The Right to Arm for Self Defense

So, you have the right to bear arms and you have the right to defend yourself, but what if you arm yourself in anticipation of defending yourself?

In Virginia, the answer is that if you have armed yourself in reaction to a threat the inference of malice that the use of a firearm in a homicide carries is negated. The same rule probably carries for lesser offenses such as malicious wounding, but the cases which set the rule are homicide cases. Generally, this has been laid out in a series of decisions having to do with jury instructions. The best statement of this probably comes from Bevley v. Commonwealth, JUN46, VaSC No. 3097:

It is a fundamental doctrine that a person who has been threatened with death or serious bodily harm and has reasonable grounds to believe that such threats will be carried into execution, has the right to arm himself in order to combat such an emergency. Whether the threats were made, or the accused had reason to believe they would be carried into execution, were questions to be determined by the jury. However, when a jury is told that the law presumes that a person using a deadly weapon to kill another acts with malice and throws upon the accused the burden of disproving malice, then the accused is entitled as a matter of law to have the jury instructed that he has overcome the presumption, if they believe the evidence offered in his behalf.

Of course, this uses the old "presume" language, which we have scrapped nowadays in favor of telling juries that they can infer. Nevertheless, the principal in the decision is still sound.

This right to arm extends so far that in Jones v. Commonwealth, JAN48, Va. No. 3304 a man who was clearly threatened could go home, arm himself, and wait on his porch for the man who threatened him to come was entitled to the right to arm instruction.

There are some limitations to the requirement that the instruction be given. Reasoning that the right to arm instruction is based upon a need to counter the available inference that if someone purposefully arms himself the act of doing so indicates malicious intent, the Virginia Court of Appeals has stated the instruction is not appropriate when the defendant merely grabbed an available weapon to defend himself or his family.  Lynn v. Commonwealth, MAY98, VaApp No. 0109-97-3. I take this to mean that since the defendant didn't purposefully seek a weapon there is nothing to counteract from the purposeful seeking of the weapon and therefore, the only instruction needed is the self defense instruction - not the right to arm instruction.

So, what exactly is the instruction? Well, here's the one from Bevley:

The court further tells the jury that when a person reasonably apprehends that another intends to attack him for the purpose of killing him or doing him serious bodily harm, then such person has a right to arm himself for his own necessary self-defense."

And here's the one that was rejected as unnecessary in Lynn:

When a person reasonably apprehends that another intends to attack him or a member of his family for the purpose of killing him or a member of his family or doing him or a member of his family serious bodily harm, then such person had a right to arm himself for his own necessary self-protection and the protection of his family, and in such case, no inference of malice can be drawn from the fact that he prepared for it.

The second covers all the bases, so I think it's the better of the two.

It's an interesting line of reasoning and carries all sorts of questions. Does the threat have to be individualized? Can a Blood carry a sidearm because he knows that the Latin Kings are trying to kill Bloods in the City? The cases refer to the right to arm. How does this right play out with felons or others who are forbidden by mere laws from possessing firearms? Can a felon carry a firearm if he knows that the Pagans are hunting him? Personally, I think there has to be an individualized threat which has some immediacy.

Animotoing

I've been playing around with Animoto. It's a site to which you upload pictures and it mixes them with music and effects. Here's an example using various logos I've used over the years:

The effects used are chosen by the web site and don't always turn out perfectly. However, it does allow you to remix using the same pictures if you are not satisfied. The above was the video I thought the best; below are two videos the were not quite as good, but show other effects which might manifest themselves.

Future of Privacy in Scientific American

I hope to have the time this weekend to make my way through the incredible variety of privacy-related articles in the most recent Scientific American. Thanks to Library Boy for pointing to this, which I surely would have missed had it not been for his link.

Check them all out:

• Industry Roundtable: Experts Discuss Improving Online Security
  
• Internet Eavesdropping: A Brave New World of Wiretapping
  
• How RFID Tags Could Be Used to Track Unsuspecting People
  
• Digital Surveillance: Tools of the Spy Trade
  
• Data Fusion: The Ups and Downs of All-Encompassing Digital Profiles
  
• Cryptography: How to Keep Your Secrets Safe
  
• Beyond Fingerprinting: Is Biometrics the Best Bet for Fighting Identity Theft?
  
