Virtual Mobs on Almost Human

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January 9, 2014

Almost Human continues to be one of my favorite new shows. The episode Simon Says touched on issues of car jacking, duress, bank robbery of bitcoin, online dating, computer and cyber forensics, plus some interesting legal twists for anyone who thinks about eDiscovery.

The plot of Simon Says involved a villain who targeted those who had wronged him by placing a bomb in a collar device on them. The victims had to perform specific tasks or else the bomb would detonate.

The villain broadcast the suffering of those with the bomb collars on the “dark net.” The torture of a ticking bomb was streamed to a chat room where viewers could viciously comment on the victim’s plight.

A District Attorney would not have a shortage of video and computer evidence to convict the villain of first degree murder for first victim, a banker. Cal Pen Code § 189 states:

All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

Cal Pen Code § 189.

The first victim was sprayed with a chemical to be knocked out, followed by a bomb collar being placed around his neck. A bomb collar is without question a destructive device. Moreover, the villain was “lying in wait” for the victim in order to spray him with the knock-out chemical. A DA could unquestioningly prove this was a premeditated killing with a bomb.

The next two victims were not killed, thus giving two additional charges of attempted murder that could be proven beyond a reasonable doubt.

Now for the interesting question: What about the 3000+ viewers on the “dark net”?

The comments ranged from “Is this real?” to encouraging the villain to detonate the bomb.

If a DA wanted to send a powerful message that online mobs will not be tolerated, the state could charge everyone in the chat room as inciting a riot under California Penal Code § 404. The code states:

Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.

Cal Pen Code § 404(a).

The identities of the viewers could be determined from IP addresses. Charges could be filled on the basis that the chat room enabled several thousand people to act together to encourage the villain to unlawfully kill others with the explosive devices. The immediate execution of power to detonate the bomb was solely in the hands of the villain by remote, but so was the encouragement to kill. The chat and immediate actions of the villain should be enough to show “two or more persons acting together.” While it is untested to have a virtual riot, a DA would test the code on the simple truth that 3,000 people encouraging the murder of another human being cannot be tolerated.

Thank You for Voting “Geek” in the ABA Journal Blawg 100

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Josh Gilliland

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January 3, 2014

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Jessica and I are deeply honored for everyone who voted for us in the “For Fun” category of the ABA Journal Blawg 100. Thank you. It is great to have won the most votes in our category in our first year on the Blawg 100.

Once again, thank you for your vote and reading our blog.

2013: A Year of Bow Ties and Starships

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Josh Gilliland

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December 31, 2013

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As the sun sets on 2013, Jessica and I reflect on the top “geek” moments of the passed year. There are bow ties, super heroes, Time Lords, Starships and of course, lawyers.

As 2014 dawns, we wish everyone very successful New Year.

Confessing at the Church of the Mainframe

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Josh Gilliland

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December 31, 2013

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The Time of the Doctor raised a very interesting legal and religious issue: The Silence hear confessions at Mother Superious Tasha Lem’s Church of the Mainframe.

The legal issue: Can the clergy privilege work with a confessor who causes you to forget what you confessed?

Silent Confession

Clara was told by a Silence to “confess” onboard the Church of the Mainframe. A confession in the religious sense is acknowledging past wrongs. It often requires seeking forgiveness. Conversely, a confession in the legal sense is “…an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it.” Black’s Law Dictionary, 9th Edition, citing 3 John H. Wigmore,Evidence in Trials at Common Law § 821, at 308 (James H. Chadbourn ed., 4th rev. ed. 1970).

Confessing sins to a minister is protected under the law. For example, under California Evidence Code § 917, such clergy-penitent communications are “presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”

The Doctor referred to The Silence on the Church of the Mainframe as Confessional Priests. Despite being the most disturbing looking priests ever, the Silence would qualify as a “member of the clergy” under California Evidence code § 1030. Granted, the faith of the Church of the Mainframe was dedicated to the Doctor’s silence from speaking his name to answer the first question, the one hiding in plain sight.

A “Penitent” is a person who made penitential communication to a member of the clergy. Cal Evid Code § 1031. A “penitential communication” is a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret. Cal Evid Code § 1032.

Both the Penitent and the Member of the Clergy have a privilege to refuse to disclose penitential communications. Cal Evid Code §§ 1033 and 1034. A Penitent has the additional right to prevent another from disclosing a penitential communication. Cal Evid Code § 1033.

What Do You Have to Confess?

The Silence had only one thing to say to Clara: Confess. Human ministers generally have a less threatening confession-side manner.

