<<Spoilers Below>>

The Dark Knight is a good film.  What made it a great film for me – a man who has just spent a year writing a thesis on game theory – is the amount of game theory contained within it.  The most obvious is the ferry situation.  There has been some extremely good discussion on the blogosphere in regard to the game theory in the movie: here and here are what I found to be the best.  If you are interested in this, I suggest reading those blogs – and the comments – before proceeding with the rest of this post.  It will give necessary background.

The ferry situation could be described as a prisoner’s dilemma or a game of chicken. However, as the two aforementioned blogs point out, the situation is certainly a game of chicken with a twist.  Emphasis on the twist.

Here is my analysis for the situation:

Each boat has a choice of “Detonate” or “Not Detonate.”  However there is a chance that (1) Batman finds a way to prevent the Joker from detonating the boats if they both choose “Not Detonate” – which happens or (2) the Joker was dishonest in that he’d blow up the boats or (3) the Joker’s description of the rules are in some other way dishonest – he’ll blow up the boats anyway, etc.  The entirety of this chance could be represented as a chance node: p = probability that Batman can foil the Joker’s plan or the Joker was dishonest to the benefit of the people on the boat; (1-p) = probability that the game is exactly as the Joker states, or worse.  I assign payoffs as follows: 7 = live without blowing up the other boat; 5 = live with blowing up other boat; 0 = die.  (You could also complicate matters further by adding another payoff of 1 = die but with the dignity of not blowing up the other boat.  It would, however, not change the Nash equilibrium.)

The game tree would appear as:

Hopefully I’ll have a bit more time to work on developing this over the next few days.  Some great fun can be had with it.

– Timothy DeHaut


You can name a perfume “Opium” and an energy drink “Cocaine,” and no one will stop you, Greg Beato writes in the latest issue of Reason Magazine.  But try to promote a new craft beer with the slogan “try legal Weed” (the beer in question happens to be made in the small town of Weed, California), and you will face a legal roadblock from the Alcohol and Tobacco Tax and Trade Bureau (TTB).

It should go without saying that it’s perfectly legal (and protected under the First Amendment) to make drug references.  So why does one government agency (the FDA) let such references go while the TTB clamps down on them?

Beato’s article suggests that Congress has seen alcohol and tobacco as being more taboo and thus meriting more regulation.  The article quotes Robert Lehrman, an attorney who has dealt with the TTB, who raises this hypothetical dilemma: “What would you do if somebody handed you, I don’t know, Hannah Montana beer, and said, ‘Please approve this’?”

Now I’m all for helping the kids; I think that something should be done to stop companies that sell alcohol and tobacco from targeting children.  But I do not think that the TTB, an organization that reviews more than 100,000 labels each year, is the proper mechanism.

We all remember Joe Camel, the friendly cartoon camel who, from 1987 to 1997, graced advertisements for Camel cigarettes.  Joe Camel is a good example of the proper way to police this sort of behavior.  It was not government oversight through the TTB or any similar organization that brought down Joe Camel, but rather the pressure of a private lawsuit that eventually led Camel to voluntarily pull the ads.

The various drug references, crude jokes, and bared breasts that are excised from product packaging under the watchful eye of the TTB are, by and large, most likely quite innocuous.  There’s no indication that a microbrewery in California whose labels read “try legal Weed” is going to have anywhere near the sway with children that Camel did.  (A 1991 survey showed that more 5 and 6 year olds recognized Joe Camel than Mickey Mouse or Fred Flintstone.)  Much better then, as in the Camel case, to deal with these social problems through private litigation once they actually arise than to censor businesses before their products hit the shelves.

Daniel Corbett

My earlier post on the internet and knowledge focused primarily on the interface between technology and human understanding. In this post, I would like to address the larger question, that is, what to do about America’s “knowledge deficit.”

Most of us have, at one point or another, heard alarming statistics about the precipitous decline in the the average American’s knowledge on a variety of topics.

For instance, one in four Americans, according to the National Constitution Center, cannot name any First Amendment right, and 62 percent cannot name the three branches of government.