• Tougher Laws Needed to Protect Your Genetic Privacy
  
• Do Social Networks Bring the End of Privacy?
  
• How Loss of Privacy May Mean Loss of Security
  
• Privacy in an Age of Terabytes and Terror

Liberal= Get Tough on Crime Instead of Get Tougher

Can You Steal Computer Programs & Data?

Yesterday, I put up a humorous post about the "theft" of $5 million dollars worth of computer information masquerading as art. Or, perhaps, it actually is art (all art is a variation of the Emperor's New Clothes). Anyway, the point is that shortly after I put the post up, I got an anonymous email fussing at me

"Copyright infringement is not theft. Look it up."

Okay. I'm always a sucker for a research question.

Under Virginia law computer theft crimes are in Title 18.2 - Crimes and Offenses Generally, Chapter 5 - Crimes Against Property, Article 7.1 - Computer Crimes. Of course, nobody refers to the statutes in that manner, so if you're looking them up just start at § 18.2-152.1.

At first blush, the pertinent statute would appear to be 18.2-152.8 which states as follows

For purposes of §§ [Grand Larceny], [Petit Larceny], [Receiving Stolen Goods], and [Embezzlement], personal property subject to embezzlement, larceny, or receiving stolen goods shall include:

. . .

2. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:

a. Tangible or intangible;

b. In a format readable by humans or by a computer;

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

Of course, there will always be the problem in a larceny case that larcenies require the "taking with an intent to permanently deprive" an item from the owner. Thus, the more pertinent crime is probably found in the Computer Fraud statute § 18.2-152.3:

Any person who uses a computer or computer network, without authority and:

. . .

3. Converts the property of another;

is guilty of the crime of computer fraud.

Conversion is usually a civil action, but it has been pressed into service here because it does not require larceny's "taking with intent to permanently deprive." Instead, it is the use of the property of another, without permission, for one's own benefit and inconsistent with the owner's rights. And, of course, property is defined for us under § 18.2-152.2 as

3. Financial instruments, computer data, computer programs, computer software and all other personal property regardless of whether they are:

a. Tangible or intangible;

b. In a format readable by humans or by a computer;

c. In transit between computers or within a computer network or between any devices which comprise a computer; or

d. Located on any paper or in any device on which it is stored by a computer or by a human

The reason you don't see prosecutions under this statute is fairly simple. It's difficult to prosecute this sort of crime because of the dispersion of the parties involved. In other words, it ain't local. If a kid at Pitcairn College downloads 50 songs illegally, the actual property owners (whether they be record companies or artists) are going to be scattered around the United States and abroad. It is going to be difficult to get them to all come to Virginia to prosecute a misdemeanor. Thus ownership becomes difficult to prove. Value could also be difficult to prove ($200 or greater is a felony). Is a cruddy 32 kilobit per second mp3 download the same value as the uncompressed CD?

However, when you've got someone admitting to illegally downloading $5 million dollars worth of data illegally, you really don't have all those difficulties. They've admitted the illegal act and the value. It doesn't get much easier to prosecute than that.

Facebook agrees to address Privacy Commissioner's concerns

This just in:

News Release: Facebook agrees to address Privacy Commissioner’s concerns - August 27, 2009

Privacy Commissioner of Canada satisfied that proposed changes to the social networking site’s privacy practices and policies would bring Facebook into compliance with Canadian law.

OTTAWA, August 27, 2009 — Facebook has agreed to add significant new privacy safeguards and make other changes in response to the Privacy Commissioner of Canada’s recent investigation into the popular social networking site’s privacy policies and practices.

The company’s decision to implement the Privacy Commissioner’s recommendations is a positive step towards bringing Facebook in line with the requirements of Canada’s privacy law.

“These changes mean that the privacy of 200 million Facebook users in Canada and around the world will be far better protected,” says Privacy Commissioner Jennifer Stoddart.

“This is extremely important. People will be able to enjoy the benefits of social networking without giving up control of their personal information. We’re very pleased Facebook has been responsive to our recommendations.”

Last month, the Privacy Commissioner issued a report on an in-depth investigation triggered by a complaint from the Canadian Internet Policy and Public Interest Clinic.

