago Law Faculty Blog with its 16 bloggers.

         

Many of the more respected and scholarly law prof blogs are located in the Midwest, including:

• Business Law Prof Blog
• Chicago Law Faculty Blog
• Confrontation Blog
• CrimProf Blog
• Equal Vote
• Grotian Moment: The Saddam Hussein Trial Blog (a large group blog, but identified with Case-Western Reserve University)
• Health Law Prof Blog
• IdeoBlog
• International Economic Law and Policy Blog

• Legal Theory Blog

• Sentencing Law and Policy
• TaxProf Blog

If anyone has the time and inclination to break up the blogs (or bloggers) in the Census into regions, please make your results known in the comments and I will post about it later. There are different ways of breaking up the states into regions, but this one appears representative of the typical designations.

Greetings, Charlottesville!

One of the more enjoyable aspects of blogging is that you can easily install a free sitemeter. That way you can learn where your visitors are coming from, and (usually) how they got here.

      

I’ve been getting a few visitors from Charlottesville, Virginia, my original hometown. The collection of six blog articles was linked to by a real estate blog there. I’m posting this greeting because those visitors otherwise have no idea about the personal connection.      

So I’d like to say hello to any visitors from my old hometown. Thanks for coming by, and say hello to Jefferson Country and the Blue Ridge for me.

Six Great Blog Articles

1. Apostles of the Blogosphere (Financial Times)

Blogging as a medium has virtues: speed, spontaneity, interactivity and the vast array of information and expertise that millions of bloggers can bring together. But it also has its vices. The archetypal political blog favours instant response over reflection; commentary over original research; and stream-of-consciousness over structure.

2. The Invisible Hand on the Keyboard (The Economist)

With professors spending so much time blogging for no payment, universities might wonder whether this detracts from their value. Although there is no evidence of a direct link between blogging and publishing productivity, a new study … shows that the internet's ability to spread knowledge beyond university classrooms has diminished the competitive edge that elite schools once held.

3. Making Rain on the Net (ABA Journal)

A new wave of legal bloggers is now emerging, consisting of law firms—from solos to the nation’s largest—using Web publishing as marketing. Not only are blogs a good way to demonstrate a firm’s expertise and to give people a sense of a lawyer’s personality, but search engines like Google are designed in such a way that search results from blogs come up before others. For example, Martin Schwimmer has a blog called the Trademark Blog, and if anyone “googles” trademark lawyer, Schwimmer will be listed among the first results, above some of the nation’s largest firms.

4. Propopsed Attorney Advertising Rules Could Place Restrictions on Web Logs (NY Sun)

The rules do exempt submissions to publications, although whether a blog entry counts is open to debate, several attorneys said. Taken at face value, the proposed rules would require attorneys to send copies of blog entries to the disciplinary committee, a Washington, D.C.-based blogger, Greg Beck, said. It would also require lawyers to print the words "Attorney Advertisement" in large letters on their blogs.

5. In Court Blogs Can Come Back to Dog the Writers (Boston Globe)

First came the hard-learned lesson that e-mail can be used as evidence in legal proceedings. Now blogs -- basically, continuous public Internet journals -- are emerging as fair game in civil disputes, criminal cases, and government investigations, where they are used as evidence with growing frequency.

6. Bloggers and Parties – Can the Netroots Reshape American Democracy? (Boston Review)

Blogs are not only more open than traditional media; they are a better basis for argument. Newspapers, magazines, and broadcast media involve one-way communication from the originator of the content to the readers or audience. To be sure, there are letters to the editor, but blogs are more fundamentally dialogic. Bloggers are engaged in continual debate with each other. Many blogs also have comments sections, allowing non-bloggers to join the conversation. The result is a much more freewheeling, egalitarian form of communication than traditional media, one in which the distinction between author and reader is sometimes blurred to the point of near-irrelevance.