Before we can discuss solutions to this problem, we must first understand the root cause(s). For some, Google is the chief culprit. The idea here is that, despite the fact that technology has made our lives easier and given us greater access to knowledge, it provides a sort of “safety net” (personally, I like to refer to Google as an “external hard drive for my brain”) that allows Americans to be less informed, or at least less able to recall large amounts of information. For the reasons given in my earlier post, I think this view is largely incorrect. Instead, I think there are two stronger contributing factors, each occupying very different ends of the cultural spectrum.

First, I would argue that the “softening” of educational standards is quite obviously a strong contributing factor. By this I mean that certain educational reforms, such as deemphasizing rote memorization while emphasizing “self expression” have, quite obviously, resulted in a populace with a reduced ability to recall particular facts. (One of my favorite examples is the virtual nonexistence of sentence diagramming in public school curricula, but maybe this is just because I still carry resentment for all the sentences I diagrammed at a young age.) Ironically, in the quest to do away with “winners and losers,” America’s public schools are seemingly creating more losers.

Second, I would argue that current populist sentiments are making knowledge and intelligence less desirable. Susan Jacoby, in a recent piece for the New York Times, argues precisely this, tracing the origins of anti-intellectualism throughout history. This populist distrust of “elites” manifested itself in the recent Democratic primary, with Hillary Clinton downing shots of whiskey and discussing firearms and Barack Obama bowling a lousy 37 and lamenting the price of arugula. Clinton, trading on this fear of elitism, picked up a number of victories in big states.

I find it interesting that my first complaint is one typically raised by conservatives, while the second is mainly in the purview of liberals. I see the two as being intimately interconnected. That is, in order to erase this populist impulse that exalts simplicity over expertise and in order to address the true vexed question of our “knowledge deficit,” we need to establish some more rigorous standards in public education.

Why haven’t we done this? For their part, conservatives embrace tougher standards (perhaps even just for the sake of being “tough”), but they stop short when they feel themselves becoming too much like the “limousine liberals” they detest. And while it is liberal empathy for the underdog that keeps “softened” educational standards in place, perhaps the more telling fact is that many well-educated liberals have their children enrolled in private schools and have no qualms hiring rigorous French tutors for their six-year-olds. Now that is the kind of elitism that worries this arugula-eating mediocre bowler.

Daniel Corbett

I think it is appropriate to respond to Dan’s post not by my own response post but rather referring to an article that has been found by a Google search. I came across the article linked below weeks ago and thought it extremely interesting. The wonderful thing about the Internet is that knowledge (and opinion) is so accessible. One of the more important skills as a lawyer is to find information, not know it. It’s how to find things that is important. Similarly, today’s generation is expert in finding information. I can do a Google search and know about things in 45 minutes which would have taken other generations a lifetime to learn. It’s remarkable. The “public sphere” (do a little Google search for Habermas, it could be fun) is larger and more sophisticated than ever before.

So here’s my response: http://www.newsweek.com/id/138536/page/1

– Timothy DeHaut

Is Google making us stupid?

That’s the question Nicholas Carr poses to his readers in the Atlantic Monthly. Carr begins by noticing a frightening tendency among himself and his colleagues– the inability to digest the written word in substantial volumes. The internet makes it easier for readers to move seamlessly through different sources, skimming the information they want and discarding the rest.

Carr writes:

“When the Net absorbs a medium, that medium is re-created in the Net’s image. It injects the medium’s content with hyperlinks, blinking ads, and other digital gewgaws, and it surrounds the content with the content of all the other media it has absorbed. A new e-mail message, for instance, may announce its arrival as we’re glancing over the latest headlines at a newspaper’s site. The result is to scatter our attention and diffuse our concentration.”

Not only has the internet altered old media, but the inverse is true as well. In support of this claim, Carr cites the example of New York Times‘ recent editorial move to including in its print edition “article abstracts” which allow readers to get a quick “taste” of the day’s news.