While Facebook took some steps to resolve privacy concerns, the Commissioner remained dissatisfied by Facebook’s response at the end of the investigation. She was particularly concerned about the risks posed by the over-sharing of personal information with third-party developers of Facebook applications such as games and quizzes.

Facebook was given 30 days to respond to the Commissioner’s report and explain how it would address the outstanding concerns. Following a review of Facebook’s formal response and discussions with company officials, the Commissioner is now satisfied Facebook is on the right path to addressing the privacy gaps on its site.

“Facebook is promising to make significant technological changes to address the issue we felt was the biggest risk for users – the relatively free flow of personal information to more than one million application developers around the world,” says Assistant Commissioner Elizabeth Denham, who led the investigation on behalf of the Office.

“Application developers have had virtually unrestricted access to Facebook users’ personal information. The changes Facebook plans to introduce will allow users to control the types of personal information that applications can access.”

An over-arching issue highlighted during the investigation was that the way in which Facebook provides privacy information to users is often confusing or incomplete.

Facebook agreed to changes to help users to better understand how their personal information will be used and, ultimately, to make more informed decisions about how widely to share that information. The Commissioner has reviewed these improvements and will be following up with Facebook as the changes are implemented.

The following is an overview of key issues raised during the investigation and Facebook’s response:

1. Third-party Application Developers

Issue: The sharing of personal information with third-party developers creating Facebook applications such as games and quizzes raises serious privacy risks. With more than one million developers around the globe, the Commissioner is concerned about a lack of adequate safeguards to effectively restrict those developers from accessing users’ personal information, along with information about their online “friends.”

Response: Facebook has agreed to retrofit its application platform in a way that will prevent any application from accessing information until it obtains express consent for each category of personal information it wishes to access. Under this new permissions model, users adding an application will be advised that the application wants access to specific categories of information. The user will be able to control which categories of information an application is permitted to access. There will also be a link to a statement by the developer to explain how it will use the data.

This change will require significant technological changes. Developers using the platform will also need to adapt their applications and Facebook expects the entire process to take one year to implement.

2. Deactivation of Accounts

Issue: Facebook provides confusing information about the distinction between account deactivation – whereby personal information is held in digital storage – and deletion – whereby personal information is actually erased from Facebook servers. As well, Facebook should implement a retention policy under which the personal information of users who have deactivated their accounts will be deleted from the site’s servers after a reasonable length of time.

Response: Facebook has agreed to make it clear to users that they have the option of either deactivating their account or deleting their account. This distinction will be explained in Facebook’s privacy policy and users will receive a notice about the delete option during the deactivation process.

While we asked for a retention policy, we looked at the issue again and considered what Facebook was proposing. We determined the company’s approach – providing clarity about the options, offering a clear choice, and alleviating the confusion – is acceptable because it will allow users to make informed decisions about how their personal information is to be handled.

3. Personal Information of Non-users

Issue: Facebook should better protect the privacy of non-users who are invited to join the site.

Response: Facebook agreed to include more information in its terms of use statement. Facebook confirmed that it does not use email addresses to track the success of its invitation feature, nor does it maintain a separate email address list for this purpose.

4. Accounts of Deceased Users

Issue: People should have a better way to provide meaningful consent to have their account “memorialized” after their death. As such, Facebook should be clear in its privacy policy that it will keep a user’s profile online after death so that friends can post comments and pay tribute.

Response: Facebook agreed to change the wording in its privacy policy to explain what will happen in the event of a user’s death.

Facebook has committed to a timetable for implementing all of the changes, some of which, such as the third-party application changes, are technologically complex. The company has already started to make changes and we expect them to be fully complete within a year.

“It’s now up to Facebook to demonstrate to us that they are living up to their commitments,” says Assistant Commissioner Denham.

“With the conclusion of the Facebook investigation, our Office has made clear our expectations for how social networking sites need to protect personal information. Other sites should take note – and take steps to ensure they’re complying with Canadian law.”

Statements by the Commissioner and Assistant Commissioner are available on the OPC’s website.

The Privacy Commissioner of Canada is mandated by Parliament to act as an ombudsman, advocate and guardian of privacy and the protection of personal information rights of Canadians.

