From tcmay@got.netWed Sep 6 00:30:39 1995 Date: Tue, 5 Sep 1995 20:49:25 -0700 From: "Timothy C. May" <tcmay@got.net> To: cypherpunks@toad.com Subject: Are booby-trapped computers legal?

(I've changed the name of this thread.) At 2:30 AM 9/6/95, Lucky Green wrote:

...

I am wondering about the legalities of booby trapped computer equipment. Would it be legal if a clear warning to the fact was posted on the hardware?

There are two types of "booby traps" to consider:

* Type 1 Booby Trap: a shotgun is placed inside a home, set to fire if and when a burglar enters. Or an electrified region of a room is set to "get energized" when an intruder enters. These are "surprises" and are canonical booby traps.

These have been found to be illegal in several court cases. (I'm not a lawyer, but I've been reading about them for 20 years. Famous cases where a burglar sued, and won, because he was injured when breaking into a house.)

Katko v. Briney, 183 N.W.2d 657 (Iowa 1971). The defendants owned an old, boarded-up house, located several miles from their home, in which they stored various old bottles, fruit jars and the like, which they considered to be antiques. Several times during the previous several years the windows in the house had been broken and the entire place "messed up." The defendants first posted "no tresspass" signs to keep off intruders, but the break-ins continued. Shortly before the injury to the plaintiff, the defendants placed a "shotgun trap" in one of the bedrooms. The gun was first positioned so as to hit an intruder in the stomach, but Mr. Briney, at his wife's insistance, lowered it to hit at the legs. He said that he set the gun "because I was mad and tired of being tormented," but insisted that "he did not intend to injure anyone." The plaintiff was shot in the legs and permantly injured when he entered the defendant's bedroom shortly after the gun was set. He had been to the place several times before, and had intended upon this occasion to steal some of the defendant's possessions. The plaintiff pleaded guilty to a charge of larceny and paid a fine of $50. He also sued the defendant for personal injuries and was awarded $20,000 in actual damages and $10,000 in punitive damages. [Jury instruction #6 was one of the items at issue in the appeal to the Iowa Supreme court] Instruction 6 stated: "An owner of a premises is prohibited from willfully or intentionally injuring a tresspasser by means of force that either takes life or inflicts great bodily injury and therefore a person owning a premise is prohibited from setting out "spring guns" and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming tresspassers. The fact that the tresspasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a "spring gun" or a like dangerous device is justified would be when the tresspasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act." [Upheld on appeal] Note that the case caused a literal riot in Iowa. Checks poured in to the Briney's (the boobytrappers) from everywhere (by one account, even from prisons). They raised over $10,000 this way. Briney was heard to comment: "They used booby traps in Viet Nam didn't they?" Asked if he would do it again: "There's one thing I'd do different, though, I'd have aimed that gun a few feet higher." Reference is given to a front page story in the Chicago Trib. of April 25, 1975. See also, Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237 (1951). [Plaintiff could collect damages when he was injured by a booby trap consisting of two sticks of dynamite even though he was feloniously breaking into defendant's warehouse with intent to steal.] Some states allow a criminal liability, even of homocide, to landowners installing booby traps. The basic rule today in most states resembles the restatement position: Section 85. Use of Mechanical Device Threatening Death or Serious Bodily Injury. The actor is so far privileged to use such a device intended or likely to cause serious bodily harm or death for the purpose of protecting his land or chattels from intrusion that he is not liable for the serious bodily harm or death thereby caused to an intruder whose intrusion is, in fact, such that the actor, were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm. Some states have deviated from Section 85, however, California included. People v. Caballos, 12 Cal. 470, 526 P.2d 241, 116 Cal. Rptr. 233 (1974). "It seems clear that the use of such [mechanical] devices should not be encouraged. Moreover, whatever may be thought in torts, the [Restatement] rule setting forth an exception to liability for death or injuries inflicted by such devices 'is inappropriate in penal law for it is obvious that it does not prescribe a workable standard of conduct; liability depend on fortuitous results.' (i.e. what the trespasser was doing in there in the first place) What constitutes reasonable force is generally a question for the jury. Some exceptions exist. When the invasion is peaceful, and in the presence of the possessor, the use of any force at all will be unreasonable unless a request has been made to depart. Chapell v. Schmidt, 38 P. 892 (1894) (Defendant caned elderly person who was picking flowers); A request need not be made however when conduct of the intruder would indicate to a reasonable person that it would be useless or that it could not safely be made in time. See Higgins v. Minagham, 47 N.W. 941 (1891).

* Type 2 Booby Trap: electrified perimeter fences. So long as these are adequately marked ("If you touch this fence, you will probably die"), and are not public nuisances where children and pets will inadvertently validate Darwin's theory, these are--I think--legal. There may be license fees required, to build an electrified fence, but I think it is possible to build a lethal voltage electrified fence on one's property.

