Didn’t Mr. Hyde Need a Trial Before Being Lobotomized and Made a Veterinarian?

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May 20, 2015

The Agents of SHIELD Season 2 finale contained a happy ending for Calvin “Mr. Hyde” Zabo. After killing his wife who had planned to commit genocide on humanity with Terrigen Crystals as a eugenic weapon, Mr. Hyde had a unique sentence: Memory erased and his own veterinarian clinic to help pets that need love and healing. After all, the world needs professionals who help animals.

Was that legal?

Calvin Zabo had committed multiple counts of murder, illegal human experimentation, and criminal conspiracy in several states. Moreover, the People’s Republic of China would have an interest in prosecuting him for murdering a village in order to “feed” Jiaying their life energies.

Director Coulson unilaterally decided that Zabo would be pardoned for his crimes, but Zabo’s mind would be erased. This decision is problematic, because Zabo had a 7^th Amendment right to a trial for his crimes and a 6^th Amendment right to counsel. Both seemed to have been ignored. Furthermore, conducting a medical experiment without a prisoner’s consent to erase his memory would definitely violate the 8^th Amendment prohibition again cruel and unusual punishment. To be blunt, Court’s just don’t let people get lobotomized.

People who are involuntarily committed have the right to refuse psychosurgery. (See, Cal Wel & Inst Code § 4503, as one state example). This right can only overwritten on a showing of good cause, which includes treating physicians documenting the treatment needed, a review of the patient’s treatment record by two treating physicians who both agree with the recommended treatment, and written consent by the patient or the person’s guardian. Cal Wel & Inst Code § 5326.7.

This process does not appear to have been followed. In theory, Dr. Andrew Garner’s (Agent May’s ex-husband) could have been the treating physician to make the treatment recommendation. No other psychologists are known, but would others have agreed with erasing Calvin’s memories? Skye/Daisy could have provided written consent, but this still would be a grossly invasive procedure to erase someone’s life.

Director Coulson apparently acted as the prosecutor, judge, and jury in determining Zabo’s sentence to a happy life with no memory of crimes. Director Coulson effectively pardoned Zabo for his crimes and then expunged his criminal record. There is just no way Coulson’s actions were legal, but Zabo did help save humanity. That would be worth a limited pardon from a President and multiple governors. Plus the world needs good veterinarians. Just think of all the puppies Cal can help, opposed to being in prison or a mental hospital for the rest of his life.

Blizzard Bans Bots: 100,000 Accounts Suspended for Violating Terms of Use in WoW

By

Roger Quiles

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May 18, 2015

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Blizzard Entertainment, creator of World of Warcraft (“WoW”), banned over 100,000 accounts for violations of the game’s Terms of Use. These accounts were engaged in “botting,” which is the practice of using third party programs to automate gameplay. Although botting had always been present in WoW, and similar such games, it had become a substantial issue of late. Bots were reportedly being used for repetitive, mundane tasks and also to farm player vs. player “honor points” in order to purchase better equipment. The botting problem was so prevalent in farming “honor points” that player vs. player arenas were reportedly filled with these bots, making the game very frustrating for actual players attempting to gain “honor points” legitimately. Fortunately, Blizzard has confronted botting before, and has established protective measures in its Terms of Use agreement.

WoW’s Terms of Use specifically states “You agree that you will not, under any circumstances: (A) use cheats, automation software (bots), hacks, mods or any other unauthorized third-party software designed to modify the World of Warcraft experience.” Additionally, Blizzard expressly reserved the right to ban accounts for any reason. However, the Terms of Use states that “most account suspensions, terminations and/or deletions are the result of violations of the Terms of Use.” Such clear language in the Terms of Use easily grants Blizzard the authority to take action as necessary when players are found to be botting. Although it is safe to assume that most gamers do not read the Terms of Use for the games they play, it is well known within the WoW community, and gaming community at large, that the use of bots could result in an account ban.