Announcing Two New Blogs

1. Austin Criminal Defense Lawyer     

    

"This blog will cover topics about the defense of criminal charges, mostly relating to Texas State Court criminal charges.  That focus will also include the need to talk about general principles of criminal law, and how they apply to the Texas Penal Code." (from "General" page)

    

2. Consumer Law and Policy Blog 

    

"Consumer Law and Policy Blog is a large group blog, with 13 regular contributors. The contributors include both law professors and practicing lawyers. The blog focuses on consumer law and class actions." (paraphrase of email)

When Jurors Blog

It is becoming more common for jurors to blog about jury duty, according to this ABA e-Report entitled Blogger’s Posts Don’t Equal Juror Misconduct:

The New Hampshire Supreme Court has upheld the conviction of a rapist, rejecting his claims that he was denied a fair trial because his jury foreman turned out to be a blogger who complained about having to show up for jury duty to deal with the local "riffraff."

       

The case may serve as a cautionary tale for trial lawyers in New Hampshire and elsewhere as grumbling about jury service from local barbershops and coffeehouses moves to the Internet.

      

Indeed, prospective jurors and active jurors are already blogging about their past experiences, and at least on one occasion, directly from the courthouse during service.

Hat tip: Carolyn Elefant at Legal Blog Watch.

End of The Airport Lawyer?

Sheryl Schelin has ended her blogging at The Airport Lawyer, and she is looking for someone to take it over. This is a topic worth consideration: what is involved in transferring a blog from one person to a successor? If anyone knows of a case where this has occurred, please leave a comment.

    

Here are the final posts from The Airport Lawyer:

• Thank You for Flying with TAL
• Announcement: Now Departing – I Mean REALLY Departing
• TAL’s Got a New Home Hub

Sheryl has also started her own practice, with two new blogs:

• The SC Consumer and Bankruptcy Blog
• The SC Employment Law Blog

Best of luck to her!

Harvard Finally Catches Up with Ohio State

Harvard Law School has made some changes to its 1L curriculum, as has been noted all over the legal blogosphere (example here). Harvard’s modifications will no doubt cause many other law schools to follow suit, as they did 100 years ago. Progress comes slow in the legal academy.

                       

One such change in the Harvard first-year curriculum is the adding of a mandatory class in legislation. Moritz Law School (Ohio State University) was already ahead of the curve on this one, having made Legislation mandatory in 1993 (approx.). The Harvard course may be a bit different because it combines legislation and regulation into one class. 

      

So, future and prospective law students, eschew the east coast, come to OSU, and stay on the cutting edge of legal academic progress.

    

They’ve also been known at OSU to give academic credit for blogging, at least on one occasion (self-promotion alert, my apologies). They don’t do that at Harvard yet, or anywhere else, but the time will come. For a potential example, see here.

Blogging as Scholarship: The Debate Continues

I wrote previously about the collection of essays on “The Future of Legal Scholarship” at the Yale Law Journal Pocket Part, several of which focused on blogging. The collection has since been updated with two new essays:

• Prof. Rosa Brooks: What the Internet Age Means for Female Scholars
• Prof. Brian Leiter: Why Blogs Are Bad for Legal Scholarship  

I quoted Prof. Brooks on a previous occasion here, because of her blog post that stated, “[T]he vast majority of law review articles are read by few people, and cited by even fewer.” Prof. Brooks suggested that it was time for her to say goodbye to law reviews. Now she writes in her essay at the Pocket Part:

The very existence of the Pocket Part testifies to the nature of the changes the Internet has brought. Once, we all waited patiently for The Yale Law Journal to arrive at the library; now, we read half the articles in advance on SSRN and the rest when they show up on the Journal’s website. And as legal blogs have proliferated, we can all produce and read real-time analysis of court decisions, legislation, and political events. Who would wait to open a law journal next year to see what Jack Balkin thinks about Hamdan v. Rumsfeld, when we can find out right now by reading his blog?

...      

At the Harvard Law School conference on blogs and legal scholarship, mentioned above, conference participants disagreed about some particulars, but few of them questioned the premise that the Internet is, indeed, transforming legal scholarship. The participants agreed that we will see more and more “short form” legal scholarship, ranging from the thirty-page essays that law journals print but also make available online, to the few-thousand word pieces in the Pocket Part, to blog entries of a few paragraphs. For practitioners, students, and even many other scholars, these developments will make legal scholarship far more useful, accessible, and user friendly. (I’ll leave for another day—or another commentator—the question of whether scholarship will be less deep in a world of more frequent but smaller units of scholarship).      