There is, however, no good reason to assume that technology, namely the internet, is the sole impetus beyond the New York Times‘ decision. Indeed, the Wall Street Journal began giving its readers a quick “taste” of the news through its front page staple, the “What’s News” column back when the internet was still a twinkle in Tim Berners-Lee’s eye, during the tenure of Bernard Kilgore, which lasted from 1941 to 1967.

There are perhaps better ways of explaining the prevalence of “news snippets” such as these. First, human beings are curious by nature and have a desire to accumulate more knowledge, particularly knowledge of current events. Second, as the economy changes, people have more hectic schedules and are thus more inclined to prefer to get their news in the form of brief summaries.

I would be foolish to deny that Google and other internet companies have contributed to our collective short attention span. However, this is not where Carr’s critique ends. Rather, Carr goes on to paint Larry Page and Sergey Brin, Google’s founders, as being behind some sort of sinister plan to replace human minds with robots.

Yes, robots.

This is where Carr’s argument becomes stilted. Carr rattles off a variety of different quotations such as this one from Brin’s 2004 interview with Newsweek: “[c]ertainly if you had all the world’s information directly attached to your brain, or an artificial brain that was smarter than your brain, you’d be better off.”

Maybe it’s a matter of opinion, but I read Brin’s comment as indicating merely that it would be advantageous to have all of the word’s information readily accessible through one’s own mind (or at least to have a “smarter” artificial brain). To me, this is an uncontroversial assertion. (Of course it would be great to know everything there is to know!) Carr’s reading, however, is that Brin’s comment demonstrates some sort of ugly antihuman animus, waiting to play itself out when Google takes over the world.

At root, this difference in interpretation comes down to a difference in how one views intelligence. Those, myself included (at least in large part), in Google’s camp take a pragmatic view, favoring efficiency and greater access to information. Carr, for his part, rests on the notion that intelligence must contain something more than this.

Carr goes on to argue that, in a society increasingly connected to the internet, there is a risk that we will lose the ability to reflect and deliberate in the same way we have in an age dominated by print media. Carr writes:”If we lose those quiet spaces, or fill them up with “content,” we will sacrifice something important not only in our selves but in our culture.” Perhaps this debate comes down to a question of balancing the trade-offs.

Finally, it’s interesting to note that Carr at least recognizes the theoretical blind spot in his argument– namely that any argument against technological growth and for the status quo can easily be proved foolish in hindsight. Carr references Plato’s Phaedrus, in which Socrates bemoans the development of the written word. In his article, Carr more or less advances a line of argument which is actually quite similar to the one advanced by Socrates. Carr’s argument hangs on a notion of “true” intelligence and the value of tradition. The question, then, is whether Carr can convince his readers that this somehow a unique case.

I’m not convinced. Not when I can already see the enormous benefits of the internet’s rapid, voluminous nature. Intellectual pursuits are aided as researchers can collect information more efficiently than ever before, and people in all corners of the world are now able to access information and ideas that might would have certainly been unavailable 20 years ago.

Any thoughts? Anything I missed?

Daniel Corbett


In general, I agree with you and Professor Kerr. There is no question that this case involves despicable conduct that should not go unpunished. It is an open question, however, as to how the law should punish this kind of conduct. I believe that the government in this case is wrong in looking to 18 U.S.C. § 1030 to ground its legal theory. As Professor Kerr notes in his post, this statutory section clearly deals with cyberfraud involving compromised information that leads to a loss of value and not the sort of harassment/cyberbulling we saw in this case. (Note the statute’s persistent reference to “information of value.”)

If § 1030 does not help the prosecution here, then where should it look? Tim, you have rightly mentioned a tort law theory known as “intentional infliction of emotional distress” (IIED). Generally, the legal standard in this area is difficult to meet; conduct that falls within the definition of IIED is that which may be characterized as “outrageous” or “beyond the bounds of human decency.” Here, the facts of the case are so damning (defendant used an online pseudonym to defraud and harass victim, telling victim at one point that the world would be better off without her) that I would think the IIED standard would be satisfied.

