The lovely Ron, with whom I appear on radio with (commercial radio no less, none of this community radio business) sent me this fascinating story, with a question: "Can you jail a computer bot if it commits a crime."

Here's the lowdown. A group of artists programmed a bot (a computer based, automated program) that would go inside the dark web and buy $100 worth of random things for sale there. The artists did not know what the bot was buying, the bot just bought whatever.  

The dark web is that part of the www that is dark and creepy and you can buy everything from drugs, to hits on someone, to illegal broadcasting equipment.  The dark web is basically the Diagon Alley of the Internet.

So, these artists gave this bot some Bitcoins, which is a virtual currency,and programmed it to buy whatever the bot wanted from the dark web. Amongst other things the bot purchased, some fake bogus letters used to check to see if your mail was being intercepted by law enforcement authorities, a baseball cap with hidden recording equipment and a nice big stash of ecstasy tablets, because ART.

So, can the bot be put in jail because it's importing drugs? While this case took place in Germany, let's pretend for our purposes that it happened here.

Can you put the bot in jail? Well, obviously not. You can only put a natural person in jail (as opposed to a company which is also a legal person, but not an actual person, person). 

There is still drug importation happening though so someone must be accountable. How would this go down here in Australia?

Let me put my fancy legal education to work here and answer this like a lawyer would. 

  • Is there law that regulates this area that is being broken?

Yes. 

A whole lot of it.  The Commonwealth regulates laws regarding the internet and what is not allowed to come into the country (drugs, unauthorised communications equipment) it also regulates cybercrime, like using computers to commit criminal offences.  

The Criminal Code Act 1995 (Cth) under Division 477-478 regulates computer crimes. the Proceeds of Crime Act 2002 (Cth) regulates what people can do or not do from the items they obtain that have been obtained because they have committed a crime.  The various states and territories also have laws regarding controlled substances like drugs and other illegal equipment.

So there are offences that can be committed, the law is not silent on matters like this. Some of the laws the artists could be charged with are: drug importation, using a carriage service (internet) to commit crimes (import drugs and depending on the quantity, import and traffic drugs), importing banned communications equipment and so on.

  • Are there any defences?

No.

Art is not a defence for anything. 

Sorry I killed my friend because performance art does not fly in court, any court, for anything. Nope.

  • Who is to blame if the bot is automatic and the artists didn't know what it was buying?

Enter a little thing we lawyers like to call 'causation'. Causation is a legal doctrine that you will find in criminal law and in torts (civil injuries) law. Causation basically means what it sounds like: what was the cause?

The usual test in causation is called the "but for" test, which is a fancy way of saying if it wasn't for X would Y have happened? 

Using the example above the "but for" question would be: if it wasn't but for the artists programming a bot, would the drugs and other illegal products have been purchased? 

Or 

Would the crimes have been committed if the artists were not in the picture?

Or with a simple diagram:

- no artists means > no bot > and no bot means> no drug importation.

  • How can you punish the artists? They didn't know what the bot was buying?

Sure, but if it wasn't for the artists then the bot would not have purchased anything at all. 

Also, given the dark web is the Diagon Alley of the internet it is not completely unforeseeable that the bot would have purchased illegal items.  If the bot was allowed to buy $100 worth of Asos clothes a week then it wouldn't be an issue.  The artists knew that there was a high likelihood of the bot buying something illegal, in fact they expected it.

  • So who goes to jail?

The artists, at least on the face of it.  The prosecution and the various police forces that would take charge of this would have to prove that the crimes were caused by the artists' actions, even if they themselves did not actually buy the drugs.  Jail is not the only solution here, there could be fines, community based orders or just a plain warning. 

Sending people to jail just because they commit a crime isn't always the best thing to do.  The police would first launch an investigation and if it is in the public interest to prosecute (amongst other factors) then they would and the case would play itself before the court.

Can you send a bot to jail? No, but you can punish the people who have programmed it, provided you can find them.

Conclusion 

The artists would get investigated at least, because if there is no action from the artists then there is no bot; sure the bot technically committed the crime but only under the artists' instruction.

 

 

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