Legal Fictions: Technological Changes and the Law

legal padThe readers of this blog are amazing. I had originally planned to do a few introductory posts giving an overview of how legal systems work, but the comments to last week’s post raised so many interesting questions that I’m going to jump into one of those.

Vonda N. McIntyre wrote:

I’m wrestling with what a legal system might look like in a future in which people travel at relativistic speeds, so there’s a lot of time involved, though the people age slowly. Suppose you’re light-years from a place where a crime happened, and you recognize the criminal. How wild-west would this be?

I quite dislike SF in which people run around shooting people with few or no consequences, so would prefer to avoid having the protagonist whip out a raygun and shoot the war criminal.

This raises all kinds of fascinating questions.

Usually people accused of crimes are prosecuted in the jurisdiction where the crime occurred, but if the person hops a spaceship traveling at what Ursula K. Le Guin calls NAFAL (nearly as fast as light) speeds, several hundred years might pass before they’re back in that area. Neither the evidence or anyone who cares about the crime is likely to still be around.

Then there’s the statute of limitations. After a certain number of years, people can’t be prosecuted for most crimes, though there is no limit for murder and a few other crimes. (This is why the activists who burglarized an FBI office in 1971 can now come forward: the statute of limitations ran out a long time ago.)

If you decide the statute of limitations is tied to the accused’s lifetime, not the time in the place where the crime was committed, you’ve still got the problems with preservation of evidence, not to mention witnesses who died a century earlier.

Thinking about this makes it clear why so many SF writers take the easy way out and resort to the vigilante justice Vonda (and I) deplore.

The easiest solution would be to have an intergalactic tribunal that has jurisdiction over certain serious crimes and can prosecute someone regardless of whether they are in the jurisdiction where the crime was committed or not. This would require some kind of digitized upload of all significant evidence and testimony, not to mention an agreement between the various planets (and nations on those planets) about what crimes would be covered. I’d guess murder and big-time fraud a la Bernie Madoff would be likely candidates, while smoking pot would probably not merit inclusion.

I don’t particularly like this solution. Likely it would be run by professional judges, with no juries. In fact, since we’re talking science fictionally, it would probably be run by artificial intelligence. The accused wouldn’t get to confront any witnesses against them, though perhaps the AI could ask hard questions of everyone involved in putting together the materials.

While I’m not fond of criminals, I do have a certain amount of passion invested in making sure the accused get fair trials. In my mind, that includes having a defense attorney who can make the witnesses stumble. This system wouldn’t allow for that.

My only other thought is just letting the person get away with it if they can get off planet. Can’t say I like that one either, especially when we’re talking about some of the really nasty things human beings do to each other.

What other solutions can people come up with? There must be some other ideas besides vigilante justice, AI tribunals, and letting the criminal get off scot-free.

Right now dealing with crime in a NAFAL travel world is just an exercise in imagination, but already today we’re confronting technological changes that don’t fit easily into existing laws.

Privacy, for example. The federal government is harvesting cell phone and computer data. Verizon and Google know where I am whenever my phone or computer is turned on – and maybe even when it’s turned off. Many people say we can’t do anything about that because the technology changes so much faster than the legislative process. Law, as I’ve said before, is inherently conservative, while technology is moving at close to NAFAL speeds.

And, of course, we want the convenience of GPS and a phone that knows what time zone we’re in when we get off the plane.

What about threats? Threats delivered via Twitter or in comments to blog posts are a major issue, particularly for women. Most U.S. jurisdictions have laws against making “terroristic threats” – that means threats designed to scare the bejesus out of someone, not threats of a terror attack – but those laws don’t work well when it’s hard to figure out who is really making the treat. And if the person is halfway around the world, the local police have no jurisdiction.

Just looking at privacy and threat issue, I can see a need for greatly improved international cooperation on our one planet right now. The world has some international law, but countries tend to pick and choose whether they will go along with it. The U.S. is not a party to the treaties that allow international prosecutions against leaders of countries for genocide or crimes against humanity, just as an example.

It’s hard enough to change the law in one country fast enough to keep up with tech; just imagine how much longer it will take to negotiate treaties with all the necessary countries to deal with threat and privacy issues on an international scale.

There’s a reason why science fiction writers like one-world governments and intergalactic federations. Legally — and fictionally — they’re a lot easier to construct!



Legal Fictions: Technological Changes and the Law — 19 Comments

  1. Anne McCaffrey used the AI tribunal thing in Killashandra and I found it… unsatisfying, although it did the job of separating Killashandra from her lover.

  2. The reason why SF writers resort to vigilante justice so often is its realism: people as well as characters resort to it so often.

    • I don’t have any statistics on vigilante justice handy, though now I’m intrigued and am going to go looking for some. My gut tells me that people think about it a lot and threaten it a lot, but that it happens a great deal more often in fiction and movies than it does in real life. Our current legal system developed in part as a way to get rid of vigilante justice.

      Also, I’d like to think humans, as we slowly become more civilized, can move beyond such things. To my mind, one of the purposes of science fiction is to imagine ways we can do things that aren’t the ways we do them now.

      • Also, why on earth would we “move beyond” vigilante justice when we also have not “moved beyond” committing crimes and fleeing justice? If the question goes away the answer certainly would go as well.

      • You could consider any vengeance killing as vigilante justice, because the perp believes he/she is righting a wrong in killing someone who did her/him an injury.