Blizzard has long opposed botting, and has even taken legal action against companies that make botting software used in its games. In 2006, MDY Industries LLC, the creator of a WoW botting software, sought a declaratory judgment against Blizzard that it did not infringe on Blizzard’s copyrights (2008 U.S. Dist. Lexis 53988). However, Blizzard asserted counterclaims under the Digital Millenium Copyright Act and tortious interference with contract. Although Blizzard’s counterclaims were successful at the district court level, the Ninth Circuit reversed. Ultimately, after five years of litigation, the case was settled in favor of Blizzard.

Blizzard recently attempted to sue the creator of Honorbuddy, a popular third party botting software, in Germany. However, Blizzard was unsuccessful in this case, and withdrew its application for an injunction earlier this month. Honorbuddy had prided itself on being undetectable by Blizzard. However, it is thought that the very recent failure in Court against Honorbuddy was the motivation behind finding a method of detecting the botting software, and the subsequent, massive ban of many Honorbuddy users. With the ban of a substantial number of its users and narrowly escaping litigation, the creator of Honorbuddy has effectively shut down the application for the time being.

Apparently, Blizzard’s mighty ban hammer may be enough to stem the tide of botting villainy. Although 100,000 accounts is a substantial number to ban by any means, WoW maintains a subscriber base of 7.1 million people. Banned accounts will be able to access the WoW servers in six months, so the countless hours that players have put in to creating their characters will not all be for naught. Hopefully these players have learned that violations of WoW’s Terms of Use will result in punishment, and not seek to gain a competitive advantage through any illicit means.

Roger Quiles is an attorney from New York City with a practice focusing in business, entertainment, and eSports law. A die-hard gamer since Super Mario Bros., Roger now represents professional gamers, tournament producers, and the businesses that serve them. Up, up, down, down, left, right, left right, B, A, Start.

The Black Widow Should Sue!

By

Jessica_alegalgeek

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May 13, 2015

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Can the Black Widow sue Disney for creating a hostile work environment? And no – I’m not asking because of the movie itself (or the offensive remarks made her co-stars), but the apparently deliberate decision to exclude the Black Widow from the merchandising.

It’s an issue that’s all over Twitter right now (check out #wheresnatasha and #wheresblackwidow): Black Widow is conspicuously missing from the Avengers toys, tee shirts, and other goodies. If you search for Avengers on Target.com, for example, you wouldn’t even know that Black Widow was in the movie (which has caused me to rethink my devotion to all things Target). The Hulk himself even spoke up about this problem on Twitter:

And she isn’t being excluded because she’s not one of the leads. Both the plot and the promotions show that she is on equal footing with the guys (although, as we learned in the Sony hack, her salary may be lower because of her sex). So any argument that the Black Widow isn’t central to the plot of the Avengers movies is both incorrect and just plain offensive. And yet, somehow, she’s excluded from the toy team. And what’s the only difference? She’s not a guy.

And now we learn that it’s not just exclusion but actual outright replacement. The powers that be at Disney and the toy makers have decided to replace Black Widow on her own helicopter with two of the male characters instead. This goes beyond offensive to outrageous. To actually have your history wiped out and replaced is something that has happened to women for centuries but I thought wouldn’t happen in 2015.

But this is why we have labor laws: to prevent these kinds of problems in the real world, because as the outrage on Twitter shows, exclusion hurts. So women (and other protected classes) can bring hostile work environment claims if they haven been excluded, ostracized, or isolated based on their sex (or other protected status, such as race or age). See, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 818 (6th Cir. 2013) (recognizing that ignoring and ostracizing a coworker, if based on “gender-based animus,” can give rise to a hostile work environment claim).

Why is it happening right now? The conventional wisdom is that Disney doesn’t think they need to sell to girls because girls buy their princess stuff. And, presumably, because they think girls aren’t into “geek” culture. That second point is demonstrably wrong. And the first point is short-sighted. My daughter, for example, loved Disney princesses when she was younger but lost complete interest in them by the age of five. Now, at eight, she loves the Black Widow and was so happy to see the Scarlet Witch (spoiler!) join the Avengers. She even said, right in the middle of the movie, “now there are two Avengers like me!” As soon as the movie was over she asked for Black Widow and Scarlet Witch action figures to fight with and would gladly wear a tee shirt with either woman on it. My eleven year old son, on the other hand, enjoyed the movie but had no interest in getting any Avengers-branded merchandise.

