Cruel and Unusual Punishment for Hackers

Cruel and Unusual Punishment for Hackers

By: Dan Jeffers - Search Engine Optimization

The Eighth Amendment of the Constitution prohibits punishment that is excessive, cruel, or unusual. Since these are kind of vague, some case-law refers to “evolving standards of decency.” It appears that some standards are evolving more quickly than others, and “hackers” are somehow seen as less sympathetic than rapists.

What the Amendment Means

The text of the Amendment says:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

There is no specific mention of imprisonment, but that’s likely because imprisonment was not, at that time, considered a punishment by itself. Prison was used to confine people awaiting trial or awaiting some other punishment. The reference to “excessive bail” is close enough, however.

The common-law source of the amendment referred to a person who was faced with a cumulative punishment for many counts of a crime. The accumulation was considered cruel and unusual, though legally sound. Interestingly, we seem to have a much higher tolerance to expanded punishments based on multiple counts.

Still, the “evolving standards” test should allow us to compare disproportionate punishments from one area to another. Granted, this is not currently a legal test, but it is the way the community itself tests standards, and the test seems to be going to the community for an answer.

Punishment for Rape

I pick this example because it’s very much in the headlines right now, and specifically relates to the passion of a community over punishment. In Steubenville, Ohio, two teenaged boys were convicted of raping an unconscious girl. The sentences handed down were for a minimum of one year in one case and two years in the other, with a maximum closer to five years. Both boys will also be registered sex offenders.

CNN, in covering the case, seemed to expressing some sympathy for the defendants, though this apparent sympathy has led to a lot of outrage among bloggers and others.

Punishment for “Hacking”

Meanwhile, in what seems like it must be a parallel universe, people who commit “crimes” that are often loosely (and inaccurately) labeled as “hacking” often face punishments ranging from four to thirty five years for acts that seem pretty trivial by comparison.

Aaron Schwartz, who is generally being canonized following his death by suicide, was being prosecuted for what amounts to multiple violations of a Terms of Service agreement. He faced up to 35 years.

Matthew Keys, a social media editor for Reuters, faces up to 10 years in prison for giving log-in credentials for the L.A. Times website to a “hacker” from Anonymous. The result of the crime was the addition of “'Pressure builds in House to elect CHIPPY 1337” to a news story.

Andrew Auernheimer, who goes by Weev online, was sentenced to over three years for accessing inadvertently public information and distributing it to journalists. Weev is also an online troll and doesn’t do much to garner sympathy, but his actual crime is just harvesting unsecured email addresses.

It is arguable how sympathetic these three very different people might be, and to some extent whether their crimes are actually crimes. But even taken these at their worst, none compares to what the rapists did in Ohio. We need to do a better job of understanding our own evolving standards, and make it clear that these punishments are excessive in a way that violates the Eighth Amendment.