Surrogates II: Crime and Law Enforcement

We started our discussion of Surrogates back on Labor Day, and this time we’re going to talk about the story’s implication on law enforcement, crime, and punishment. We touched briefly on the labor issues related to an all-surrogate police force, but are there legal issues too? And do the story’s claims about the impact of the widespread operation of surrogates bear up under analysis? Read on!

I. Law Enforcement

First of all, surrogates will make law enforcement a lot easier. If an alleged victim can produce a recording of the crime, amounting to an objective, eyewitness account untarnished by the follies of memory and the taint of bias, figuring out what actually happened is going to be a lot easier. But what about the fact that each and every unit is marked with a unique ID number? They kind of have to be, otherwise it’d be impossible for the servers at Virtual Self, Inc., to match operators with units accurately and reliably. But as far as surrogates go, this amounts to a gigantic, centralized DNA database where every subject is stored and matched with a location. The implications of GPS tracking are only just now being explored—we discussed U.S. v. Jones shortly after it was handed down—but this goes one step further. It’s one thing if someone is carrying a device which, with a little effort, can be tracked. It’s another thing to be remotely operating a unit which is, by its very nature, already being tracked! Virtual Self makes it clear that they won’t turn this information over without a court order—Vendetti seems aware of the protections of the Fourth Amendment there—but the mere fact that this technology exists is going to revolutionize law enforcement. Once a crime has been committed, the police have probable cause to demand the relevant records from Virtual Self as to who was at the scene at the time. Unless Congress acts to prevent such disclosure, there’s no reason—certainly no constitutional reason—why such a warrant could not be issued, requiring Virtual Self to identify a potential suspect.

But what about the Fifth Amendment? There’s no question that a victim can turn over their recording of events to the police for use in apprehending and prosecuting a suspect. But would the Fifth Amendment right against self-incrimination protect a defendant’s recording of those same events?  It likely would not, particularly because the recordings are mediated by a third part (i.e., Virtual Self).  Fisher v. U.S., 425 U.S. 391 (1976).  The Fifth Amendment protects a witness from being compelled to disclose the existence of incriminating documents that the government is not able to describe with reasonable particularity, but that is unlikely to apply in this case.  U.S. v. Hubbell, 530 U.S. 27 (2000).  Knowing that a surrogate recording exists and the timeframe of the crime would likely be particular enough to compel production.  The key point is that the government is not compelling the creation of the recording (that was done voluntarily by the witness), only its production.  The production of the recording is not in itself incriminating, since the government already knows of its existence and its connection with the witness, likely via a warrant to search Virtual Self’s records.

There are probably other constitutional implications with respect to the Confrontation Clause, i.e., that defendants have the right to confront their accusers in court. Would witnesses even be allowed to testify using their surrogates? We don’t let people testify with masks on, so why would we let them testify “wearing” entirely different bodies?

And wouldn’t the fact that one can’t tell who is operating a given surrogate by inspection be an enormous security risk? Surrogate theft could be an entirely new variety of crime that combines grand theft auto with identity theft. Instead of eliminating a kind of crime, we’ve created a new one. This is not a step in the right direction.

II. Crime and Punishment

The story also suggests that because most violent crimes have been transformed into property crimes—assaulting a surrogate isn’t really assault, it’s vandalism, or destruction of property—that crime rates themselves plummet and incarceration becomes vanishingly rare. This is less likely. True, a lot of what were previously violent crimes are now property crimes. But we already treat many property crimes as serious felonies—GTA comes to mind—and people definitely go to jail for those. Further, Vendetti seems to think that for property crimes, the appropriate and effective remedy is private litigation with damage awards. All that can be said about that is that if such were an effective means of dealing with crime, it would already be working. Most states have restitution laws on the books, but most criminals are broke, and insurance won’t cover intentional acts. So even if a court were to award damages to the owner of an assaulted surrogate, the odds that the victim would get one thin dime out of the perp are pretty close to zero, just like they are for current perps who steal cars. The idea that surrogates would materially affect the size of the prison population is somewhat far-fetched.