While clear notice of the danger of deadly force is a partial defense to criminal and civil liability in some states, (Starkey v. Dameron, 21 P.2s 1112 (1933) [Colorado] State v. Marfaudille, 92 P. 939 (1907) [Washington State]) and implicit or constructive notice in others (Quigley v. Clough, 53 N.E. 884 (1899) (Presence of barbed wire may constitute notice of deadly or injurious force)), some prohibit it outright, notice or not (State v. Plumlee, 149 So. 425 (1933) [La.] An obnoxiously exhaustive treatement of the entire subject can be found in Bohlen and Burns, The privilege to Protect Property by Dangerous Barriers and Mechanical Devices, 35 Yale L.J. 535 (1926); or for a more interesting treatement (IMHO) Hart, Injuries to Trespassers, 47 Law Q.Rev. 92 (1931).

Thus, I suspect it is fully legal to build an electrified fence around one's PC, providing suitable warnings are included.

Varies by state. If your intent is to prevent ACCESS to the computer, as opposed to THEFT, I cannot see how electrocution could be considered "reasonable force" to prevent it, given the host of other methods to prevent access without harm to the trespasser.

I would not call the second type a real booby trap, though some courts might, depending. A properly labelled electrified fence seems legal, on one's own property, but may not be.

I don't know that CRIMINAL liability will insue in those states that exempt defenses with warnings, but certainly civil liability might. Never know what a jury will do.

And certainly I think any explosive-rigged system is illegal, for explosives reasons if not for booby trap reasons.

Again, reasonable force will be a question for the jury. Explosives are a bit dramatic for a jury to swollow as "reasonable." Explosives charges will likely be in counts 4&5.

I know of no case law on this, and suspect that if an FBI agent were to be electrocuted or blown up upon trying to open/use/disconnect the PC, even with clear warnings, that a prosecution would happen. Results are unclear (to me). (I think that if an FBI agent were to be electrocuted while climbing on a clearly labelled electrified fence, no prosecution would result.) Of course, if a PC were to be clearly labelled as being rigged, then steps could presumably be taken to defuse the arrangement.

Ominously, the possessor is responsible for determining the 'trespasser's' right to enter the property. In other words, if a officer with legal rights to enter the property was injured or killed by a booby trap (warnings or not) liability would almost without question insue. The only defined defense available would be the officer's contributatory negligence (ignoring the sign- etc.). My guess is that FBI enters, sees the PC, calls bomb squad, a member of bomb squad is injured by explosive or electrocution or whatever, liability insues, warning or not. At this point warning is not an issue as the possessor would not have the right to repell legally entitled officers were he present and thus cannot repell them while absent. I've completely ignored the use of other deadly force in home invasion cases. Mr. Sandfort was pretty close to right on there for Cali.

--Tim May

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On Tue, 5 Sep 1995, Jim Choate wrote:

As far as I know the owner of property has no legal right to kill a person either traspassing or stealing it in any of the 50 states. There was a recent federal ruling that basicly says that if you meet a burglar in your home at nite you can not kill or otherwise harm them unless you're life is directly threatened. In short, you MUST give up the ground if at all possible.

In Maryland you have the responsibility to retreat if possible when confronted by someone threatening your life or limb. If you are unable to retreat or are in your domicile (or motel room, etc.) you have the right to use deadly force to stop an attack. You certainly do not have the right to use deadly force against someone for any other reason than immediate threat of life or limb to you or someone else. -Thomas

Under UK law it is certainly illegal to create any device with the intention of causing greivous bodily harm to anyone. The right to self defense is very precisely that, the right to take reasonable steps to defend yourself with commensurate force if attacked. If someone hits you in the face you do not have the right to kill him. If someone tries to do serious harm to you and the only way to avoid that harm is to kill them that is self defense. There is no self defense argument where the purpose is not to prevent physical harm. Any device intended to cause harm to someone tampering with a computer could well land the perpetrator in jail for a very long time for attempted murder or murder. People who go round drawing parallels to gun ownership and cryptography ownership are simply playing into the governments hands. Cryptography has net benefits to society. Most advocates of gun ownership tend to convince me of little more than they are a danger to society. Regardless of their case they are the biggest argument for gun control, and therfore poor advocates of their cause. I see their attempts to draw parallels with cryptography to be little more than trying to shore up their sinking ship with one thats afloat. Phill

On Wed, 6 Sep 1995 hallam@w3.org wrote:

Under UK law it is certainly illegal to create any device with the intention of causing greivous bodily harm to anyone. The right to self defense is very precisely that, the right to take reasonable steps to defend yourself with commensurate force if attacked.

[...]

People who go round drawing parallels to gun ownership and cryptography ownership are simply playing into the governments hands. Cryptography has net benefits to society. Most advocates of gun ownership tend to convince me of little more than they are a danger to society. Regardless of their case they are the biggest argument for gun control, and therfore poor advocates of their cause. I see their attempts to draw parallels with cryptography to be little more than trying to shore up their sinking ship with one thats afloat.

Phill

King George didn't like us owning guns either. I'm pleased my ancestors had a difference of opinion with him concerning this and a few other things. Brad

I am pretty sure that it is lawful to use deadly force to protect property, in New Mexico.