Can Skye Claim the Necessity Defense for Hacking the NSA?

Skye in the Agents of SHIELD episode “The Only Light in the Darkness,” hacked the National Security Agency’s satellite system to see who was responsible for the attack on the Fridge. This was legally problematic, because SHIELD has been branded a terrorist organization. Just as you cannot simply walk into Mordor, you cannot simply hack the NSA’s spy satellites.

Hacking_NSA_8800Federal law specifically prohibits hacking into government agency’s such as the NSA. Her actions would have violated 18 USCS § 1030 subsections (a)(1), prohibiting accessing national defense information; (a)(2)(B), prohibiting accessing information from any department or agency of the United States; (a)(3), prohibiting accessing nonpublic computers used by the government.

There is no question Skye’s hacking of the NSA computers violated 18 USCS § 1030, plus multiple other cyber-crime laws, when she hacked into the NSA’s satellite network.

Skye could argue her hacking was done out of “necessity” to prevent greater harm.  The necessity defense may be asserted “only by a defendant who was confronted with . . . a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.” United States v. Holmes, 311 Fed. Appx. 156, 164 (10th Cir. Kan. 2009). The necessity defense has a three part test:

(1) There is no legal alternative to violating the law;

(2) The harm to be prevented is imminent; and

(3) A direct, causal relationship is reasonably anticipated to exist between defendant’s action and the avoidance of harm.

Holmes, at *164 citing United States v. Benally, 233 F. App’x 864, 868 (10th Cir. 2007).

The necessity defense gets a little complicated for the former SHIELD Agents. While Agent Coulson’s team is still acting as “the shield that protects” society from the criminals who escaped from the Fridge, they are arguably acting as international vigilantes.

Skye (and the the rest of the team) would have to argue hacking into the NSA computers to access the US spy satellite data was done because they 1) had no legal alternative; 2) the harm from all of the escaped prisoners was imminent; and 3) by accessing the data, they could stop further criminal activity.

There would be a difficult argument to make in that the harm was “imminent” given the time that had passed since the breakout. However, a skilled lawyer could argue finding the enhanced criminals from the Frig was “imminent,” in order to locate them before they completely disappeared.

Would the argument work? Maybe. Courts really do not want to approve of after-the-fact-vigilantism, but if significant harm is stopped…

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Josh Gilliland

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, the ABA Web 100 for Best Legal Blog and Podcast categories, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.