Then there’s the idea that surrogates have made the drug trade superfluous and smoking all the rage. First of all, even if the surrogate system could create the stimulus of eating food, smoking a cigarette, or shooting heroin, the effects of all three of those things are persistent in real life. Simulated stimulus is not the same thing. People smoke, not just because they like putting things in their mouths or because it makes them look glamorous, but because nicotine is a powerful, fiendishly addictive drug. Simulating the effects of food does not prevent the need to eat, and if nicotine is accurately simulated, mightn’t one become addicted to real cigarettes—or heroin or whatever—even if one only used them as a surrogate? It all depends on how the simulation is created, but one suspects that any simulation good enough to stand in for the real thing would run the risk of actual physical addiction. Which would drive the demand for real drugs up just as much as it is now.

III. Conclusion

Some of the criminal law aspects of the story hold up reasonably well, but it’s clear that widespread use of surrogates would open a big can of worms.  Surrogates complicate old legal issues and create entirely new ones, and it’s not clear that the benefits would outweigh the costs.  But for better or worse, as telepresence technology becomes more and more advanced (currently largely limited to the “iPad on a Segway” level), some of these issues may come up in the real world.

34 responses to “Surrogates II: Crime and Law Enforcement

  1. Christopher L. Bennett

    Consider, though: If the surrogate telepresence interface is able to replicate the experience of drug use right down to the addictive properties — to artificially induce the same neurochemical changes in the brain that the drug itself would induce if taken directly — then you don’t actually need the drugs at all. The interface devices themselves would be the ultimate drug, since they could be programmed to simulate the effects of any drug by direct neurochemical manipulation. People would become addicted to their own interface units (or whatever they’re called in the story). Indeed, the units could probably be hacked to simulate “designer drug” effects, different and more intense than any existing drug. (Cf. Niven’s “tasp,” a device that remotely stimulated the brain’s pleasure center.)

    Given the consequences if that were possible, I think the surrogates and their interfaces would be designed without the capacity to create addiction in their users. Using a drug through a surrogate would thus be an incomplete experience. However, I’m not sure it’s impossible to divorce the pleasurable aspects of a drug’s use from its addictive properties, unless we’re talking about a strictly psychological dependence. There are already efforts underway to develop a form of “synthehol,” something that induces the “buzz” of alcohol without the downsides of intoxication, loss of impulse control, hangovers, and the risk of addiction.

    • Technically alcohol is not an addictive drug: people do not become chemically dependent upon alcohol. Nor, for that matter, is caffeine addictive and yet people say they “need” a cup of coffee every morning. The analogy is this: caffeine keeps you awake whereas alcohol makes you feel drowsy. (This is why people are not allowed to drink alcohol and drive: alcohol slows your reaction time and also affects your judgment.) Because people who feel tired want to feel more awake and because people who feel stressed want to feel more relaxed people develop dependencies upon caffeine and alcohol, but not chemical addictions.

      Anyway, because people still need food and drink I imagine they would continue to drink coffee in the morning and alcohol in the evening in order to regulate their mood as well as their sleeping habits. The same logic would apply to medicine: an aspirin given to a surrogate might not be as effective as a signal sent to the users brain with the intention of relieving the headache; it’s even harder to see how one might treat colds and flus using surrogates without medicine, although granted people are less likely to get sick in the first place if they never go out themselves.

      Anyway, I imagine that the signals from the surrogates would not cause a chemical dependency: a signal sent to the brain that is meant to simulate the effects of cocaine or heroin would not be chemically addictive. Even if people developed a dependency on the feelings that surrogates gave them that wouldn’t make them want to try the real thing because the real thing would suddenly become much harder to get: with everybody using surrogates and nobody taking drugs, people wouldn’t be making money from the drug trade so the motivation for criminals to smuggle illegal narcotics into America would be considerably reduced.

      • Melanie Koleini

        Martin
        You are incorrect about the additive properties of alcohol and caffeine from a medical view point. The two drugs may not be as addictive as morphine, but they are physically addictive. If someone addicted to alcohol goes cold turkey they can go into a seizure and die. Caffeine withdrawal is not as dangerous but the truly addicted display drug tolerance (they have to keep upping the dose to get the same effect) and if they stop ingesting the drug (caffeine) they get symptoms beyond those caused by simple fatigue.