The second essay, by Prof. Leiter, gives the skeptical perspective on legal blogging as scholarship:

Of course, there is another culprit in this story, namely, the blogs themselves. If the leading law blogs were written only by the leading scholars, the availability cascades that occur would be more likely to raise, rather than lower, the level of scholarly discussion. But that is, unsurprisingly, not the case. The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.) Latecomers, like the Becker-Posner Blog or the University of Chicago Law Faculty Blog, which generally have much higher intellectual content, get nothing like the traffic of the early arrivals. As the economists like to say, the “barriers to entry” to the Internet in general, and the “blogosphere” in particular, are low, and not just in monetary terms. One need not be a good scholar, or an intellectual heavyweight, to have a blog, and if one got into the blog game early enough, one can thrive, especially with an audience of non-expert consumers.

The following quote from Prof. Leiter’s essay strikes me as unsupportable: “The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the "blog boom," that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.)” Most of the blogs which have received the greatest number of citations from court cases and law review articles (which I would consider proof of visibility) do not fit Prof. Leiter’s description of starting early or tilting noticeably to the right. Most of these blogs began after 2002, and they contain a variety of political viewpoints (or are apolitical in nature).

      

To be specific, the blogs which have been cited the most are Balkinization, The Becker-Posner Blog, How Appealing, Legal Theory Blog, Leiter Reports (no right-leaners there!), Lessig Blog, Patently-O: Patent Law Blog, ProfessorBainbridge.com, SCOTUS Blog, Sentencing Law and Policy,  The Volokh Conspiracy and White Collar Crime Prof Blog. Not only are they visible (hence their being cited), but many receive high amounts of traffic. In my opinion, these twelve legal blogs represent a new, legitimate, and respectable form of scholarship.

      

Eventually, the citation of blogs in court cases and law review articles will no longer be considered a novel development. Instead, it will be just as valid and worthwhile to ask which law review articles are being cited by blogs, and which court cases are attracting the most attention in the legal, scholarly blogosphere.

      

(As an aside, please note via this important correction that the Yale Pocket Part came into existence before the Harvard Forum.)

SCOTUS Blogger Discusses the Court

Tom Goldstein of the highly-regarded SCOTUSBlog recently visited Harvard, giving advice to law students and discussing the Supreme Court’s previous term. Highlights of his talk are here: Tom Goldstein on Life and the New Supreme Court. He was hosted by the American Constitution Society, which has its own blog here.

Article: Blogosphere Aboil

Lawyers who blog will be interested in this ABA newsletter article entitled “Blogosphere Aboil.” It describes how the state of New York may designate lawyer blogging as advertising, with consequences that go beyond the state: 

The storm was set off by a proposal that “computer-accessed communications” such as blogs be included in New York’s definition of legal advertising, and therefore require state scrutiny. The proposal, by a committee created by the state’s Administrative Board of Courts, also suggests the state code of professional responsibility extend court jurisdiction to out-of-state legal advertising that appears in New York. 

Thanks to Christopher Ernst of BDB, who blogs at Tort Law Journal, for the pointer.

Blog Post Leads to Murder Suspect

This story is from last year but is still worthy of mention. The identity of a double-murderer was discovered because one of the victims wrote about the murderer on his blog, immediately before the crime took place. The New York Daily News has the story here: Victim’s E-Journal Led to Slay Suspect (originally published May 17, 2005). It is more than a bit haunting to read the victim’s final blog entry, which is still online here.

      

Legal aspects of this case are discussed in the comments to this post at the Volokh Conspiracy.

Blawg Review in the UK

Justin Patten has become the first British blogger to host the weekly Blawg Review. I’ve been keeping up with the Reviews for a long time, and Justin’s     “# 78” is one of the best. Check it out here.

      

If you haven’t seen them already, David Maister's Blawg Review #76 and Patent Barrista’s Blawg Review # 77 are also well worth the visit. As are the ones before them, actually.

      

If you have time today to explore a wealth of fascinating material, go to the Blawg Review main page and visit the previous hosts on the right hand margin.