Friday, November 19, 2010

Cyber Privateer rules of engagement: Part Deux

Continuing yesterday's discussion on rules of engagement (and tipping my hat to the "inept French privateer" in naming this post), we've handled item #1 of the four  "got'chas" contributed by security author Paco Hope: (1) identifying the (real) perpetrator; (2) determining guilt; (3) applying a fair law; (4) meting out punishment to the guilty. Yes, identifying the REAL bad guy is a stretch, but let's assume for a moment we have met a reasonable standard of proof.

What about determining guilt (#2), applying fair law (#3) and meting out punishment to the guilty (#4). There is an element of subtlety in these three questions that completely escapes me. Once you find a perpetrator, the last three really become moot issues. Of course, I grew up in Wyoming where horse thieves were, in the good old days, routinely hanged. And I modeled the judge in my novel DADDY'S LITTLE FELONS (a working title) after my dear friend Judge Pat Brian, who died this year of pancreatic cancer. Once a year for four years, I'd arrange to take teenage boys and girls out of school so they could visit Judge Brian's courtroom on "show cause" day (Friday). "Show Cause" hearings had to do with parole violation, bail jumping, or sentencing of criminals. Judge Brian could handle fifteen or twenty such cases in a day, and I found them terribly interesting because they completely encapsulated a case—beginning, middle and end—in one sitting. Judge Brian really gave me the idea from which my novel germinated, a kind of old-west justice system where shades of guilt, vagaries of law, and meting punishment were fairly binary. For example . . .

One of Judge Brian's cases involved a repeat drunk driver. The kid was a construction worker who'd had a couple of beers after a hard day on the job, and got pulled over. Again. The judge had some latitude, and gave the kid two choices. Go to jail for 30 days or wear a T-shirt on which was written (front and back) "I am a drunk driver." The judge had his own T-shirt printer, so the kid couldn't do small letters. The kid chose the T-shirt and got pulled into Judge Brian's court because he'd been seen on the job without the T-shirt. Facing almost sure jail time, the construction worker explained that it was raining and that he put a clear plastic jacket on over the top of his T-shirt, and that he figured people could easily read the letters through the clear plastic. The judge relented, but told him that from now on, the T-shirt had to be worn OVER any jacket. Then, interestingly, Judge Brian asked him what he thought about the sentence he'd chosen. The kid said, "Your Honor, I didn't realize how badly people hated drunk drivers. I'm never going to drink and drive again."

Which brings me to privateer rules of engagement. It's binary. As a cyber thief, you stand to lose anything you have that can be monetized by a creative privateer. Period. This kind of hang-em-high/horse-thief justice will likely have the A.C.L.U. frothing at the mouth. I'm used to that. Back in 1978, I debated the head of the New York A.C.L.U. on national television (The McNeil-Lehrer Report) about the use of my invention, a voice stress analyzer that can covertly determine over the phone if the person to whom you are speaking is lying to you. The A.C.L.U. lady said, "That's an invasion of privacy!" Whereupon I calmly agreed with her. "Yes, Maam, it is." Then, before she could turn her smug look into some inane statement to the effect that she'd won the argument, I said, "But if the U.S. Congress declares the covert use of my voice stress analyzer to be illegal, I'll just run an ad in the Wall Street Journal showing how anyone can build one of my devices for about $600 worth of Radio Shack parts." Man, I thought the top of her head was going to come right off. I really loved pushing her buttons.

Here's the reality of hang-em-high justice. Very few people will get hung high. Consider the hypothetical situation from yesterday's post. Some sixteen year-old kid tries his hand at cyber crime on his mother's computer. He gets caught (not his mother, but him). The cyber privateering organization cleans out his college savings account. He says, "Oh damn!" and invokes the right of parley in the Cyber Privateer Code. We have a pimple-faced kid in a video conference with Mrs. Black, the cyber privateer parley contact (by the way, I'll be nominating my Mrs. Black to my Cyber Privateer Fantasy League in tomorrow's post). He says, "Please Mrs. Black, all I wanted to do was buy an iPad, and I promise never ever to do this again." Actually, he does considerably more groveling than that, but you get the point. An enlightened cyber privateering organization could get some serious mileage out of this PR stunt, not to mention a future recruit. So Mrs. Black negotiates to return his college fund in the form of a full scholarship to MIT "provided the kid serves an internship with the privateering organization and provided he keeps his nose clean evermore." Naturally, both he and his very irritated mother will have to sign a liability release as well as allow the public video-chat session to be used in advertising for the cyber privateering organization any way the see fit.

Yes, shades of Judge Pat Brian and frontier justice. The simple reality is that a cyber privateering organization can get a lot of mileage out of occasions like this, and that mileage will be far more valuable than grabbing a few thousand dollars out of some petty thief's bank account.

What about the "double, triple or gazillion-uple jeopardy" mentioned by Paco? Tough justice, but too bad (sorry A.C.L.U., but I'll debate your representatives any time, any place as long as the audience is on national TV). A cyber thief or a rogue government must be deterred. The threat of absolute financial ruin is the best deterrent. The way our courts function, forget the death penalty. But total, unambiguous, absolute financial ruin, now there's a deterrent! A disproportionate response? Again quoting from Heath Ledger in his last role as the Joker, "Now you're talking!"

Stay tuned tomorrow for my nomination of Mrs. Black to my Cyber Privateer Fantasy League team.

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Implementation suggestions for THE MORGAN DOCTRINE are most welcome. What are the "Got'chas!"? What questions would some future Cyber Privateering Czar have to answer about this in a Senate confirmation hearing?