If It’s Illegal To Rent My Building To Burglars To Use As A Stolen Property Bazaar, Should It Also Be Illegal For My Web Site To Be Used As A Bootleg Movie Emporium?
By David Grace (www.DavidGraceAuthor.com)
We talk a lot about rights. I want to talk about the other side of the coin — responsibilities.
I’m going to ask some questions that I hope will make you think about:
- What’s the responsibility of someone who encourages a crime?
- What the responsibility of someone who facilitates a crime?
- What right should you have to keep privately taken pictures of yourself private?
We Shouldn’t Just Make Up Laws As We Go Along
We can just say, “Make this illegal but not that” but we’re likely to end up with a random set of rules which means we will have a random set of loopholes and gray areas.
If we can figure out a principle or a policy before we start writing a bunch of laws the result will not only work better, but it will be better understood, more predictable and better accepted.
What should the policy be concerning what we can do and what we can’t do on our web sites? Let’s start as close to a foundation principle as possible and work up from there.
What’s The Basic Legal Principle We’re Trying To Protect?
The problem with policies that start with “God gave us the right to . . . .” is that it’s essentially the statement, “I think that the rule should be . . . .”
Lots of people don’t believe in God. Those that do have wildly different ideas of what he/she wants. None of those God-given policies are subject to reasoned argument. They’re all advanced as first principles that must be accepted on faith, that through some unprovable process the person who’s proposing them knows what God wants.
So, let’s take a step back and try to have a discussion that more closely adheres to logic and reason than imaginations, hopes or dreams about what your or anyone else’s particular God wants.
Protect The Ability To Advocate Policy
As a starting point for any discussion for rules about the Internet can we agree that every democratic society needs a structure that will allow the society to function more smoothly, with less friction, and with more opportunities to exchange ideas with the goal of educating or enlightening the population so that people will have the best chance of making the best choices they can when anyone proposes making new laws?
If you don’t know what the issues for and against a proposed law are, if you don’t know what the claimed good and bad effects of that law will be and what its costs will be, then you can’t make an informed decision as to whether or not to support or oppose it.
So, let’s start with the basic idea that in a democracy it’s important for people to have the freedom to publish and consume arguments, facts, predictions, policies and the like.
What If The Policy You’re Advocating Is Genocide?
But what if the policy someone is advocating is “Kill all the Jews” or “Kill all the Libertarians”?
Maybe a reasonable rule would be that you shouldn’t legally be able to publicly advocate people doing things that are themselves a crime?
But wait, what about advocating civil disobedience or jury nullification? Don’t we want people to be able to urge others not to comply with a law that the speaker believes is unjust?
The Difference Between Advocating A Passive And An Active Violation Of The Law
What if we change the rule to say that you can advocate people passively refusing to obey a law but you can’t advocate people affirmatively performing an act that is itself a crime? What if we go a little bit further and say that it will be illegal to encourage others to actively commit a serious crime such as murder, rape, arson, bank robbery, etc..
But what about identity theft, commercial fraud, forgery, etc.? OK, it maybe it should be “commit a felony that is punishable by at least X years in prison.”
So now we’re going to make it illegal to encourage others to actively commit a felony that is punishable by at least, say, five years in prison.
Knowingly Providing A Facility Where A Crime Can Be Committed Or Completed
Going beyond urging others to commit a crime, what about actually helping them commit it or profit from it?
Renting A Distribution Site For Stolen Property
Suppose I owned a big warehouse and I divided it up into dozens of smaller sections which I rented to burglars. After a robbery the burglars would rent a space and people could then wander through my warehouse and purchase any items of stolen property they might like.
Would I, the landlord, have committed a crime?
Renting Cells That Hold Kidnap Victims
Suppose the same situation except that instead of renting areas for the display of stolen property my warehouse was divided into dozens of locked rooms that I rented to kidnappers as a location where kidnapped people could be imprisoned while the kidnappers waited for the families to pay the ransom.
If I charged a flat rent per day would I be guilty of a crime?
What if I charged a percentage of the ransom received? Would that make me any more guilty?
What if I acted as an escrow holder, accepted the ransom payments, and upon verifying payment I had one of my employees release the victim and transport him/her home?
Would I then be even more guilty of a crime?
BTW, if this scenario interests you, I highly recommend Jack Vance’s The Killing Machine which describes a facility called “Interchange” that holds kidnapped persons and acts as the escrow agent for the payment of the ransom.