        Thus the boyfriend/husband/ex- killings of women may be, in their own twisted minds, vigilante justice–society did not help the perp force the woman to stay with him.

        The very broken state of the justice system right now may or may not lead to more vigilante justice in the traditional sense (I have no statistics) but if not I suspect it’s because those who would do it know that the odds are very much stacked against victims who retaliate, and very much favors certain classes of those who victimize others.

  3. Wouldn’t you be tried in absentia? I think this is how several countries handle the problem of what to do when the main suspect flees the country and there’s little prospect of them returning. The court would then pronounce a verdict, and if guilty, an intergalactic warrant would be issued – which the defendant could appeal against at a later time. It’s the appeal process that would be problematic – with all the preservation of evidence and missing witnesses problem you mention – not the initial trial methinks.

    • That’s a definite possibility, and you’re right — it has been used in some high profile cases where an accused has fled a jurisdiction. It would preserve testimony. I don’t like it because the accused doesn’t get a decent chance to put on a case — conviction is pretty much dead certain and I think it’s frequently used in political cases. But it is certainly a tool that could be applied.

  4. You could combine judge, jury and executioner — this would make the unit portable as well. The comic book JUDGE DREDD does this. That’s why the protagonist is called Judge. He runs around in his SFnal universe finding criminals, proving their crime, and then pow! execution. There’s an entire corps of them (a judiciary, you might say) doing this; as you might imagine the point of the comic book is not examination of legal issues.
    Paying in absentia works out fine as long as you have no time effects. I, personally, would feel that justice has not been done if the fine for my murder were paid 500 years later.

  5. If they’re traveling on an NAFAL vessel and the vessel is military or paramilitary (I’m having Star Trek visions which I’m trying really hard to dismiss) is there any possibility that the spotter of the criminal might report him to the captain. In the absence of the legal tribunal, perhaps a military trial might be convened? (I am so out of my depth here. I suspect I could make a case for this if I knew what I was talking about…)

    I’m wondering how the capture and prosecution of WWII war criminals worked in terms of local and international law.

    • I think the war crimes trials were justified because the Allied Forces took over the governments of Germany and Japan for a time after the war. But I should look at the history.

      Unless the accused was in the military as well, I don’t think a ship’s captain would have the authority to convene a military trial. The captain might be able to hold someone, but there would have to be more evidence than the word of the person claiming the other one is a criminal.

      The whole think could be simplified by having FTL communications even if travel is NAFAL, but that’s probably hand-waving science.

  6. I suspect there will be a time period, possibly of several hundred years, where a form of vigilante justice will be served by very specific groups. We don’t see a lot of it in the US, but occasionally you’ll hear about a father or brother who kills a daughter/sister because of the appearance of dishonoring the family. There are also cases of “You kill my brother, I kill your son,” etc.. Many different cultures currently use this form of justice.

    We sometimes forget that the Klingons were the dark side of human history in the Star Trek universe–what happens when a group that has not evolved beyond tribal politics has advanced weapons and eventually spaceflight. Even in Miller & Lee’s Liaden universe, different groups have vastly different solutions for offenses. And though the Liadens themselves have intricate law, they also have Balance–where revenge is carefully plotted and weighed to the last iota of offense.

    I created a bank in my SF universe that had to deal with professions that involved multi-century lives, and currencies from countries/planets that were looked upon as promissory notes only. I suspect that the law–international/interstellar law–will be behind the curve on situations, and planets will have to lead. Bounty hunters will have work. And the farther out you live from the “civilized center”: the more likely you are to be prepared to take care of problems yourself. Even big problems.

  7. One of the challenges of justice at interstellar distances is the destruction of a defendant’s life. (Can certainly happen here and now, if someone charged with a crime gets put in jail till the trial, which might not happen for months or years.)

    If you arrest somebody and send them somewhere five light-years away for trial, the suspect might not age much (because of relativistic effect in NAFAL travel), but back at home the suspect’s family will age and die before the suspect can be tried and, if found innocent, sent back home.

    But, Nancy, your ideas about AI judges sparked the possibility of using uploaded personalities as the witnesses and defendant. But then what do you do with the cloned electronic personalities when the trial is over? Turn them off? What if the defendant is innocent? What if the defendant is guilty? What if the real-life defendant (whose electronic personality got tried) dies in the interim? Do you punish the electronic personality?

    I have many questions but not many answers.


    • Me, too. This is a difficult question and so far all the answers I can think of bother me for one reason or another. If we get to the point where uploaded personalities are realistic and could reasonably represent real people, we enter an era where we can’t just turn them off when they’ve finished the project for which they’re uploaded. Now we’re to the issue of defining life.

      We’re just touching on the criminal law aspect of this, but there are civil law questions as well. What if the computer system on that NAFAL speed ship develops a major problem with life support halfway there, resulting in some deaths, a lot of major injuries, and significant property destruction. It makes it into port, and people want to sue the manufacturer, claiming it was a defective product. But it’s been 100 years on the planet of origin and the company went out of business long ago due to suits over its defective products at the time. How do we recompense people for their real injuries?

      I continue to think it’s important for SF writers to struggle with solutions instead of just relying on easy answers like vigilante justice. While it may be a long time before we face some of these questions, and while the questions we eventually have to address may be quite different, we need to play with them now so that we have some answers to deal with change.