Given that the prosecution likely has a viable theory for IIED, how should we proceed as a policy matter? First, as the prosecution suggests, we could read into § 1030 a cause of action for cyberbullying, effectively linking up IIED claims (and likely cyberbullying that falls short of IIED) with § 1030 claims. As you and Professor Kerr have argued, this is probably the wrong path to pursue, as it would effectively re-write a statute well beyond its intended scope, potentially creating a criminal cause of action for breach of online terms of use in the context of harassment. Second, we could simply require prosecutors to rely on traditional tort law theories such as IIED. This is the simplest solution, but it may not go far enough in addressing the very real problem of cyberbullying. The Internet has facilitated the speed, geographic scope, and anonymity of all manners of transactions. The result has been both positive (commerce has expanded rapidly and knowledge has been disseminated more freely) and negative (cases such as this one are, sadly, becoming increasingly common).

Perhaps, then, new legislation is necessary to “beef up” the punishment for cyberbullying beyond what tort law already provides. This possibility is fraught with difficult questions. For instance, what, exactly should constitute cyberbullying? Would the statute contain is own definition (necessitating some very difficult line-drawing) or would it rely more heavily on common law, non-Internet-related tort concepts? What role would websites terms of service play? Finally, what are the risks and benefits with the legislative approaches taken in the United Kingdom and in Ireland?

Related question (to which Tim previously alluded): what about the integrity of the Internet in this context?

Daniel Corbett

Suspending judgment momentarily on what the law and scope should be in regard to unauthorized access to data, I would like the examine what the law can be in the Meier case. §1030 could be used to cover the case. Whether it is wise to do so – again – let me suspend for a moment.

Technically speaking, Drew was unauthorized to use the MySpace servers in the way she did. An analogy can be drawn with passwords and authorization. If someone was granted a password to use a particular system, they are authorized to use the system. However, that authorization is not boundless. For instance, in the Allison case (R v Bow Street Magistrates’ Court and Allison ex p USA [2000] 2 AC 216) a credit analyst employed by American Express used her access to steal credit card numbers which she passed on to defraud AmEx and customers of US$1million. Her password gave her access but she was unauthorized to do what she did. The House of Lords (UK) said she was authorized only for her work purposes, not illegal purposes. This case – like the Meier case – is a violation of a contract which lead to unauthorized access to data.

<< Judgment unsuspended >>

Kerr argues that authorization should be code-based not contract-based. See in his posts and his article ‘Cybercrime’s scope: Interpreting “access” and “authorization” in computer misuse statutes.’ (2003) 78 NYULR 1596.

The argument – again – is the unauthorized access to data statutes should not be used in this way. The better way to proceed on these types of cases would be, for example in the Allison case above, to proceed under some fraud statute. Similarly, as I stated before, the Meier case would proceed better under a harassment or intentional infliction of emotional distress sort of claim.

It seems too broad to use the statutes in this way. I would suspect that most of us are violating terms and conditions – many of which we never or rarely read – every day. Should that be criminalized by this type of statute? It just doesn’t sit right with me. Proceed under copyright infringement, harassment, defamation – whatever the relevant offense. Leave the unauthorized access to data statute for hacking and similar offenses.

Timothy DeHaut

There has been a lot of talk in the news and in the blogosphere on the Megan Meier case in the last couple of days since the indictment [available here http://i.cdn.turner.com/cnn/2008/images/05/15/my.space.drew.indictment.pdf or http://blog.wired.com/27bstroke6/files/my_space_lori_drew_indictment.pdf].

To show a bit of the discussion: [http://volokh.com/posts/1210889188.shtml], [http://www.concurringopinions.com/archives/2008/05/megan_meier_cas.html], [http://cyb3rcrim3.blogspot.com/2007/11/causing-suicide-again.html], [http://blog.wired.com/27bstroke6/2008/05/myspace-indictm.html].

The case is a sad/disturbing one but involves some very interesting legal issues. Many areas of the law are incorporated including Internet law, contract, tort, criminal, and even some reasonably significant constitutional issues. Some of the issues overlap in interesting ways.

