Cloud Society: How cloud technology could change case law

We've moved a long way since mediaeval notions of punishment but our laws are lagging behind technological changes

When Hunter S. Thompson first wrote, “In a closed society where everybody's guilty, the only crime is getting caught,” he clearly wasn’t taking into account the impact that technology would have over the following forty years, on both crime and its consequences. 

Crime is not absolute. We laugh at the incongruities of older legal frameworks while feeling assured we are more civilised now.  The fact is, however, that the human animal is no more criminal, nor noble, than it ever was. Each country creates its own legal frameworks according to a variety of factors and these can change.

In the UK, for example, it wasn’t all that long ago that it was illegal to be openly gay until society widened its goalposts to accommodate what it perceived as acceptable behaviour.

Or consider speeding. The motorway speed limit is set at 130kph (about 80mph) on the continent, or 110kph (70mph approx.) if it rains. Everyone breaks the rules. Last year the UK government proposed rasing UK speed limits to 80mph on the basis of “restoring the legitimacy of the speed limit.” Yet critics agued it would simply mean more people would drive at 90mph - the perception being that the limit is seen as a guiding hand, rather than an absolute indicator of criminality.

Crime and punishment go hand in hand and punitive measures have changed over the years.  Punishment, be it a fine, incarceration, community service or whatever, aims to serve consequences to the convicted, recompense the victim and discourage anybody who might be considering a similar path.

As such, a punishment can increase for a similar crime if a judge, or government deems that additional discouragement is necessary – a situation we saw clearly at the time of the 2011 riots.

What’s all this got to do with technology? The fact is, against such a many-faceted, context-sensitive and interpretation-based background, we are able to catch a great many more folks at it. At the same time, society’s voice has become several decibels louder – and more reactive – by virtue of the all-amplifying Internet.

That individuals can make their views heard is generally applauded – activist sites are now able to case a much brighter light onto despots, dodgy dealings and indeed, miscarriages of justice.

However, we’ve seen a number of examples recently that highlight the dangers of these converging factors. The case of Paul Chambers for example, whose ‘joke’ on Twitter about Robin Hood airport led to him losing his job and gaining a criminal record. No damage was intended; nor done; nor indeed likely – yet Mr Chambers was used as an example to others.  Or Jacqueline Woodhouse, jailed for 21 weeks having launched a racist tirade, all of it captured on a mobile phone. Or Liam Stacey, whose remarks about critically ill footballer Fabrice Muamba earned the student a 56-day sentence.

Or indeed, Jordan Blackshaw and Perry Sutcliffe-Keenan, the likely lads jailed for four years each for incitement to riot, having created the Facebook event "Smash d[o]wn in Northwich Town" in August 2011. The fact that no such event took place was seen as irrelevant by the judge; according to Eric Pickles, then Communities Secretary, “exemplary sentences” were necessary – his statement reflecting the general horror of the time.

While each of the above decisions is the topic of debate – indeed, that’s why we have courts of law, to enable such discussions to take place – they share several characteristics: that they only came to light thanks to the technologies we have in place; that they involved outbursts or misguided statements; that sentencing took into account the times in which the statements were made.

Another consequence is that the sentences influence society’s behaviour down the line. Surprising it may be to the interconnected, but many people are yet to discover the joys of social networking and are still to learn what is a nascent moral code about life online. We have still to agree, for example, what is acceptable and what is not – as illustrated by the tirade against Louise Mensch for having the audacity to say what she believed.

Nobody was prosecuted for their participation in what amounted to blatant online bullying. But meanwhile, the prosecutions of others, sometimes simply because their statements can be interpreted according to laws drawn up long before the existence of the Internet need equally careful consideration

Technology isn’t finished – indeed, in fifty years time we will likely look back and chuckle at just how primitive we were. New developments in face recognition, data aggregation and analysis, the increasing use of embedded cameras, each innovation offers new ways of finding things out, of capturing and sharing the moment, of linking one piece of information with another. Even today, for example, mobile phone companies hold all the information anyone needs to determine when any citizen has been speeding. All it needs is a sub-poena.

It’s not Big Brother we need to worry about, it’s the scurrying mass of little sisters, each with a tale to tell. Right now, many people still act like such innovations had not yet happened but it would appear that ignorance is no defence. To return to the case of Mr Chambers, it’s not just whether his act was ‘criminal’, but also the impact it has on anyone else who now feels a little less inclined to express humour in case it is misconstrued.

Of course we all need to be responsible for our actions, online and offline; of course we need to take into account the victims; and of course we all want to live in a safe, just and open society in which the perpetrators of bad things face the consequences of their actions. Internet trolling, cyber bullying and other despicable online activities are no less crimes simply because they use the Internet.

However, even if we manage to avoid the surveillance society, we are being drawn inexorably towards a more transparent world in which the smallest actions can be logged. During this period, we should be actively debating the legal side effects – in parliament if necessary – of that fact that we are all more publicly visible than we may understand, or indeed intend. Such deep questions as these require a full treatment, and we should not simply leave them to context-sensitive case law.

To end on a positive note, in the UK at least we can feel fortunate that we live in a liberal part of the world. But we need to take appropriate steps now, to ensure that we continue to benefit from this freedom . Otherwise, if Hunter S. Thompson is right, we’re going to need a lot of jails.


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