Renting Studios That Make Child Pornography
What if my warehouse was broken into rooms outfitted with lights, microphones, beds and cameras which could be rented by people who wanted to produce child pornography? They would bring the children to my warehouse, pay my fee, I would give them the key to one of my mini-sound stages, they would make their movies, then they would take the child and leave.
In that case would I have committed a crime?
My Legal Responsibility Doesn’t Change Depending On The Type of Crime I Facilitate
If it’s a crime for me to rent out child pornography film studios then it’s also a crime to rent cells to hold kidnapped people. If renting cells that hold kidnapped people is a crime then it’s also a crime to rent mini-stores that sell stolen property.
Yes, making child pornography is a worse crime than kidnapping which is a worse crime than burglary but those are only differences of degree.
As far as the liability of the landlord is concerned the principle in all three examples is the same, namely, a landlord is renting his property to criminals knowing the criminals will use it to as an integral element in the conduct of their criminal enterprises.
If you want to do that, how do you define the crime?
“OK,” you say, “we treat it just like the terrorism statute. We say that knowingly providing material support for a serious criminal activity is a crime. We define ‘material support’ as knowingly providing products or services that materially aid in the: commission of the crime, financing the crime, collecting money which is proceeds from the crime, or distribution of the proceeds of the crime.”
Skipping over the fact that “material aid” is at best a nebulous term that could mean almost anything, we’re still not out of the woods.
Renting Office Space To Perform Administrative Work For A Criminal Organization
If we adopt the above rule, what if I rented a floor in my office building to a corporation that I knew was a front for a drug cartel?
If I knew they were packaging drugs in my building then I probably would be acting illegally under the above rule, but what if I knew that they were only using the office space to order and pay for the little plastic bags and empty pill capsules that they used to package their drugs?
The difference is that packaging drugs is a crime in and of itself while ordering plastic bags isn’t.
So, maybe I would still be doing something illegal under the above rule but maybe not.
What if I knew that my tenant was only handling the paperwork for the payrolls for employees of other companies owned by the cartel?
Processing paychecks and filing tax-reporting forms isn’t in itself illegal and it isn’t a direct part of the business of selling illegal drugs.
That would probably not be illegal. Right?
What if while I knew that my tenant was a front for a drug cartel, I didn’t know exactly what they were doing in my building?
Almost certainly I would be in the clear. Right?
Things Are Not Black & White
The real problems in how we’ve defined the crime are the words “knowingly” and “materially.”
If I own a trucking company, do I really know what’s actually in all of the boxes in all of my trucks? Is it reasonable to require that I open every box to confirm its contents?
Are there red flags that would have alerted a reasonable trucker that certain shipments might contain illegal material and I ignored those red flags because I didn’t want to know what was in the boxes, or did I ignore the red flags because I’m just lazy and as long as my customers pay their bills I don’t want to expend any more effort than I have to?
Is It Any Different If I’m Hosting A Web Site That Does These Things?
What if instead of me being a landlord who was renting a physical building to people who I knew were using my property as a vital element in their criminal enterprises instead I was renting those criminals virtual real estate in the form of my web site publishing ads for the sale of their stolen property, their ransom demands, or their child pornography?
Instead of customers wandering around my warehouse shopping for stolen property the customers would browse my website where the burglars published their inventory of stolen property for sale, or the kidnappers posted their ransom demands or the child pornographers offered their movie libraries?
When we expand this discussion from the physical distribution of contraband or stolen property to its electronic distribution, we have to ask what is a reasonable burden to put on the web host requiring him/her to know what’s being done on their site?
How hard does Facebook have to work to find posts that aid criminal activities in order to avoid having some criminal liability being imposed on it? How hard is it for Facebook to actually find those crime-related posts?
Does the fact that I’m renting a virtual presence instead of a physical location make any difference in how legal or illegal my activities are?
In the landlord example I’m dealing with actions — renting my building to people who use it to commit crimes.
In the web site example I’m dealing with speech — hosting a platform people are using to say things that promote a crime.
But does the speech really make how we should deal with the two situations any different?
If I kill someone that’s a crime. If I order a hit man to kill someone, it’s speech but it’s still murder. If I ask some member of the public to kill someone, it’s speech but it’s also still murder.
Isn’t the fact that instead of pulling the trigger I tell someone else to pull the trigger really a distinction without a difference?
Shouldn’t the person who hosts a web site that offers streaming child pornography be just as guilty as the guy in an adult bookstore who offers a physical child-porn magazine for sale?