In this initial post, I would like to limit my discussion to the area of cybercrime and personal safety on the Internet for a number of reasons. First, I have not had the time to really read up on the issues such as the autonomy on the Internet, etc. It is not that I don’t find these areas extremely interesting, but I am currently studying for exams and don’t have the time. I’ll stick to something I am more familiar with. That said, in the near future, I’d like to get a discussion going on the other issues. If you can’t wait for me, have a read about the issues from the links above. Some of it is very good. Finally, I have an Internet Law and Regulation Exam on Tuesday and one of the topics which will come up will be cybercrime and personal safety on the Internet in the US, Ireland, and the UK. The post may reflect my dual purpose of studying for that exam and discussing a very interesting case.

The facts of the case

A 49-year-old woman, Lori Drew, is alleged to have helped create a false-identity on a MySpace account to contact Megan Meier. Megan Meier was a 13-year-old girl who thought she was chatting with a 16-year-old boy named Josh Evans. Josh Evans was the false MySpace account holder. The Josh Evans account and Megan Meier engaged in flirtatious conversation for some period. The two had a falling out. Then after receiving cruel messages from the Josh Evans account, including one that stated the world would be better off without her, Megan Meier hung herself in October 2006.

Legal issues

“The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government’s theory in this case is that Drew criminally trespassed onto MySpace’s server by using MySpace in a way that violated MySpace’s Terms of Service (TOS). Here’s the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn’t comply with these terms, the theory goes, so she was criminally trespassing onto MySpace’s computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).” [Kerr at Volokh, see above link.]

Personal Safety on the Internet

The case falls under a category of cyberbullying. Harassment can happen quite easily on the Internet. It also might be less noticed by those not directly involved because of the nature of Internet use. The Internet has been quite an effective means of bullying.[1] So what are the legal remedies within the US, the UK, and Ireland for cyberbullying?

Within the US, there is no federal law on cyberbullying. Here are the options that have potential for this case on the criminal law side: Harassment, I believe, could have been charged under state law. There are also two US suicide-related crimes: causing someone to commit suicide and assisting someone with committing suicide. This would probably not have worked though, see http://cyb3rcrim3.blogspot.com/2007/05/suicide.html reasoning. On the tort side: intentional infliction of emotional distress seems the likely candidate. Indeed, that is what the indictment used to go via 18 U.S.C. §1030. Under §1030, something “to further tortious conduct” is needed. The family would most likely have a tort claim, as has been stated by others (somewhere) in the blogosphere. §1030 is an odd way to go about the prosecution, see below.

Within the UK and Ireland, harassment is a criminal activity.[2] While the legislation is not Internet specific, there is no reason why it could not be applied as such. The harassment legislation could prove to be quite powerful if used to its full extent. On indictment and conviction, unlimited fines and 7 years imprisonment could be imposed under the Irish legislation. Intentional infliction of emotional distress would again seem to be the likely civil law remedy.

The weird way they are prosecuting the case

It appears as though the prosecutors are prosecuting in an interesting way. The prosecutorial reading of §1030 does not seem to the intended purpose of the statute. The case, if prosecuted similarly in the UK and Ireland, would seem equally as odd. The relevant statues in those countries would be the §5 of the Criminal Damage Act 1991 (IR) and the §1 of the Computer Misuse Act 1990 (UK). Basically, unauthorized access to data – the content of all these statutes – seems to intend to cover hacking and related crimes. It seems as though the prosecution is using §1030 to get it under criminal because the case is – quite obviously – one that is morally deplorable. But the way to go about it would be to bring the cause under some type of harassment / cyberbullying law. Here the UK and Ireland have the statute and would be able to successfully prosecute. The US federal law lacks this. However, I am still unsure why the authorities did not proceed under the state law. There is a reason – and it’s out there. I read it; I just forgot what it said. If you find it, comment. Ultimately I this way of prosecuting it will probably prove unsuccessful because making the contractual violation into a criminal offense is an extension that seems unwise. I generally agree with Kerr at http://volokh.com/posts/1210889188.shtml.

Much more to talk on this case, but hopefully there will be more to come from me and others.

