Technological self-help and equality in cyberspace.

• Author: Chandler, Jennifer A.

New technologies challenge the law in many ways, for example, they extend one's capacity to harm others and to defend oneself from harm by others. These changes require the law to decide whether we have legal rights to be free from those harms, and whether we may react against those harms extrajudicially through some form of self-help (e.g., self-defence or defence of third parties) or whether we must resort te legal mechanisms alone. These questions have been challenging to answer in the cyberspace context, where new interests and new harms have emerged. The legal limits on permissible self-defence have historically been a function of necessity and propertionality to the threat.

However, this article argues that case law and historical commentary reveal that equality between individuals is also an important policy issue underlying the limits on self-defence. The use of technologies in self-defence brings the question of equality to the fore since technologies may sometimes neutralize an inequality in strength between an attacker and a defender. A legal approach that limits resort to technological tools in self-defence would ratify and preserve that inequality.

However, the relationship between technology and human equality is complex, and this article proposes an analytical structure for understanding it. The objective is to understand which technologies promote equality while imposing the least social costs when used in self-defence. The article proposes principles (including explicit consideration of the effects on equality) for setting limits on technological self-help, and illustrates their use by applying them to several forms of cyberspace counter-strikes against hackers, phishers, spammers, and peer-to-peer networks.

Les nouvelles technologies posent de nombreux defis en droit. A titre d'exemple, elles augmentent la capacite des individus d'infliger du mal a autrui, mais aussi leur capacite a se defendre du mal. Ces changements exigent du droit de decider si nous avons ou non le droit, juridiquement parlant, d'etre a l'abri du mal. Le droit doit aussi decider si nous sommes libres de reagir au mal de facon extrajudiciaire, par l'entremise d'initiatives personnelles (par exemple, l'auto-defense ou la defense des tierces parties) ou si au contraire nous devons nous en tenir aux mecanismes juridiques. Ces questions posent un defi particulier dans le contexte du cyberespace, d'ou emergent de nouvelles menaces et des interets nouveaux. Les limites juridiques de l'autedefense permissible dependent historiquement de la necessite et de la proportionnalite de la reaction face a la menace.

Cet article soutient toutefois que la jurisprudence et les commentaires historiques revelent que l'egalite entre individus constitue aussi une question de politique importante qui sous-tend les limites de rautodefense. L'utilisation des technologies dans l'autodefense porte donc au premier plan la question de regalite puisque la technologie peut parfois neutraliser une inegalite de force entre une personne qui attaque et une autre qui se defend. Une approche juridique qui limiteralt l'utilisation d'outils technologiques dans rautodefenso enterinerait et preserverait cette inegalite.

Pourtant, la relation entre la technologie et l'egalite entre humains est complexe. Cet article propose une structure analytique pour mieux saisir cette relation. L'objectif est de comprendre quelles technologies favorisent l'egalite tout en imposant les cofits sociaux les moins eleves lorsqu'elles sont utilisees pour l'autodefense. L'article propose des principes pour mettre en place certaines limites aux initiatives personnelles technologiques. L'article illustre aussi l'utilisation de ces pnncipes en les appliquant a de nombreuses formes de riposte contre les pirates informatiques, les hammeconneurs, les polluposteurs et les reseaux pair a pair. Enfin, l'article considere explicitement les effets de ces principes sur l'egalite.

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Introduction I. Defining Self-Help, Technology, and Equality A. Self--Help 1. A Definition of Self-Help 2. The Reasons For and Against Allowing Self-Help B. A Definition of Technology. and "Technological Self-Help" C A Definition of Equality II. The Relationship Between Technology and Equality III. Principles for Technological Self-Help A. Proposed Principles for Technological Self-Help B. Some Forms of Self-Help in Cybercpace 1. Denial of Service Attacks 2. Counterstrikes, Malware, and Hacking 3. Data Poisoning 4. Defamation Attacks C. Application of the Principles to Self-Help in Cyberspace Conclusion Introduction