        I also strongly disagree with your assumption that there is a fundamental difference between direct neuronal stimulation and indirect stimulation of the brain by taking a mood altering substance. Our brains (and the rest of the nervous system) are an electrochemical machine. Every stimulus we are exposed to from the taste of coffee to the wind blowing on your face is experienced via electrical impulses in the nervous system. If we could exactly replicate the electrical impulses created by a stimulus, then we would experience the event just like the real thing. The nervous system wouldn’t know the difference. So if someone uses artificial reality to get high, they could definitely get physically addicted. If they were cut off they could go into withdraw and potentially die. This would happen because the brain had become dependent on the stimulation.

        If we could manipulate our nervous systems as well as they must be able to in the Surrogate universe, pretty much all psychoactive medication from pain relievers to antidepressants would be delivered via surrogate interface. Of course some drugs like antibiotics would still need to be ingested. But still, it’s not just the illegal drug dealers that would lose business.

      • To add anecdote to Melanie’s excellent answer, if I truly avoid caffeine for a day I start getting rather severe headaches. Wikipedia also has a good article on caffeine addiction, which lists headaches as a major withdrawl symptom.

      • Martin Phipps

        I don’t think drug addiction is a result of direct stimulation to the brain. I did know that people developed tolerance to alcohol but I didn’t realize people developed tolerance to caffeine. My understanding was that people drank because they used alcohol as a crutch in social situations such as parties where being uninhibited might be considered good for interacting with others or when they were in a bad mood and needed to alter their mood. This is the first time I had ever heard of alcohol withdrawal.

        In any case, most drug addiction involves addiction to a specific drug. If drug use were replaced by direct stimulation to the brain I don’t think that would do the trick (or vice versa if you were already addicted to a drug).

        In any case, my analogy involving aspirin still applies: if you have a headache then aspirin will lower your blood pressure and relieve the headache. I don’t think signals sent from the surrogate would have the same effect.

      • The fact that it is called “physical” dependence would lead credence to the argument that signals sent directly to the brain would not have the same effect.

  2. As to the effects of universal, always-on, personal recording technology, see the the “Neanderthal Parallax.” Their “alibi archive” makes false conviction all but impossible.

  3. Do you do newspaper comics as well? I have a question about the marriage of two officers in one.

      • The comic strip in question is Jump Start. In it Officer Joe Cobb’s partner Crunchy is openly married to their captain Ruiz. Would this be grounds for dismissal, or at least insisting that one of the two move to another district? Judging by the uniforms and a few mentions the setting is Pennsylvania and probably Philadelphia.

  4. Interesting variant on testifying via a surrogate. What if the person was too injured to take the stand? I can’t recall what you need to be able to be plugged in, but proceedings might be able to take place using a stand in surrogate instead.
    Also, it might help with witness protection. If you can’t even be sure of their gender…
    (That said, most stories would then hinge on crime gang du jour having a contact within Virtual Self to find out who the original person was…)

    • Generally you’re required to make the identity of the witness known.

      • That isn’t generally enough either. We’ve concluded on several previous occasions that simply “making their identity known” won’t cut it. The witness needs to be present, and identifiable, in the courtroom. Testifying remotely is only permitted in exceptional circumstances, mostly limited to child witnesses who have allegedly been molested. The fear there is that putting the child and the defendant in the same room will result in botched testimony for everybody. Other than that though, courts are adamant about a personal, physical meaning to the Confrontation Clause.

      • Again, what if it were illegal for somebody else to operate your surrogate? A person may not be allowed to wear a mask but he is allowed to change his appearance (makeup, hairstyle, clothing, etc.). A surrogate is not a mask if it cannot be used to hide one’s identity.

        Another question is whether or not the witness needs to testify at all: if the witness was using a surrogate then, technically, the witness was not at the scene of the crime and only witnessed what happened through the video feed. Why then bother asking the witness to testify at all? What can the witness testify to that isn’t already provided by the recording?

      • It could be unreasonably difficult to cross examine a witness in that manner, there could be an issue of someone who cannot be seen influencing the witness and many judges like to be able to see the witness giving testimony. Besides that there plenty of people who only see events through a video camera as security guards and police officers, they aren’t given any leeway to not appear in court presently so I can’t think of a reason why the court would change established procedures now.