– Timothy DeHaut

[1] see Hedley, The Law of Electronic Commerce and the Internet in the UK and Ireland, Cavendish, 2006 pg 151; see also ‘Modern bullies are seeking victims through cyberspace’, Times, 25 September 2004.

[2] Protection from Harassment Act 1997 (UK); Non-Fatal Offences against the Person Act 1997 (IR); see also Hedley, pg 152.

After an interesting discussion in my Cyberspace and the Law class this morning, I would like to throw out another question with which cultural relativism must grapple: what should we do about Internet censorship?

For instance, would a cultural relativist support a group like the OpenNet Initiative, whose goal is “to identify and document Internet filtering and surveillance, and to promote and inform wider public dialogue about such practices”?

On the one hand, this goal aims to promote a more open global dialogue about the issue, something which seems to be at the core of cultural relativism. But, on the other hand, don’t we have to assume an objective ethical baseline (censorship bad) in order to achieve this global platform?  As a logical matter, some methods of filtration and blocking must be removed in order for this dialogue to even take place.  How can cultural relativism reconcile this tension?

Daniel Corbett

Thanks for the links, Tim. It looks like we’ve got some pretty heady company in this discussion. Here are my thoughts on the discussion over at Concurring Opinions.

Initially, I have to give Braman some credit for his forceful defense of the tenets of cultural relativism. And, I must admit, I agree with some of these tenets, at least in the abstract. I would not contest the claim that an increased openness to other points of view and a greater emphasis on dispassionate assessment of empirical data are both desirable goals. Putting the merits of cultural relativism aside for the moment, I think it’s interesting that Braman at least appears turns his back on cultural relativism to some extent when he writes of female genital mutilation:

“I’m also open to the idea that, when done safely and when not physically traumatizing/destructive (at least when it is no more physically injurious than the typical male circumcision) and when done in a social context that lends it positive meaning, it may not be as abominable as I was previously inclined to think.”

Braman seems to be appealing to some fairly objective, concrete standards here. Granted, one could reasonably interpret this passage as simply claiming that female genital mutilation is perhaps not so “abominable” that it should be outlawed in all cases in the United States. I think this is a fair reading of Braman and is very likely what he was arguing. What I find problematic, however, is that implicit in Braman’s statement is the idea that he is making an outright assessment of the practice in general, finding it less reprehensible than once thought.

After all, why should we be concerned with safety? Or with the avoidance of traumatizing or destructive practices? Or with supporting “positive meaning?” If Braman is arguing that these are merely metrics that will help us determine whether the practice should be embraced in the United States, he is being intellectually honest. (In my opinion, this is a bizzare mental exercise. If these metrics could be successfully met, the practice would be bear little or no resemblance to the practice as currently conducted in many cases.) But to the extent that Braman would like his claim to be taken seriously by any culture other than the United States or a culture that practices female genital mutilation, he is being intellectually dishonest. How can cultural relativism reach beyond any particular culture? On what ground, if any, can this theory rest?

If cultural relativism is not completely right, as is my working assumption, we will need to find some sort of objective morality.

How do we begin to argue for an objective or innate morality? Psychologist Steve Pinker has recently noted that “[t]he moral sense, then, may be rooted in the design of the normal human brain.” Pinker’s article surveys various psychological research that demonstrates clear neurological reactions in patients encountering “moral” dilemmas. In short, when we make a moral decision, it lights up a particular part of our brain.

I am painting with an incredibly broad brush, of course. Pinker himself recognizes the potential for culture (and personal biases) to shape moral values. This is evident as Pinker humorously notes that, for some, “[d]riving a gas-guzzling Hummer is reprehensible, but driving a gas-guzzling old Volvo is not; eating a Big Mac is unconscionable, but not imported cheese or crème brûlée.”

There is no question that morality and society share a powerful and meaningful feedback loop. I think the so-called “white male effect” currently subject to academic scrutiny is a perfect illustration of this fact. The important thing to bear in mind, I think, is the fact that it is a feedback loop and not a one-directional system in which culture dictates morality.

Daniel Corbett

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