Self-help refers to a set of actions that the law permits people to take in the pursuit of their legal rights. The law has long permitted various forms of self-help, including self-defence, the defence of property, and the defence of third parties, although only within cautious bounds. One area of ongoing debate regarding self-help is whether counter-strikes should be permitted in cyberspace against, for example, hackers, phishers, spammers, and peer-to-peer networks. The difficulty and inefficacy of law enforcement online particularly in dealing with the high volume of fraud and other financial harms--has resulted in self-protection becoming the normal recourse and has also encouraged more aggressive forms of self-defence (as an alternative to invoking state protection).

Self-defence is permissible when it is necessary and when the action is reasonably proportional to the threat. The issue of the inequality in strength between parties is not an explicit consideration in assessing whether a given action in self-defence is permissible or not, although it is considered implicitly. This article argues that the issue of equality of strength--understood more broadly than physical strength alone should be an explicit criterion for determining the proper limits on the use of technologies in self-defence.

Where an attacker and a defender are of unequal strength, a legal approach that prohibits resort to technological tools in self-defence would ratify and preserve that inequality. In these cases, technologies could neutralize the inequality in strength; for example, the nineteenth-century nickname for the Colt handgun was "the Equalizer". As is the case with the handgun, technologies may raise the risks associated with self-help and may impose other social harms while at the same time having this equalizing effect. Another problem with permitting the use of technologies in this way is that it may fuel a technological arms race, as parties seek to gain the technological advantage. Regulatory choices about such technologies and the willingness to condone their use in self-defence require a balancing of these competing considerations.

The relationship between technology and human equality is complex, and this article proposes an analytical structure for understanding it. The objective is to understand which technologies promote equality while imposing the least social costs in terms of escalating violence, accidental harm to bystanders, and wasteful arms racing. Such technologies should be permissible for use in self-defence, subject to the possible requirement that users compensate injured bystanders.

The article will proceed in the following way. First, I explain the terms "self-help", "technology", and "equality" as I define them in this analysis. Second, I propose a structure for understanding how technologies affect human equality. Third, I propose principles--including a consideration of their effects on equality--for setting limits on technological self-defence, and illustrate their use by applying them to several forms of counterstrikes under consideration in cyberspace.

1. Defining Self-Help, Technology, and Equality

   1. Self-Help

      1. A Definition of Self-Help

         In law, self-help is a category of actions that individuals can legally undertake without state assistance in order to protect their own legally-recognized rights. Extra-judicial self-help remedies arise in numerous areas of the law, allowing people to use force in self-defence, in defence of property--including chattels--or in defence of third parties. (1) Categories of self-help also exist to permit people to trespass on property to abate nuisances, to retrieve property, and, in certain circumstances, to destroy the property of others. (2) It is necessary here to say a few words about the separate parts of the proposed definition.

         First, we are concerned in this context only with those actions undertaken in serf-help that would be illegal but for a specific exemption or privilege such as, for example, serf-defence or abatement of nuisance. (3) There is a whole range of legal actions that individuals may undertake in order to promote their own interests, such as using locks or building fences on their own property. This range of clearly legal activity tends not to be at issue in cases dealing with the legal limits on what may be done by way of serf-help. It is nevertheless useful to keep these additional forms of legal activity in mind, as some such actions that are currently legal may be made illegal or vice versa. This is important in cases where the serf-help activity involves a new form of technology. Emerging forms of unregulated technologies routinely challenge our understanding of what actions are legal or illegal in pursuit of self-interest, and what actions are privileged despite being illegal.

         Second, an implicit part of the definition is that the interest pursued by the individual must be a legitimate interest. The meaning of "legitimate interest" is not clear, as this may be understood narrowly to mean only legally-recognized rights, or it may extend more broadly to include genuine interests that are not recognized as legal rights. One may have a genuine interest in many objectives ranging from illegal interests (e.g., to steal property), through a range of less clearly illegal interests (e.g., to access information...