This was an extra credit assignment I completed for a cybercrime course in the fall of 2010, the question was:
“Write a new amendment to the Constitution which covers criminal cases involving computers that are forefathers would have written had they been alive today. This amendment should include provisions for jurisdictional issues such as computer crimes that happen across state lines and in different countries.”
Since the time of Hammurabi, mankind has recognized the need for a legal codex. The United States in it’s infancy also recognized it’s need for an broad set of federal documents of incorporation. When considering documents written by the founding fathers, it is imperative that we consider their worldview as well as moral and ethical philosophy. The prevailing theory on moral and ethical thought of the time revolved around natural law which was later established as legal and political theory by individuals such as Beccaria and Bentham (Brasswell, McCarthy, & McCarthy, 2008, Samaha, 2009).
Natural law is fallacious on several levels as it assumes that human beings are born with rights, be it innate or from higher power; either assumption is flawed in that in actuality human beings are born with no rights and merely assume whichever rights are afforded them by social construct such as law. That being said, I would not be inclined to dispose of the United States Constitution or the Bill of Rights, but rather that I consider them not inalienable rights we were born with, but rather rights endowed as social construct to ensure mutual benefit of parties found within said social construct.
Were we to consider computer technology through the lens of natural law as a construct for mutual benefit within social constructs we observe that essentially most amendments can suffice; however, in the interests of clarity a clause similar to that introduced with the 1868 ratification of the 14th amendment which affords citizens the same protection from state government as federal government. The first section reads as such:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (via Worrall, 2007).
Proper language and a similar approach the the 14th Amendment could provide clear intention to endow a person with rights pertaining to their virtual person as well as their virtual effects. Let us consider how we can bridge the important legal rights to the virtual world.
The first amendment, which offers the freedom of speech, is essentially sufficient in that words spoken or written online would still constitute speech or press. The third amendment offers a very interesting conundrum in that a soldier is not allowed to be physically quartered within a home; however, were an agent of the government to employ a trojan onto computers of U.S. citizens which was activated for cyberwarfare use, they would have effectively still violated the assumed right to privacy and assumed right to use a person’s effects as they please. This leads us into the fourth amendment which focuses on tangible items that should be secure from unreasonable searches and seizures. Later judicial restrictions on electronic listening devices have restricted the government’s ability to intercept electronic communications without issuance of a warrant, which is evidence that the amendment as it stands was not sufficient for the advent of telephones and the internet (Worrall, 2007).
Finally, article III of the United States Constitution in section 2, offers vague language which suits the enforcement of cybercrimes as it states:
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” (via National Archives, 2010).
As can be seen, there is no question that if a cybercrime victim and cybercrime perpetrator do not share states or countries, enforcement falls well within the purview of the federal government; however, the question as to the venue for prosecution remains unclear in the amendment.
Were we to form a 28th amendment to the constitution to address cybercrime, from the same moral and ethical viewpoints as the original Constitution, It would likely read as follows:
AMENDMENT XXVIII
Section 1.: The rights of citizens of the united states shall not be denied or abridged by the United States or by any State due to properties or personal information existing in electronic formats. This includes deployment of any software which transforms electronic devices into instruments of the state for the waging of cyberwarfare as per Amendment III, as well as the rights of individuals to be secure in both their virtual persona and data from unreasonable searches and seizures.
Section 2.: As per Article III section 2, when a a victim of cybercrime and perpetrator of cybercrime reside within the same state, the state in which the crime occurred will be responsible for the apprehension and prosecution of the perpetrator. In instances where the crime is between individuals residing in different states or countries, the federal government shall retain judicial authority.
Section 3.: The Congress shall have power to enforce this article by appropriate legislation.
References
Braswell, M.C., McCarthy, B.J., McCarthy, B.R. (2008). Justice, crime, and ethics 6th ed. Newark, NJ: Lexis Nexis.
National Archives. (2010). The charters of freedom: a new world is at hand. Retreived from http://www.archives.gov/exhibits/charters/constitution.html
Samaha, J. (2008). Criminal law 6th edition. Belmont, CA: Thomson Learning.
Worrall, J.L. (2007). Criminal procedure: from first contact to appeal. Boston, MA: Pearson Education.