[LINK] ID theft brings tech to law

[Roger Clarke]

>On Tue, 2007-09-18 at 10:00 +1000, Roger Clarke wrote:
>>  A working rule that says 'mainly focus on the generic'? - yep, I
>>  fully support that.  Unpreparedness to look deeper, and regulate at a
>>  deeper level if the situation warrants it? - nope, not good enough.

At 11:28 +1000 18/9/07, Karl Auer wrote:
>If the situation warrants it - yes. I still want someone to describe to
>me a situation that warrants it.

Roger replies now:
I thought your examples in the previous para. were quite eloquent:

Karl:
>Yes, I know we also have laws about guns :-) The technology-specific
>laws relating to guns are in essence preventative and in essence about
>safety. The offences they define are essentially about endangering
>people. Should the endangerment become sad reality, then the offender
>has two charges to worry about - the technology specific offence
>(endangerment) and the technology neutral offence (murder, whatever).

They're better than anything I've come up with in the past.

So id fraud and preparation for id fraud need to be generic offences. 
(And they probably have been for the odd century or three).

And, if it turns out that we need to be specific (which I'm not sure 
about, because I haven't looked into it), then:
-   keystroke loggers with a primary purpose of password-capture, and/or
-   email-analysers/packet-sniffers with a primary purpose of
     credit-card-detail capture,
(in both cases provided that a purpose of the capture is fraud - to 
ensure research is only picked up if it has spin-offs), may need to 
become specific offences.

Note too that even the generic offences may need to be re-phrased 
because of changes in technology, even though the offence remains 
generic.  An example was the generalisation of 'signature' that was 
the primary part of the Electronic Transactions Acts.  It sustained 
the technology-neutrality of the generic, but was occasioned by 
technological developments.

My usual example of the limits of 'technology neutrality' is 
supersonic speed and the booms that they give rise to, and the need 
to get the booms away from settled areas.

It would have been silly to suggest such a law until technology 
enabled supersonic flight.

Once the problem is in prospect, it might well be sensible to express 
the law in generic form (covering both jets and rockets, for example).

But in order to phrase it sensibly, you needed to understand some 
physics, and jet and rocket technology.  Some day, a warp drive is 
going to force some changes, etc., etc.

Other such problems arise in quantity with nuclear fission (for which 
very specific laws have been created), and wind power, and 
desalination, and various responses to climate change, and will do 
one day (I very much hope) with nuclear fusion.


-- 
Roger Clarke                  http://www.anu.edu.au/people/Roger.Clarke/

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Visiting Professor in Info Science & Eng  Australian National University
Visiting Professor in the eCommerce Program      University of Hong Kong
Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW