The creators of today's most successful technologies share an important willingness to push the envelope--a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuit of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers.
This Article focuses on one type of criminal liability--accomplice liability--that can act as a dragnet on providers of technology that lends itself to criminal use. In particular, a violation of the federal statute for aiding and abetting, 18 U.S.C. [section] 2, can be implied in every charge for a federal substantive offense, and there is a potentially troubling strain of cases holding that knowing assistance can be enough to deem someone an aider and abettor, even without stronger evidence of a shared criminal purpose.
This Article examines when the proprietors of technology with criminal uses aid and abet their users' crimes. The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. This Article explains the legal doctrines underlying this type of liability and provides examples of at-risk technologies, including spam software, file-sharing services, and anonymity networks like Tor. Ultimately, this Article concludes that the web of superficially conflicting rulings on the required mental state for aiding and abetting are best harmonized--and future rulings on liability for new technologies are best predicted--by looking to the existence of "substantial unoffending uses" for the product or service provided by the accused technologist.
Table of Contents INTRODUCTION I. THE HACKER ETHIC II. THE LIMITS OF NEUTRALITY A. The Legal and Moral Ambiguity of Internet Crime B. The Different Types of "Thought Crimes" C. Proof of "Thought Crimes" by Circumstantial Evidence III. SHIFTING DEFINITIONS OF THE GUILTY MIND OF AIDERS AND ABETTORS A. Background on Aiding and Abetting B. Modern Examples of Aiding and Abetting C. When Is Knowing Assistance Enough? D. Further Explanation of the "Substantial Unoffending Uses" Analysis E. The Importance of the Standard of Review IV. THE CRIMINAL CULPABILITY OF TECHNOLOGY PROVIDERS A. Technology Designed for Illegal Use: Spam Email Marketing Software B. Technology Overran with Illegal Use: File-Sharing Services. C. Technology Susceptible to Illegal Use: The Tor Project, Security Software V. FINAL THOUGHTS ON AVOIDING CRIMINAL LIABILITY A. Tailored Services Carry Greater Risk Than Mass-Market Services B. Uselessness of Contractual Provisions Disclaiming Illegal Intent C. The Potential for Leniency for Employees CONCLUSION INTRODUCTION
Doctor Samuel Mudd awoke at four in the morning to find a patient at his door with a broken leg. (1) After Mudd took the man inside his home, he set and bandaged the leg. Lacking proper materials for a splint, Mudd broke apart his own bandbox (a thin wooden box for clothes), and then sent for a carpenter to make a pair of crutches. (2) Mudd's patient left within a day, and the two never met again. But within weeks, Mudd was arrested and then convicted of treason, (3) all for doing what doctors have always done: treating a patient in agony who came to his home in the middle of the night. This patient, however, had been John Wilkes Booth, and he had broken his leg in his flight from authorities after assassinating President Lincoln. (4)
Just as doctors think of themselves as neutral parties--helping cops and criminals alike--today's digital technology pioneers see themselves as neutral parties distributing their wares without partisanship. "A common hacker refrain," journalist Brendan Koemer writes, "is that technology is always morally neutral. The culture's libertarian ethos holds that creators shouldn't be faulted if someone uses their gadget or hunk of code to cause harm." (5) But innovation in the Internet age is so fast-paced (and generally messy) that legislators have scrambled to craft new punishments for new crimes, such as spam email and Internet hacking, further blurring the lines that separate innocent creators from criminal users. (6) When technology lends itself to illegal use, courts must sort out the creators' criminal culpability: whether a cyberlocker's CEO is guilty of copyright infringement, (7) whether the creator of an anonymous online marketplace violated drug laws, (8) or whether software programmers should be jailed for enabling spam. (9) As Dr. Mudd learned, criminal law sometimes requires citizens to take sides, lest they be accused by the government of aiding and abetting criminals.
The scope of the federal statute for aiders and abettors, 18 U.S.C. [section] 2, is incredibly broad--it can be implied in every charge for a federal substantive offense (10)--and the notions of remoteness from the substantive criminal act used to limit the liability of criminal accessories are relatively untested in regard to Internet crime. Further, the Supreme Court in Rosemond v. United States, expressly left unresolved how [section] 2 applies to those who "incidentally facilitate a criminal venture" by providing a product or service, "knowing but not caring" about the principal's criminal intent. (11) The Court also arguably breathed new life into the strain of decisions holding that knowing assistance is enough to be an aider and abettor, even without stronger evidence of a shared criminal purpose. (12) Many accused technologists (13) try to exculpate themselves, with mixed success, by claiming ignorance of specific instances of their technology's criminal use. But unfortunately for today's technologists, the defense of lack of knowledge has dwindled in a world flooded with information.
This Article examines when the proprietors of technology with criminal uses aid and abet their users' crimes. (14) The aim is to help courts, prosecutors, and technologists draw the line between joining a criminal enterprise and merely providing technology with criminal uses. Ultimately, this Article concludes that the web of superficially conflicting rulings on the required mental state for aiding and abetting are best harmonized--and future rulings on liability for new technologies best predicted--by looking to the existence of "substantial unoffending uses" for the product or service provided by the technologist accused of aiding and abetting.
THE HACKER ETHIC
To understand the mentality of technologists who skirt the edge of legality, it is worth returning to the dawn of the computer age, when the hacker ethic emerged with a distinctly anti-authoritarianism view of technology. (15) In the early 1960s, student programmers at Massachusetts Institute of Technology (MIT) developed a unique culture hailing the virtues of access to computer technology and freedom of information. (16) These early hackers believed deeply in their ability to improve life through computer technology, and they resented barriers and bureaucracies that hindered their hands-on exploration and betterment of the world around them. (17)
This mentality led to a veneration of decentralized experimentation and a certain willful blindness to what hackers saw as inefficient restrictions. (18) Ever mischievous, they probed flaws in MIT's phone system, ignored prohibitions on tampering with computer hardware, and intentionally crashed the school's million-dollar mainframe computers (to which they were allowed only limited access). (19) Adopting a unique concept of property rights, they would break into university labs to "borrow" components without ever considering it stealing, but would share their own software creations without thought to passwords, royalties, or licenses, repeating the mantra that "information should be free." (20)
As the computer revolution spread, so did the hacker ethic. Soon California computer enthusiasts, buoyed by an undercurrent of post-hippie activism, brought computers to the people by hacking hardware and sharing even proprietary software, like Atari's Pong. (21) As the market for personal computers grew, some programmers, like Bill Gates, were willing to profit from their creations. (22) Combined with this entrepreneurial spirit, the hacker ethic was eventually credited as inspiring the minds behind titans of the tech industry such as Microsoft, Google, and Facebook. (23)
The antiestablishment attitude persisted, too. For some, this outlook led to noble pursuits, leading them to forgo profiting on their achievements to innovate in the public interest. A good example is the early Internet pioneers protecting the nascent network against outside control by championing governance by consensus. (24) David Clark, the Internet's chief protocol architect for most of the 1980s, memorably remarked, "We reject: kings, presidents, and voting. We believe in: rough consensus and running code." (25) But this mentality also begot a certain lawlessness that would land next-generation hackers in court. It is under a general banner of hackerism, for example, that the online collective Anonymous carries out devastating cyber-attacks. (26) Other hacker progenies, info-libertarians like Aaron Swartz and Chelsea (Bradley) Manning, raised the ire of law enforcement by pushing the boundaries of "information should be free." (27) Eventually, the term "hacker" was marred with the connotation of "digital trespasser." (28)
This history showcases a key difficulty that courts must address: as a rule, technology is "dual use," deployable for both nefarious and virtuous ends. This tension is perhaps best exemplified by the Internet itself. Its...