      • Again, would a cross-examination be necessary? If anybody had to be cross-examined it would be someone from Virtual Self because it was Virtual Self who was collecting the evidence. Imagine if a friend of mine took a video and then showed it to me later and I saw that there was a murder that took place and my friend didn’t even notice this when the video was being shot. Who needs to testify in court? Me who was never at the scene and only noticed what happened after the fact or my friend who was actually at the scene and was responsible for collecting the evidence? Arguably we could both be called to testify, say for example if the video was left in my possession before I watched it, but then I would only have to testify to the fact that the video hadn’t been altered by me and that the video I being shown in court was the same one that my friend had given me. That’s it. I couldn’t comment at all about what happened at the scene because I wasn’t actually there.

      • Philo Pharynx

        Another issue to having a witness present is that the jury must evaluate the witness’ testimony. Testifying through a surrogate may alter the nonverbal clues that might indicate falsehood. Of course if the jury hasn’t interacted with many live people, they may not have good skills at understanding human non-verbal clues.

        In addition, you would need to be concerned if a jury was there in surrogate. They might have a person in their physical location affecting them, and they could be looking up outside information that could taint the decision.

    • (Not sure if people will see this add on in the thread.)

      What of physically disabled people who could not otherwise go physically anywhere (or with extreme difficulty)? With Surrogates, they can get out and about, but attend a court hearing…

  5. Something else I thought of while reading this. Terry stops would be rendered moot by officers’ use of surrogates. The purpose of the stop and frisk is to pat down for weapons, for the safety of the officer. No more risk, no more frisk (feel free to use that one Surro-ginsberg).
    I think the 4th amendment in its entirety would have be reconsidered.

    As to the drug issue, in Georgia, and I assume elsewhere, we have a statute that bars synthetic drugs that are more or less the same as the the ones they imitate. I could see the argument that surrogates’ creation of equivocal sensation is the same as a synthetic drug.

    • You still need to check for weapons unless you want to risk an expensive machine getting shot up (to say nothing of anyone around you).

      • No, the reasoning is not for safety of property. It’s specifically for the health and safety of the officer himself. Terry v. Ohio would be rendered moot and inapplicable. Stop and frisk for the safety of property (surrogates) would have to be under some new law. Furthermore, this new law would be unprecedented, as I said, pat downs for safety of property have never been allowed in any way.

        You could make the argument about safety of others, but I think the premise is the widespread and almost total use of surrogates, so that’s not really an issue.

  6. “every subject is stored and matched with a location”

    How would this affect suspects who are ordered not to leave town? If they stay in town but their surrogate leaves town have they violated their court order? What about restraining orders? Let’s say you are told you can’t be within 100 metres of your ex-wife: does that apply to just you or to your surrogates? If it applies to your surrogates then maybe your ex-wife can be warned automatically when your surrogate appears within a hundred metres.

    “one can’t tell who is operating a given surrogate by inspection”

    Obviously the solution would be to make it illegal for more than one person to operate the same surrogate. There may be reasons why you might want different people to operate the same surrogate: for example, the surrogate belongs to the company you work for and they have somebody else use it when you go on vacation or finish your shift. But because you don’t want people to hack into your surrogate and pretend to be you, people would rather not have a surrogate that they use every day ever be used by anyone else. It is a lot like a car: cars have driver’s licenses and registration numbers and this lets the police know who was driving a car, say for example, if you hit somebody or were seen driving away from a crime scene; if you give out your car keys to other drivers then you can be accused of something you didn’t do so most people would be very careful about who they let drive their car.

    If everybody used surrogates then security would be a lot easier: an alarm could go off whenever an unauthorized person entered a building. If somebody did take your surrogate then it would be easier for them to get into places that only you have access to. If anybody were to operate your surrogate without your permission there’s a good chance they are up to no good.

    “The idea that surrogates would materially affect the size of the prison population is somewhat far-fetched.”

    Didn’t we already discuss this when we talked about somebody attacking Wolverine? If you know that Wolverine can’t die then you can’t be charged with attempted murder. If everybody had a healing factor like Wolverine then murder might as well be taken off the books. In fact, with surrogates you can push somebody off a cliff and you are only damaging their surrogate. The question is then whether or not you would go to jail for that. I imagine that they could just take away your surrogate: in the world in which the story takes place, people are so accustomed to using surrogates that they don’t feel comfortable going out without them. Thus there would be no reason to send anyone to prison.