Remarks by Jennifer Stoddart, Privacy Commissioner of Canada

Remarks by Elizabeth Denham, Assistant Privacy Commissioner of Canada

Letter from OPC to CIPPIC outlining its resolution with Facebook

Should Juries Be Able to Declare a Defendant Innocent?

In yesterday's CLTV, I proposed that juries be given three options: guilty, not guilty, and innocent. Scott doesn't cotton to this idea at all.

It shifts the burden of proof from the prosecution to the defendant, where a verdict of innocent would require that the defendant prove "actual innocence" while the prosecution tries to prove guilt beyond a reasonable doubt. Ken's lightened the load a bit, suggesting that only 10 out of 12 jurors need agree on actual innocence. It's a kind thought, but still not enough.

And it suffers from yet another infirmity. It is quite possible that a wholly innocent defendant be placed into a position of appearing more likely guilty than not (the preponderance standard), when an eyewitness identifies the defendant as the perpetrator of a crime that he simply did not do. This is compelling evidence, even though it's of dubious value given the frequency of false identifications and the problems inherent in eyewitness testimony. But even when it may not be sufficient to meet the beyond a reasonable doubt standard, rarely would a jury reject it so completely as to conclude the defendant to be innocent.

First, let me say that I recognize my idea is not a perfect - it's just better than the system as currently laid out. Currently, even if the jury thinks the charges are the most bogus, unsubstantiated pile of malarky, all it can do is find someone not guilty. Ironically, in Virginia the only way get a finding of "innocent" is to be convicted, file for a writ of actual innocence, and have it granted. I suspect this is similar to other States, although most of them probably do this in habeas proceedings where the defendant can find himself right back in murky waters. Is a defendant innocent or just not guilty if his conviction is overturned because of ineffective assistance of counsel?

In any event, I accept that in some cases the jury will find someone not guilty when he is actually innocent - just like juries now wrongly find some people not guilty or guilty. As long as we human beings are involved the system will never be perfect. However, that does not relieve of of the obligation to try to make it better.

And this system would be better. I suspect that the number of people found innocent rather than not guilty would be a small percentage. I could be wrong in this. Faced with legal mumbo-jumbo about whether someone is merely not guilty or innocent jurors may default to innocent (thus making Scott a happy man). Either way, a number of people who are now being found not guilty would find themselves completely cleared of the charge.

As to the burden of proof, I disagree with Scott. There is no burden shifting under the system as I envision it. I envision what we call around here a "waterfall instruction." It would go something like this:

If you find that the prosecution has not proven its case beyond a reasonable doubt you must then decide whether the prosecution has proven its case by a preponderance of the evidence. If 10 jurors agree that the prosecution has failed to prove its case by a preponderance of the evidence you shall find the defendant innocent. Otherwise, you shall find the defendant not guilty.

That puts no burden whatsoever on the defendant to prove anything. In fact, in most cases it would just add ammo to the defense attorney's arguments: "Not only do they have to prove Mr. Smith "not innocent", which the prosecution has failed to do, they must climb even higher and reach beyond a reasonable doubt. Since they've failed to prove him "not innocent" they've failed abysmally in their attempt to reach that hallowed level of proof."

It'd be a pain in the posterior region. However, sometimes such a pain is acceptable if it makes the system more just.

Alberta Commissioner launches investigation into medical identity theft

This is the first Canadian case of "medical identity theft" or impersonation that I've seen widely reported:

CBC News - Calgary - Mistaken identity case sparks investigation

Alberta's privacy commissioner has announced an investigation into the "Golo" identity case.

Golo is the nickname of a man who was admitted into Foothills Hospital, died on May 21, 2009, and then was buried in a Calgary cemetery, all under someone else's identity.

He allegedly used an Alberta Health Care card stolen from a casual acquaintance.

The investigation will examine "what steps are reasonable to take to ensure health information is accurate and complete before it is used by a health services provider," according to a news release from the information and privacy commissioner's office.

A report will be released to the public once the investigation is completed.

Calgary police are still trying to determine Golo's identity.

