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.