    • “How would this affect suspects who are ordered not to leave town? If they stay in town but their surrogate leaves town have they violated their court order? What about restraining orders? Let’s say you are told you can’t be within 100 metres of your ex-wife: does that apply to just you or to your surrogates? If it applies to your surrogates then maybe your ex-wife can be warned automatically when your surrogate appears within a hundred metres.”

      Somehow I think the phrase “…or a surrogate operated by…” will very quickly become very common in things like restraining orders. Unless things come to pass that you are considered to be both where your body is and where any surrogate you are operating is[1].

      The use of tracking data to enforce/monitor movement restrictions does seem likely.

      [1] Similar to how Canadian telecommunication law works: When I send this post I have done so both in Toronto and wherever the LatM servers are.

  7. Wouldn’t using a surrogate make it harder for the police to just casually arrest someone?

    If you do something that might be criminal, the police can arrest you. But if you’re using a surrogate, what do the police do? They can’t arrest someone who’s not there. Even assuming that laws are passed which let the police arrest you by announcing the arrest to your surrogate (and/or confiscating your surrogate) and making it a crime not to then come to the police station, wouldn’t this cause heavy logistical problems in making arrests (especially violent criminals)?

    Also, as for suspects who are ordered not to leave town, I am under the impression that this is done to make sure that the suspect is available to the police and court system, not as a form of punishment. Since operating an out-of-town surrogate from in town doesn’t make the operator unavailable to the police and courts, shouldn’t it be permitted?

    Would it be illegal to serve alcohol to the surrogate of someone who is under 21 and operating a surrogate, assuming that the interface replicates the effect of alcohol in the actual user? Or would the drinking laws be instead be enforced on the surrogate dealerships, such that it’s against the law to sell, to someone under 21, a surrogate that is capable of transmitting the effect of alcohol? Would teens and children be limited from operating adult-body surrogates at all?

    Could there be laws making it illegal to operate a surrogate while drunk, similar to drunk driving?

    Could going somewhere in person (and therefore not having a recording automatically made through your surrogate) be taken to be evidence of criminal intent?

    • Presumably if you control it then there has to be an electronic connection with the person somewhere. The police could both seize it, get a physical location traced (maybe make it so that companies must immediately give over any tracking data from surrogates arrested for proxy crimes) and search the location.

      • In the movie, the surrogates are registered to their operator and most people would operate their surrogates at home so if they arrest your surrogate then they would probably send someone over to your house to make sure you don’t flee. They would probably question you through your surrogate, however, so they wouldn’t have to physically bring you to the station. Indeed, you could be living in New York and operating a surrogate in Los Angeles so the idea of arresting you in New York and bringing you to California would be a huge jurisdictional hassle. Plus, on top of that, the witnesses don’t know what you look like so why bring you to court in person at all? The prosecutor will ask “Is this the man who committed the crime?” and the witness would say “How should I know? All I saw was the surrogate!” For all these reasons I don’t see why defendants would be brought to court in person at all and if the defendant himself isn’t there then the witnesses might as well show up as surrogates. Of course, the defendant may still have the constitutional right to demand that he and the witnesses all appear in the courtroom but the judge may see this an attempt to delay the proceedings. I would imagine that a constitutional amendment may be necessary to prevent people from insisting that the confrontation clause means that the defendant and witnesses all have to appear in person and not as surrogates.

  8. If you call someone to testify as a witness because their surrogate was at the scene but they weren’t actually at the scene in person then I can see how a lawyer might have a problem with this: the witness’ testimony relies exclusively on the content of the feed provided by the surrogate. Opposing lawyers might argue that witnesses that weren’t at the scene in person would not be able to testify and that the court would have to be satisfied with the raw footage recorded. To me, it seems a lot like hearsay: if a murder were committed and it was shown on live TV would everyone who saw the murder at home be called to testify or would the police just use a recording of the broadcast as evidence. Basically the question is whether or not you can trust what you see on TV or through your surrogate. Is it as reliable as what you can see through your own eyes? Does you seeing something through a surrogate feed make you a witness to the event?

