by Michael S. Kaplan, published on 2010/02/18 06:51 -05:00, original URI: http://blogs.msdn.com/b/michkap/archive/2010/02/18/9965421.aspx
There was another odd, if somewhat offtopic example of the phenomenon described in If it was not intended for that, don't do it. No, really. Stop. Now. Please? and rather than in the relevant, topical circles like Future compat is not back compat and wishing can't make it so.... in a much more serious, legal way.
It happened when friend and twitter follower/followee Lily Jang mentioned yesterday in Facebook and Twitter:
Poll: 3 teens face a judge on *child porn* charges for allegedly forwarding a picture of a naked classmate on their cell phones. If convicted of the felony, they would remain on the state sex offender registry for life. Does the punishment fit the crime ? Other thoughts. Will read on-air.
On-air? Oh yes, it is that Lily Jang1. :-)
Anyway, we are really looking at the same problem, just what can happen over in legal circles.
I mean, sometimes a particular type of crime can be happening.
And obviously we want to catch the criminals so the crime can be stopped.
That is the intent.
Laws are then formed, which will properly punish the criminal and protect everyone else from the impact of their misdeeds.
Now I don't think there are a whole lot of people in favor of child abuse. I know I am not, and I can't imagine anyone I know being anything other than not in favor.
But clearly the laws involving registries that sex offenders must be listed in are there to deal with the fact that there are known and documented problems with such offenders becoming repeat offenders. This has been found to be true and psychologists and others have thoughts on why that might be the case.
The intent here makes sense and whether one has troubles with any of the ways such registries and formed, used, or been misused, few will disagree that this intent is at least trying to help mitigate a known problem.
But applying it to this other case -- of a child taking a picture of a classmate naked and forwarding it to others -- is, while perhaps violating the letter of the law, is certainly not violating the spirit of it, the INTENT of it.
It is someone seeing a solution to one problem and trying to apply it to another. One for which it may not really be so great for. Like that Future compat is not back compat problem but a lot more serious, with much more terrible consequences for some kids -- yes, kids.
Plus it is unlikely in the extreme that the law enforcement officers that would make use of the registries or the psychologists who see certain behaviors as hard to control would suspect that these kids would truly be a danger to others.
It seems like a misuse of the law -- treating the law as a sword rather than a shield as it is generally intended here (to protect people).
Now this is an extreme case obviously (and I hope that the media coverage here can have some impact/influence on the issue), but there are probably many other similar cases where a law can be misused.
Just the way a feature in software can be? Perhaps we could think of those over-eager software developers violating the rights of users to not be subjected to the results of bad design decisions? Of course with the crime not causing problems as bad the punishment could hardly be as severe. But maybe checkin privileges could be changed or something....
For the law, the only defense we usually have is the common sense of the prosecutor. But if the pressures on them or their bias or their misunderstanding of the intent is large enough, even their problem space can have this problem.
1 - By which I mean, that one.