So Disney’s sexism is not only hurting women of all ages (especially little girls like my daughter), but they’re also losing out on potential customers. The lack of women in action roles on screen, and in toys offscreen, is something I’ve noticed for many years now. Unfortunately, my daughter has now noticed it as well. Fortunately, others have seen this problem too and are speaking up. Hopefully, Disney and Marvel will catch on soon and stop with this (mindless? blatent?) sexism. Otherwise, I’d love to give the Black Widow her day in court against her employer!

Can Ultron be Prosecuted in Court?

By

Josh Gilliland

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May 11, 2015

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Could the International Criminal Court prosecute Ultron for Crimes Against Humanity? Could Ultron be tried in any Court?

Tony Stark and Bruce Banner created Ultron in Avengers Age of Ultron. Ultron attempted to “kill” the computer program Jarvis and then the Avengers shortly after being activated.

Ultron’s following actions range from ripping Ulysses Klaw’s arm off to trying to crack every nuclear code on the planet to attempted genocide all human life.

Could a robot be prosecuted for this long list of crimes?

Ultron is “Artificial Intelligence” gone on a killing spree. Case law examples of AI include “expert system,” which are “are a class of computer programs that were first developed in the 1960’s. They seek to emulate the decision-making of human experts in a field of expertise (e.g. chemistry, medicine, geology). An expert system stores knowledge obtained from human experts in a ‘knowledge base.’” Vehicle Intelligence & Safety, LLC v. Mercedes-Benz USA, LLC, 2014 U.S. Dist. LEXIS 130809, 5-7 (N.D. Ill. Sept. 18, 2014). A “decision module” inference engine is “programmed to selectively apply expert rules stored in the knowledge base in order to resolve problems.” Id.

Ultron is significantly a higher level of “Artificial Intelligence” than we have in the real world. Ultron invaded the Internet and downloaded himself into multiple bodies, which he could transfer his programming between at will.

Ultron’s plan included launching Sokovia into orbit and dropping the city back on Earth, effectively creating an asteroid strike similar to the one that wiped out the dinosaurs. This plan targeted the citizens of Sokovia to use their city as a weapon, which obviously would displace the citizens of the ill-fated city state.

The Geneva Convention prohibits signing parties to treat non-combatants to hostilities humanely. 1949 U.S.T. LEXIS 484, 3-4. Moreover, acts such as violence against people, murder of any kind, mutilation, cruel treatment, and torture are also prohibited. Id.

There is a significant problem with attempting to prosecute Ultron under the war crimes statute: Ultron is a computer program and does not belong to a country that signed the treaty.

Ultron did purposefully kill or attempt to kill numerous human beings. Bringing traditional murder charges against Ultron are problematic, because a PERSON is guilty of murder when someone intentionally causes the death of another. NY CLS Penal § 125.27. Or as defined at common law, murder is defined as the “killing of a human being with malice aforethought.” See, Black’s Law Dictionary App, 9^th Edition.

Whether or not Ultron is a “person” defines whether or not he can be charged with murder (or attempted murder, or attempted genocide, or mutilation, or torture, or kidnapping).

An area of law that gives guidance on “personhood” is whether or not computer-generated information is “hearsay.” Here is what one Court said about Artificial Intelligence and hearsay:

The initial question is whether information observed on a computer screen, generated not by a human source but setting out the results of a computer program in analyzing data, is hearsay. Rule 801 defines a “statement” as an oral or written verbal expression, or as the nonverbal conduct of a person if intended by the person as a substitute for verbal expression. TEX. R. EVID. 801(a). Arguably, this should constitute such a statement. When the rules were written, computers were not capable of performing such analysis and at most would have provided raw data which would have to be analyzed by a human. Now, the computer program performs the analysis and a human only looks to see what result the program has reached. If the result shown is not the one desired, the human does not perform an independent analysis, but looks for different ways to apply the program to the problem. Under this scenario, there is arguably a statement being made-just not by a human-but by an artificial intelligence.