  9. If yuo are operating a surrogate across state lines and commit a crime would this count as a federal crime? Furthermore the signals you make to your surrogate have to travel through wires and/or the air to your surrogate so I would imagine there are some telecommunication laws being broken as well.

  10. As I think about surrogates, I keep wondering why they are so heavily used.
    Surrogates are basically remote-controlled androids. If the surrogate is interacting with a real person or doing something in the real world (like weeding a garden), I can see why you would want a robot to do the job. But it seems like a lot of surrogates spend most of their time interacting only with other surrogates. In those cases, isn’t the android redundant? And for the surrogates that are actually doing tasks (like building something in a factory), why do you need an android? Wouldn’t a robot (that doesn’t look human) be more efficient?

    If technology exists that can create experiences that feels so real people choose to go on vacation via surrogate, why not just plug in and interact with people in a fully virtual world?
    That would really change the crimes committed (if not actually reduce them). If a crime occurs in cyberspace, who has jurisdiction?

    • The “cyberspace jurisdiction” question is actually pretty straightforward. We’re already dealing with that every day. Basically, both the court where the defendant lives and the court where the impact of the crime was felt will have jurisdiction, and potentially the court where the server resides as well. There’s a growing body of case law about personal jurisdiction and the internet.

      As to the rest of it, the story is pretty clear that (1) true AI doesn’t exist, and (2) virtual reality isn’t all that much more advanced than it is now. Surrogates are great at transmitting stimuli, but only the real world has all that stimuli to be transmitted. Programming virtual worlds with the same level of detail and believability as the real world is currently impossible, and the story implies that it remains so even after the introduction of surrogates.

      This isn’t entirely implausible. AI has proved to be remarkably difficult to create. It’s either mind-numbingly stupid, entirely predictable, or cheats like a bastard. In no case have we gotten a computer to display anything like actual intelligence. So while surrogates definitely represent an advance in robotics technology, the way the story is written, you still need human operators to do basically everything that humans do today. They may be robots, but they’re not automatons.

      • Melanie Koleini

        I will accept that AI technology is very different than transmitting of sensory information. But a human could remotely operate a robot that doesn’t look like a human.

        I don’t buy artificial reality technology not being as advanced as surrogate technology. Full emersion artificial reality is too close to what the surrogates do for it not to exit. If you can make me feel like I’m walking around in New York when my body is in LA, a virtual New York has been created. If that amount of sensory information can be transmitted instantaneously, then it can be recorded. Computer modeling can then use the raw data to build the base of a virtual world and model the sensory inputs needed to make the subject able to make changes to the virtual world.

      • If you can make me feel like I’m walking around in New York when my body is in LA, a virtual New York has been created. If that amount of sensory information can be transmitted instantaneously, then it can be recorded.

        I guess I’m just not convinced that that’s true. I think there’s a categorical difference between recording something and creating it from scratch. Think about it this way: it’s the difference between a camera and a CGI image. Taking an image of a rock with a camera is trivial. Re-creating that rock in 3D? Not trivial at all. The fact that we can do one pretty easily–and have been able to for a century–does not make the latter any easier. I still think that even if we can figure out how to transmit sensory data effectively, that doesn’t actually help us create said data from scratch.

        In fact, we’ve actually started using motion capture in CGI effects because creating actors from scratch has proved to be an insurmountable challenge. It’s easier to just record the actor moving and then change their appearance than it is to create an entirely artificial actor. And movies like Avatar? You can’t walk around in a movie. It’s a recording. For it to be a convincing virtual world, one would need to have a representation of every possible perspective at every possible zoom level for every possible location. It’s a potentially infinite amount of data. Video games do this by either having objects which are obviously CGI or by procedurally generating the landscape, neither of which is an option here.

      • Melanie Koleini

        Ryan,

        Maybe we have a different definition of artificial reality. AR doesn’t have to be created from scratch. You can start with real-world recordings. And as to taking a picture of a rock being easier than creating it in 3D, well, what do you think the surrogate interface is doing? The surrogate interface must be ‘creating a 3D picture of a rock’ because that is what the user is seeing. 

        I’m not saying it would be easy to do but really, figuring out how to make a person feel like they are interacting with the world when they are not is a lot more complicated than modeling human movement.  (Which, as you mentioned, video games already do.)

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