It doesn’t really matter, does it, if the child pornography is distributed physically or electronically?
If I own a trucking company and I accept money to knowingly transport child porn magazines to a network of distributors then under the “knowingly providing products or services that materially aid in the commission of a serious crime” definition I still would be committing a crime.
If I own a web site that electronically rather than physically knowingly hosts child porn, isn’t that another distinction without a difference?
The medium of distribution of the contraband doesn’t change the distributor’s criminal responsibility for doing it.
Moving Past Crime Into Issues Of Privacy — Publishing Pictures Without The Subject’s Consent
OK, we’ve now proposed a rule that’s supposed to govern what a web-site owner can and can’t do with regard to speech that advocates or facilitates the commission of a serious crime.
Does that mean that if posting a picture of your naked girlfriend taken without her consent isn’t a crime, then the web site you upload it to can continue to show it?
Let’s think about rules relating to privacy.
Pictures Of Celebrities Directly Used For Commercial Purposes
It’s established law that celebrities own the economic rights to their own images. Without Brad Pitt’s consent I can’t legally snap a picture of him at the beach holding a Budweiser and then publish that picture in GQ with the caption: “Brad Pitt Loves Bud. Give it a try and you will too.”
Pictures Of Non-Celebrities Directly Used For Commercial Purposes
Similarly can’t legally snap a picture of Joe Nobody with a Bud and without Mr. Nobody’s consent publish an ad with the caption: “From Joe Sixpack To Joe Montana, Everybody Loves Bud.”
Intimate Pictures Of Non-Celebrities Used For Indirect Commercial Purposes
What if I snapped a picture of my girlfriend getting out the shower and I sold it to the site: www[dot]NakedPeople[dot]com?
Does it make any difference that she’s not a celebrity and that her image is not being used to endorse a specific product, but instead is being used to draw people to a web site that makes its money by selling banner ads that appear on every page along with the pictures of the naked people?
Someone might argue that she should have the right to block the publication of her picture because it was taken without her consent and thus her boyfriend never had any legal right to publish it in the first place.
OK, suppose that this was a picture that she had posed for so that he could have a sexy image of her to look at while he was away on National Guard duty. Of course, she assumed that he would keep it private but there was no specific agreement between them about what he could and couldn’t do with that picture.
He took the picture so he owns the copyright. She posed for it so it was taken with her consent. There was never any agreement between them limiting what he could do with it.
Why wouldn’t he have a legal right to sell it to magazines and web sites?
What Things Should You Have The Right To Keep Private?
A person’s right of privacy is not just about pictures. What if you copy your girl friend’s diary and without her consent publish all her private thoughts, hopes, dreams and fears?
Should that be OK? And if not, on what grounds are we going to make it illegal?
You could say that because she wrote it she owns the basic copyright on the diary so it’s publication without her written consent would represent an infringement of her copyright.
But that argument won’t deal with the issue of publishing her naked picture that she posed for. The photographer not the subject owns the copyright to a photo.
Suppose that in addition to the law that says that every person has the right to prohibit the distribution of any public or private photos of themselves which are sought to be used for commercial purposes, we also say that every person has the right to prohibit the publication or distribution of any photos of themselves taken in a nonpublic place no matter what purpose they are proposed to be used for?
If I take off all my clothes and wander down a public street, then I’ve put my image in the public domain and it can be published. If I let my boy friend/girl friend take a picture of me naked then we haven’t put that picture into the public domain and as the subject of the photo I should have the right to veto its use or publication if I want to.
This would mean that it would be illegal for a revenge porn site to publish naked pictures of me unless I consented to the publication in writing.
There Are Few Easy, Black And White Answers
Should it be a crime for someone to rent movie studios to pedophiles to film child pornography? It’s pretty easy to answer that with a big “Yes.”
Should it be a crime for someone to run a web site where pedophiles are allowed to upload and stream child pornography? It’s pretty easy to answer that with a big “Yes.”
Should it be a crime for someone to sell a magazine containing pictures of naked people in their shower that the publisher knows were taken by a peeping Tom? It’s pretty easy to answer that with a big “Yes.”
Should it be a crime for someone to run a web site that displays pictures of naked people in their shower that the site owner knows were taken by a peeping Tom? It’s pretty easy to answer that with a big “Yes.”
Should it be a crime for someone to run a web site that displays pictures of naked people taken in nonpublic locations without obtaining their written consent. I would say that’s a “yes.”
After that the answers get incrementally more difficult.
– David Grace (www.DavidGraceAuthor.com)