A confession to the Silence likely would be protected, if the following conditions are met: 1) The Silence are legally viewed as members of the clergy; 2) the statement is made in confidence without any third parties; 3) the statement is intended to be in confidence; 4) the Church of the Mainframe has authorized the Silence to hear communications and has imposed a duty of secrecy for such communications. Doe 2 v. Superior Court, 132 Cal. App. 4th 1504, 1518 (Cal. App. 2d Dist. 2005).

Provided all of the conditions are met, communications made to the Silence would be protected by a court. The last element of imposing a duty of secrecy is self-evidence, because the very nature of the Silence is to hide their existence from humans. If you can only remember someone while looking at them, that is the most extreme way to maintain confidential communications.

Silence Will Fall

The Silence who are Confessional Priests would be bound by law not to discuss confessions made to them. However, they have a powerful tool, because if they did disclose a penitential communication, the third party would have no memory of it. The only exception to the memory loss would be other members of The Silence.

A Penitent in the Church of the Mainframe would have no memory of their confession. This would be problematic from a religious and legal point of view. Generally speaking, asking for forgiveness requires accepting responsibility for one’s sins. If you have no memory of doing so, it is difficult to seek absolution. The only way around this would be the Silence giving a hypnotic suggestion like, “You should kill all of us on sight,” that embeds absolution within the Penitent’s subconscious (Note, the hypnotic suggestion should not be from Day of the Moon).

Religious scholars can offer greater analysis on the subject, which could be very interesting discussion in a Confirmation class.

I Will Remember Every Line

A Penitent would have a difficult time exercising their right to protect any penitential communication if they cannot even remember the communications. Worse yet, they might disclose their own communication to a third party, not knowing they even made the communication to a Confessional Priest, thus waiving their own privilege. As such, the Church of the Mainframe should reconsider the practice of the Silence hearing confessions.

A Bow Tie Requiem for the 11th Doctor

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Josh Gilliland

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December 28, 2013

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Matt Smith was the first Doctor since Jon Pertwee in 1974 to wear a bow tie on Doctor Who. One only needs to look on social media to see the number of people wearing bow ties in the last three years. Matt Smith’s popularity as the 11th Doctor was undoubtedly part of this bow tie Renaissance.

Judge Matthew Sciarrino and I sat down to review The Time of the Doctor. We discussed Matt Smith’s tenure as the 11th Doctor, hopes for Peter Capaldi and the future of bow ties.

I am confident Mother Superious Tasha Lem is River Song. Lem screamed River from the following facts:

The [well armed] Church of the Mainframe was probably the Library of River’s future;

Lem’s constant sexual innuendos with the Doctor;

The fact the Doctor kissed Lem;

Lem was determined to protect the Doctor from being attacked by every enemy he ever had;

Lem knew how to fly the TARDIS;

“LEM” was the name of the Lunar Lander in the Apollo program, which was heavily tied to the plots of The Impossible Astronaut, The Day of the Moon and The Wedding of Rivier Song;

Lem narrated the story; and

The big giveaway: the Doctor told Lem she had been fighting the psychopath within herself her entire life.

All of these facts point to Tasha Lem being River Song.

Regardless, Matt Smith, thank you for your time on Doctor Who. Job well done.

Is Frosty the Snowman Protected by the Endangered Species Act?

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Josh Gilliland

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December 19, 2013

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Frosty the Snowman, with his corn cob pipe, button nose and two eyes made of coal, could dance around just like you and me. Well, not me. I’m a lawyer. I do not dance.

Could Frosty be protected by the Endangered Species Act? After all, he is made out of snow and will melt when the temperature increases.

The Endangered Species Act was passed to protect species that are “endangered” or “threatened.”

A species is “endangered” if it is “in danger of extinction throughout all or a significant portion of its range.” 16 U.S. CODE § 1532(6).

A species is “threatened” if it is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1202 (D.C. Cir. 2013).

As a preliminary matter, the Endangered Species Act likely does not protect Frosty at all, because he is made out of snow. The law defines a “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” 16 U.S. CODE § 1532(16).

Frosty was made out of snow by children and came to life once an old silk hat was placed upon his head. Snow is not wildlife, plants, vertebrate fish or interbreeding wildlife. At best, Frosty is an atmospheric event that can sing and dance. Such an event would trigger the need for an old priest and a young priest or angry townsfolk with torches.

Assuming the law did contemplate snow that had been animated with life, Frosty might be considered “endangered” because of “natural or manmade factors affecting its continued existence.” 16 USCS § 1533(a)(1)(E). Namely, it will get hot and Frosty will melt.

It is extremely unlikely the Endangered Species Act would apply to Frosty, because he is made out of snow, thus neither a plant or animal. However, if the law did protect him, there is an issue of what the Secretary of the Interior would do next. Shipping Frosty to Alaska would certainly be an option.