Without going into the details of this type of analysis, however, as pointed out by the State, several courts of appeals have held that computer-generated information, whether on a display or paper, is simply not hearsay because it falls outside the strict language of the rule. This position is defensible and is apparently the sole position taken in Texas to date for materials not input into a computer and simply printed out, but that result from analysis done by the computer. The statement by Marshall was not hearsay.

Taylor v. State (Tex.Ct.App. 2002) 93 S.W.3d 487, 507-508.

Ultron is way beyond a computer screen displaying information. There is an argument that Ultron had a body, had emotional reactions, and as such he statements were more in line with being human opposed to merely Artificial Intelligence. However, there is the basic fact that Ultron is a robot and not a human being.

Could a Court find that Ultron’s “statements” were by a “person”? Maybe. Could a Court also find that Ultron was a “person” under the law? Not by a strict reading of the law.

If Ultron was not a “person,” then there was no issue with destroying each Ultron drone. As Ultron was not a “person,” there was no duty to attempt arrest of a killer robot.

Now, whether or not the Vision and Scarlet Witch getting married is an advanced retelling of the Pygmalion myth is a tale for another time.

Remember that Time the Inhumans Started a War Because SHIELD Acted like a Nation-State?

By

Josh Gilliland

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May 7, 2015

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Agents of SHIELD has ventured into a new legal realm: Foreign Policy. As one could expect, this results in a war.

There are MANY things wrong with the actions taken in “Scars,” both legally and politically. The outcome highlights that foreign policy is best left to the Secretary of State, opposed to spies with aircraft carriers.

SHIELD Acted as a Nation-State

Phil Coulson’s SHIELD and Robert Gonzales’ SHIELD merged into one organization. Coulson would act as the Director and Gonzales’ team as an Executive Board.

Problem: they are accountable to no one. There is a rogue spy agency with a nuclear powered Nimitz aircraft carrier and an underground base that is 1) Not taking orders from the President; 2) Totally ignores the military chain of command; and 3) Has zero Congressional oversight.

This is not acceptable legally. There cannot be a faction of an American military/espionage agency with nuclear weapons roaming the seas. The United States would be on a heighten anti-HYDRA policy after Captain America The Winter Soldier and would have no tolerance of rogue spies who could start a war.

SHIELD acted as if they were a separate nation-state in setting up negotiations with the Inhumans, thus establishing their own foreign policy. There is a substantial problem with this, because the Logan Act prohibits US citizens from directly or indirectly commencing correspondence with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States…” 18 USCS § 953.

Worse yet, if Afterlife is in the People’s Republic of China, the PRC will be less than thrilled with 1) super-powered individuals acting like they are a separate country; and 2) Americans entering China to negotiate with the separatists (and in some cases, foreigners illegally living in China without visas). This would be like the United States deciding to enact a trade agreement with Tibet.

The US State Department’s “mission is to shape and sustain a peaceful, prosperous, just, and democratic world and foster conditions for stability and progress for the benefit of the American people and people everywhere.”

SHIELD sending four Quintjets to Afterlife was a strange mix of Commodore Matthew Perry’s gunboat diplomacy in “opening” trade with Japan, seasoned with the San Pebbles meets The Bedford Incident. This gunboat diplomacy without Presidential orders or Congressional approval runs totally against the basic tenants of foreign policy to promote peace, prosperity, and stability in a democratic world.

What could possibly go wrong?

How Not to Start a War

It does not take a William Seward, John Quincy Adams, or Henry Kissinger (or Hank McCoy for that matter) to identify the mistakes SHIELD made in their negotiations with the Inhumans. Here is an outline for how SHIELD could have avoided a war:

Send a letter requesting a neutral meeting place between leaders (Rajkovic, Yalta, Vienna, etc);
Letter should outline SHIELD’s proposal focused on the Inhuman’s concerns, opposed to outright Indexing all of them;
1. Create Memorandum of Agreement to Protect Afterlife from being discovered;
2. Ask Inhumans to document all of their people, to be maintained solely by them (hereinafter Inhuman Census);
3. Inhuman Census to be maintained on paper and never created digitally to protect against hacking and cybersecurity threats;
4. Inhumans will communicate to SHIELD if one of their members begins violating law;
5. Inhumans would provide relevant information in order for SHIELD to capture rouge Inhumans;
6. SHIELD to provide counter-espionage response to those seeking to locate the Inhumans;
7. SHIELD to provide military response if Inhumans threatened by HYDRA, AIM, or other threats

There would be many other issues, but here is the thrust of the Inhuman’s fears: Jiaying was the victim of HYDRA (Nazi) experiments during World War 2. She is fully aware of the dangers of “indexing” people based on race. Gonzales tossing out “we want to Index all of you” had to sound like a nightmare.

