August 2, 2002

READER THOMAS ASCH WRITES:

I saw this item at instapundit:

“LAS VEGAS (AP) – A presidential advisor encouraged the nation’s top computer security professionals and hackers Wednesday to try to break computer programs, but said they might need protection from the legal wrath of software makers.”

and wondered if the a little-used congressional power in Article I, Section 8 might be applicable, specifically the power to “grant Letters of Marque and Reprisal.” It seems to me that this suggestion seeks to create “privateers” on the high seas of the Internet. Since the possession of such letters changes acts that would otherwise be piracy into legal acts, it would seem that on the Internet it would change acts that would violate Internet and communications laws into legal acts. While there is no great body of constitutional law on this clause (if any), arguably the Congress has the power to grant private individuals war-making powers in cyberspace. Is this reasoning a violation of original intent because the Internet did not exist in the time of the framers or are the words “Letters of Marque and Reprisal” broad enough to encompass this power?A related question is whether there are any international treaties or agreements that outlaw privateering, and if so, is the specific language such that it would prohibit use of Letters of Marque on the Internet?

Well, I don’t think he had privateering in mind — more like checking doors to make sure they’re locked. But we’ve already seen some private activity against al-Qaeda websites, and I think we could have a lot more with a bit of encouragement. That would be compu-privateering for real — especially if it went further and involved assaults on financial infrastructure, etc. I seem to recall that the US isn’t a party to the anti-privateering treaty anyway. Otherwise I’d have to give this some thought. The biggest issue is immunizing U.S. white-hat hackers from criminal liability in other nations, or under state law. The latter is pretty easy; the former probably would be too. Interesting idea.

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