Commissioner to reveal result of Facebook negotiations tomorrow

Apparently both the Privacy Commissioner of Canada and Facebook intend to hold separate press conferences tomorrow to discuss the outcome of the last month of negotiations between the two about whether Facebook is in compliance with Canadian privacy laws. See: Canada may reveal next step on Facebook privacy.

Privacy? We Got Over It.

Yesterday's Wall Street Journal had an interesting Op/Ed on privacy, highlighting contemporary expectations of privacy.

Information Age - WSJ.com

Privacy? We Got Over It.

August 25, 2008; Page A11

In 1988, Congress banned video stores from disclosing the titles of films that people rent. The issue arose because in the battle to block Robert Bork from the Supreme Court, someone leaked his video rentals.

Fast-forward to this summer, and a federal judge hearing a $1 billion copyright complaint by Viacom ordered YouTube to turn over online records about which computer addresses were used to watch which videos on the site. The judge dismissed privacy concerns as "speculative." How quickly our expectations of privacy have changed.

Privacy advocates objected that with access to Internet protocol addresses, it would be possible to track who watched what. Hundreds of millions of people have watched videos on YouTube since its founding in 2005 -- indeed, by one estimate, virtually everyone who uses the Web has watched a video on the site. This makes it surprising that there was such little public outcry about this potential loss of privacy. Google, which owns YouTube, has complied with the judge's order by using encryption to hide individual records, but it is indeed "speculative" how much people would object to disclosing this online behavior.

This incident is a telling moment. We seem to be following the advice of Scott McNealy, chairman of Sun Microsystems, who in 1999 said, "You have zero privacy anyway. Get over it." And the observation by Oracle CEO Larry Ellison: "The privacy you're concerned about is largely an illusion. All you have to give up is your illusions, not any of your privacy."

These comments could be dismissed as technology executives trying to minimize complaints about technology. But whatever we say about how much we value privacy, a close look at our actual behavior suggests we have gotten over it. A recent study by AOL of privacy in Britain found that 84% of people said they would not disclose details about their income online, but in fact 89% of them willingly did.

Amazon closely records our taste in books, Gmail scans our emails to deliver relevant ads, and electronic tolls track where we drive. Profiles on MySpace and Facebook are accessible, forever. The disclosure that Judge Bork liked to rent British comedies seems quaint in comparison.

Records about us are no longer kept in scattered manila files in dusty cabinets, but digitally, which means in permanent records that can be combined with other records to paint a full picture of our tastes and habits. Information held by different retailers, insurers and government agencies can be mined to create constantly updated files more complete than the most tenacious intelligence report on a suspected criminal a generation ago.

Privacy advocates do their jobs by reminding us of these risks, but our choices all seem to be in the direction of trading away privacy. The fantastic power and convenience of digital life has led us to change what we consider private in ways that we can only begin to understand.

Indeed, our expectations of privacy have changed radically over time. Stanford law professor Lawrence Friedman in his recent book, "Guarding Life's Dark Secrets," documents the total lack of privacy expectations through the medieval period, when people lived together with no option for privacy, to a period of privacy for some people and some purposes as part of what he calls the "Victorian compromise." Propriety was defined through social norms focused on reputation, which included significant freedom for otherwise scandalous behavior if it was done carefully, in private.

"If the nineteenth century was a world of privacy and prudery, a world of closed doors and drawn blinds," Mr. Friedman writes, "then the world of the twenty-first century is the world of the one-way mirror, the world of the all-seeing eye."

We now seem happy to trust companies with our information for benefits such as one-click buying and online searches for personally relevant results. In a digital world where it is possible to know more than ever about everything, including one another, the new vice may be the flip side of privacy -- concealing information about ourselves of legitimate value to others.

In the physical world, surveillance cameras, satellites and bio-recognition systems have redefined privacy expectations. We have learned that "privacy can be very dangerous," as federal appeals judge Richard Posner has observed. "Obviously if you're a terrorist, privacy is enormously important. So the more we think of privacy as endangering us, that will reinforce these commercial incentives to surrender privacy."

Privacy remains a virtue, or at least we still say it does. But the balance has been tipped by other values, such as transparency, a free flow of information and physical security. We're in the early stages of adapting to more digital and visible lives, with privacy expectations better defined by what we do than by what we say.