How to Start a War

Jiaying murdered Robert Gonzales with Terrigen Crystal Mist. This singular act of murder would promise an ICBM to be launched at Afterlife with Jiaying’s name on it.

Why respond to murder with nuclear weapons? Because Jiaying proved Terrigen Crystals could be used to commit genocide of the human race by killing Robert Gonzales. The Inhumans demonstrated how to weaponize Terrigen Crystals that would both kill all humans within their range and transform anyone with Inhuman DNA into “monsters.”

Jiaying proved all the Inhumans are exactly that: inhuman. The rest of humanity would not respond well to the possibility of either being 1) killed, or 2) transformed into something Inhuman.

The threat of genocide does not bring out the best in people. The only response to a hegemonic threat is to destroy those threatening to wipe out your existence. In effect, Jiaying created the worst possible situation that would lead to her people being blown off the face of the Earth.

Now, would a President bother seeking a Declaration of War from Congress? Maybe if the Inhumans were actually their own country. Any Congressional authorization of force would likely be a “Force Bill,” similar to those issued to fight the Barbary Pirates or the Klan. China would either need to agree to the attack or the US would need to beg that China not demand immediate repayment of US debt. However, given the threat of extinction, a diplomatic solution likely could be reached if the United States acted unilaterally to prevent seven billion people from being exterminated.

An “Inhuman War” would make life at the United Nations complex in explaining why a small village in China was vaporized. The US Ambassador to the UN would likely employ a mix of Adlai Stevenson and James Baker in handling the response. The Ambassador would channel Stevenson with a Cuban Missile Crisis style presentation on how Terrigen Crystal Mist is a genocidal weapon AND Baker in rallying an international response similar to the Persian Gulf War.

None of this would end well. Inhumans would be hunted down because Jiaying decided to declare war on the human race after Robert Gonzales insulted her by comparing their HYDRA scars.

Fear is the Real Enemy

Wars start out of fear. Both SHIELD and the Inhumans had significant fear about each other. SHIELD absolutely should NOT have been attempting to craft their own foreign policy without the US Government. However, Jiaying’s murder of Gonzales would ignite a fuse that would end with Afterlife being a crater.

None of this is what SHIELD is supposed to be. SHIELD is supposed to be the good guys who save the day, not start a war through gunboat diplomacy.

Let’s get back to basics: Have a story arc about stopping The Leader, or Kree spies on Earth, or even AIM. Let’s have the heroes follow the Constitution and in the words of Captain America, “be what SHIELD is supposed to be.”

What is Iron Man and Hulk’s Liability for Creating a Murder-bot?

By

Josh Gilliland

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May 4, 2015

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Ultron has no strings on him, but Tony Stark and Bruce Banner certainly are tangled up in liability for building genocidal Artificial Intelligence.

Stark and Banner had the goal of putting a suit of armor around the world. However, the end result did not go according to plan. What would be their liability?

Ultron arguably is a product based on unknown alien technology (an Infinity Stone). The purpose of Ultron was to protect humanity. One theory for victims of Ultron to sue Stark Industries, the Avengers, plus Tony Stark and Bruce Banner individually, would be on products liability.

In New York state, a manufacturer is strictly liable for injuries for a design defect where:

(1) That at the time of the occurrence the product is being used…for the purpose and in the manner normally intended;

(2) That if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger; and

(3) That by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injury or damages.”

Voss v. Black & Decker Mfg. Co. (1983) 59 N.Y.2d 102, 106-107.

Plaintiffs can also argue that a product is defective because of a mistake in the manufacturing process, improper design, or because of inadequate warning. Id.

