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Monday, January 24, 2011

Evading the Law, Group Style...

I came across a site called the other day.

This company offers a free app for most smartphones that allows you to record the locations of police activity, speed traps, red light cameras, and so forth into the phone.  The information is transmitted to the trapster site and everyone and anyone else in the area is able to see where these things are.

This is not a new concept.  Back in the 1960's and 70's, perhaps earlier, drivers would flash their highbeams to indicate a speed trap to drivers in the oncoming lane as a courtesy.  It was sort of an unwritten rule of the road which everyone followed.  According to this the legality of highbeam flashing varies wildly from state to state.  In some states is perfectly legal free speech, in others its a offense carrying a stiff fine.

At issue is whether or not such activity (alerting others to police activity) is in and of itself a crime.  For example, in Maryland, flashing headlights is considered to viloate laws prohibiting obstruction of a police investigation (see this article).

According to this summary of US law there are many ways to obstruct justice - and though this is mostly related to federal law the actions of some states, such as Maryland, reflect how this law might be interpreted.

So, if you're busy with trapster while driving along the highway (and presuming your passenger is filling out the trapster data so that you are not yourself violating any laws related to use of cell phones while driving) are you perhaps conspiring with your fellow drivers to "obstruct" a police investigation?  Or are you merely exercising your rights to free speech?

Certainly there are many types of criminal conspiracy: planning to commit a burglary with someone, for example.  In these cases using your cellphone to call your buddy to plan such an activity is part of the conspiracy.  But is it a crime to call you buddy and alert him to a police traffic investigation as with trapster?  This is much less clear.

When we look at these kinds of things we need to examine the consequences of "where does it end"?

If, for example, I am involved in looting in NYC during a power blackout and I use something link trapster to evade arrest I think you would agree that I would be committing conspiracy.  Looting is a crime.  Similarly if I was committing burglaries and using something like trapster to evade a police investigation.

On the other hand, most people do not really believe that if they are driving over the speed limit they are really committing a crime (though in fact you are).  The reasons for this are not so clear but I think its mostly that people believe they have the right to travel at any reasonable speed they feel they can as long as they do it safely.  Of course there generally aren't any problems with this so long as no police are around.

The police might be able to look at the GPS information your phone sends to cell towers are you drive along.  This data would be plotting you exact location every so many seconds which would offer clear and convincing evidence of, for example, speeding.  While you might scoff at this consider that once law enforcement figures out you cellphone is somehow involved in your speeding activity, say by using trapster, then whatever that phone does during the commission of your "crime" is also subject to policy scrutiny.

(If you don't believe this just as Scooter Libby or Martha Stewart - both convicted of lying about their supposed crimes - not actually of committing the crimes themselves.)

So if the police stop you and ask you if you were signaling  people about the speed trap and you say "no" even though your had used trapster - suddenly you are convicted of a much more serious crime than speeding: lying to a police officer, obstructing justice, and so on.

To me this falls into the same category as giving an underage child a cellphone - and then the child breaks child pornography laws by sexting.

A piece of technology created for one purpose - calling others or taking pictures or communicating via the internet - suddenly becomes a means to commit crimes - either knowingly or unknowingly.

One imagines that kids in particular might find creative uses for this type of technology which would create all sorts of legal problems - it probably goes on already but its less clear that the activity is institutionalized with web sites: cheating on tests, indicating the best place to race cars, shoplift, etc.

The problem is that unwittingly creates a motivation of for law enforcement to "ratchet up" against these activities.  Sure the activities are basically "free speech" - but creating an environment where the purpose of the speech, e.g., flashing headlights, is used to "evade the law' gives the "law" reason to investigate.

I wrote about Groupon a while back - while this is a perfectly legal version of trapster what happens if faux groupons are used to get a "deal" that was actually fraud?

Part of the problem is that with technology things happen so much more quickly and easily than with hard copy (think coupons) the fraud might not be detected until much later if ever...

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