[LINK] ID theft brings tech to law

rchirgwin at ozemail.com.au rchirgwin at ozemail.com.au
Tue Sep 18 18:53:22 AEST 2007


Roger, Karl, etc...

Roger Clarke wrote:
>> 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).
Indeed. A forged cheque is fraud; the forger pretends to be Richard 
Chirgwin so as to present a cheque against Richard Chirgwin's account. 
Pretending to be Roger Clarke so as to decimate his credit card is, in 
essence, the same crime (actually, "technology neutral" is a mantra 
rendered almost meaningless by endless repetition). The difference is 
not in the nature of the crime, but in the means used to commit it.

So - it could be argued that the technological aspect of a fraud be 
considered not as a "new crime" but as an aggrivating circumstance, 
appended as a schedule to the legislation. We don't need a new crime for 
fraud (nor the new name, "ID Theft", which was coined as a marketing 
strategy by people who want to "own" the solution), we need a discussion 
of the means involved, and whether they warrant different penalties.
>
> 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.
...or specific aggravating circumstances...

Let's see. IANAL but a crime exists through the action and the intent. 
The old story: pushing someone over is assault, but if you do so to get 
them out of the way of a truck, then your intent excuses your act. The 
*means* - keystroke logging or dumpster-diving or whatever - are 
relevant not to whether "obtaining money by deception" is a criminal 
act. Rather, the means are relevant to the proof - they are part of the 
evidence of both the act and the intention.

A specific definition of "signature" doesn't, in and of itself, create a 
new crime; it allows the electronic signature to be accorded the status 
of an ink signature, thereby allowing a court to find that the 
electronic signature was forged.

RC
>
> 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.
>
>



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