Traditional products liability analysis goes out the window because Ultron is not like a saw that cut off someone’s arm, but an intelligent robot that decided to destroy humanity. Without engaging in a discussion of whether Ultron qualifies as a human being, his actions are self-directed based on independent thought. As such, no one is “using” Ultron like a product. Would that independent thought cut the strings of product liability?

One argument would be to sue Stark and Banner for improper design. They used an Infinity Stone they did not fully understand, thus could not design a safe global security product. However, a stronger argument can be made that the use of the Infinity Stone was not of just improper design, but strict liability for engaging in an ulta-hazardous activity.

Tony Stark admitted that he was a “mad scientist” and Banner should embrace it. This statement shows a strong desire to engage in inherently dangerous activity. In New York (and many other states), one who engages in inherently dangerous activities is held liable without fault for injury caused to a neighboring property with or without trespass. Continental Ins. Co. v. Great Lakes Dredge & Dock Co. (App.Div. 1994) 624 N.Y.S.2d 335, 336. The traditional example is using TNT to blow up a tree stump, which then lands on a neighboring house. Furthermore, being a government contractor engaged in public work does not provide it immunity to liability. Id.

A court could easily find that conducting experiments with alien technology that can control human minds to build weaponized Artificial Intelligence would be an ultra-hazardous activity. The fact Ultron goes on a global murder-spree to create an extinction level event only shows how inherently dangerous it was to experiment and create Ultron. As such, the issue is not one of foreseeable harm from negligent conduct, but one of strict liability for Ultron’s destruction in South Korea, Africa, and Sokovia.

Could Scarlet Witch Become a United States Citizen?

By

Josh Gilliland

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May 4, 2015

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Could the Wanda Maximoff, the Scarlet Witch, from Avengers Age of Ultron become a naturalized citizen of the United States?

The Hexing Case History

The Scarlet Witch is from the fictional Eastern European country of Sokovia. Wanda and her brother were orphaned after a missile made by Stark Enterprises killed their family. These events would have taken place long before the first Iron Man film and Stark’s putting a stop to Obadiah Stane’s supplying advanced weapons to terrorists.

Wanda and her brother Pietro Maximoff VOLUNTEERED for Baron Wolfgang von Strucker to experiment on them. Volunteering to become a super-powered weapon of HYDRA does not look good on an application for citizenship. Further lowering her success of becoming a US citizen would be admitting she volunteered for human medical experiments to get revenge on Tony Stark.

Scarlet Witch sided with Ultron out of a desire to harm Tony Stark. However, after finding out Ultron’s plan was to commit genocide on the human race, she turned on Ultron.

Assembling the Avenger’s Application

The Scarlet Witch could apply for a US Green Card based on her employment as an Avenger. Wanda would certainly qualify as an “alien of extraordinary ability” under question 1a of Form I-140.

The Application for Naturalization is Form N-400. Good Moral Character is a requirement to apply for citizenship, as stated in “Who Is Eligible for Naturalization?”. The US Code defines “good moral character” when the Attorney General finds there is not deportable conduct as “conclusive evidence of good moral character.” 8 USCS § 1427(d).

The document specifically states “terrorist acts” or “Any crime against a person with intent to harm” are examples of possible bad moral character. The Application specifically asks applicants if they have at “you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” INS Form N-400.

The Scarlet Witch’s involvement with HYDRA could seriously compromise her ability to become a US citizen. Gaining super powers from terrorists who attempted “purification” of people based on data analytics would be a red flag for an INS Agent. Being a member of a terrorist organization has been enough to prosecute someone for fraudulently applying for citizenship. United States v. Damrah (6th Cir. 2005) 412 F.3d 618, 621.

Ultron is a similar problem. Scarlet Witch might not have known Ultron’s goal was genocide of life on Earth, but she still wanted revenge on Tony Stark. It took the realization that Ultron was trying to destroy humanity for the Twins to switch sides to help the Avengers.

Helping save the world would be a huge mitigating factor for the Scarlet Witch’s application for citizenship. However, an immigration lawyer would have their work cut out for them in representing Wanda Maximoff.