Subject: RE: DEPLOY: Legal liability for creating bounces from forged mess ages

From: "Hallam-Baker, Phillip" <[email-masked]>
Date: Tue, 24 Aug 2004 13:57:54 -0700

> > What the computer 'knows' is not relevant to Mens Rea, only
> > individuals
> > and corporations are subject to criminal law.
> 
> Wrong.  If what you say is true then I could create a 
> computer program that creates/collects illegal
> material (credit cards, kiddie porn, whatever) and because it 
> is the computer that is doing the work
> I am not criminally liable.

This is 
  1) A non sequitor
  2) Sophistry
  3) Written by someone lacking the standing to say 'wrong'.

In this particular hypothetical it is clear that the Mens Rea existed
when you configured the computer with the express intent of 
performing that action. It is no different from pulling a trigger
on a gun to commit murder. The computer and gun are merely a tool.

There is no comparison between those scenarios and a case where
the consequence is neither intended nor likely. And here 'likely'
has a very specific meaning which your hypotheticals do not reach.

> Your being silly.  If someone uses a knife or gun to commit 
> the crime, the justice system prosecutes
> the person.  The computer is just another such tool.

But you do not claim that the knife or the gun had 'knowledge' or
'intent' which was exactly what you did claim. 

The operator of a mail server clearly does not have knowledge or 
intent in these cases.

> > Sure you can find some really obscure offenses if you dredge
> > up obscure
> > parts of English law. That does not mean that there is the slightest
> > chance that a Home Secretary is ever going to allow a prosecution.
> >
> 
> But we are not talking obscure.  Porn and Phishing are 
> serious criminal offences perpetrated every
> day on the internet using the SMTP protocol.
> 
> And FYI the internet is not just for the UK.

You brought up English law, not me.

The same arguments hold for any common law jurisdiction.