Introduction

The use of law and diplomacy can resolve the Cyber Security conflicts between sovereign states, within countries and amongst private actors through the use of economic reasoning and Christian Values. The use of deterrents, countermeasures and defenses can alleviate the threat from private and state actors. Inter alia, the spread of Christian Values will assist in the effort to do good for the world instead of pursuing evil through the use of cyber channels. “So in everything, do unto others what you would have them do to you, for this sums up the law and the prophets”[1]

With the world becoming increasingly connected through the internet and every person having a personal internet device, it is increasingly likely that Cyber Attacks will occur. Both between sovereign countries and among private actors. “Plus, China and Russia are trying to take out our internet every day. People really like the internet. They’re always checking it” -Steve Carell as General Mark R. Naird[2]

Facts and Legal Issues

  1. Cyber attacks

Cyber warfare presents an increasingly new threat on the world stage. Today, unlike 20 or 30 years ago, an attacker can act from a distance on the other side of the world without ever having to be subject to the laws or reach of the target nation.[3] Therefore, the implementation of international law on the matter is vital to peace and basic human dignity.

When addressing a Cyber-attack several considerations must be noted. “The effects of a cyber-attack can range from a simple inconvenience (such as a DDoS attack that disrupts web traffic temporarily), to physical destruction (such as changing the commands to an electrical power generator causing it to explode), and even to death (such as disrupting the emergency lines to first responders so that calls cannot be made to police or ambulance services). But treating all forms of cyber-attack as a use of force would require an implausibly broad reading of Article 2 (4) that includes non-physical damage.”[4] However, allowing the eroding of the moral fabric of society and the salacious perpetuations of a few will only serve to detriment the people. Though it may be implausible to read Article 2(4) in an expansive manner, to ignore some malfeasance is to invite the horrific.

Another source of cyber weakness in the system is the rise in “crypto-currency.” Crypto-currency is a type of internet or computer based money. Currently, there is a large amount of assets tied up in crypto currency. Crypto Currency has been linked to money laundering which does have an effect on where money gets invested.[5] Where money gets invested directly effects what agendas are affected or supported by world powers. The dangers with Crypto Currency is that in the blink of an eye, if a hacker is able, they can wipe out Billions in electronic assets. At least one of these crypto currencies has been hacked. Major Cyber security breaches have occurred in relation to these crypto currencies or block chain money. These security breaches have affected billions in assets. A major issue with crypto currency however, is that it is often used to launder money from ill gotten gains or activities that are otherwise illegal.

Another form of cyber attack is one that is perhaps more terrifying for a lot of people and that’s a cyber attack on an airplane in the sky while flying. Today, most passenger jets are what’s known as “fly by wire.” Fly by wire is when an autopilot or electronic devices control the controls of an airplane. Even small general aviation airplanes have rudimentary fly by wire devices. These systems become much more complex on the newer larger jet airliners. The more complex a system is the more potential points of attack it probably possesses. For example, today these large airliners are often connected via data uplink to a satellite or ground facility.

Though there have not been any confirmed cyber attacks on a large jet liner, there has been speculation. Iran has claimed that they U.S. brought down a passenger jet using hacking. There was significant speculation that the recent 747 Max crashes occurred because of hacking. The claim was that a hacker manipulated the control surfaces of the elevator to cause the crash, Boeing and the NTSB later dispelled this assertion claiming that the crashes happened because a system was not disengaged. They added a regiment of training to the type rating after these crashes. This is a scary notion that a person on the other side of the world could crash a jet liner using a computer. Most of the equipment used in aviation, at least in the U.S., is a high standard and quality. Any potential hacker of an airline would really have to know exactly what they were doing.

There have also been claims that certain motor vehicles have been hacked. That the driverless cars and autonomous vehicles have weaknesses that hackers could exploit. Several studies at major Universities have suggested that these vehicles can be accessed by bad actors. These studies showed that the vehicles autonomous modes could be manipulated to cause them to crash into objects potentially harming the occupants.

Perhaps one of the scariest things about these potential dubious acts is that a hacker could get away with it. It is not easy to trace someone and their computer, especially someone that knows how to hide what they are doing. Cyber Security is constantly changing with technology and what is done today may be totally different from what is done tomorrow. In order for bad actors to be brought to justice there needs to be experts that know how to find this sort of activity. Essentially, it needs to better for a bad actor’s life to do good instead of evil. Power has a way of inherently manipulating individual thought processes and Cyber Security is no different.

Finally, Cyber Security related to corporate espionage is also of concern. Corporations foreign international stealing each other’s ideas and hoping for the later to fail. China steals American corporate information constantly. They will gather information from a corporations systems then, a few short months later, you’ll see the same product on Chinese shelves but the product made by a different company. Corporate Cyber espionage has significant economic effects. That can severely affect a business. Fortunately, in the U.S. we do not allow violations of Intellectual property law so products made as a violation of cyber security are not supposed to be allowed on American shelves for sale. This is increasingly difficult to enforce though.

  1. International law applicable to cyber warfare

The International Law applicable to cyberwarfare is a nations right of self-defense under the United Nations Charter, by Article 51.[6] This acts as a deterrent to bad state and private actors internationally. Self-defense is a foundational principle in legal doctrine. The idea that a party should have to wait until a nefarious party act upon them before they may act. These leaves open quite a bit to question. With China and Russia constantly collecting information on American citizens, this seems like the cold war all over again only on a different level. Information has always been valuable, but today the amount of information and its detail are highly intrusive. The U.S. should not be required to wait until China or Russia engage in bad action when we know that they are preparing for bad action. This leaves the American Citizen vulnerable. And, that should not be the specter.

A limitation on the law of self-defense is “necessity” and “proportionality.” Through necessity a sovereign state is supposed to attempt peaceful negotiations first before reacting with a counterattack. Though this is what humanity should aspire to, we must take away the bad actors ability to inflict future attacks. Otherwise, we could just be seen as appeasing Hitler.[7] When a bad actor does something through cyber warfare, the ability of that actor to do said harm must be taken away. Necessity would suggest that we wait until a bad actor takes down the power gird until be blow up their computers. This is unwise because civilian deaths could quickly surmount in the U.S. if the power grid goes down. Just like all those elderly people that passed away in Florida nursing homes when a hurricane came through and knocked out the power. What should be done is what the U.S. probably does not do enough of, which is gaming the system. Conducting fake attacks on our own system in order to find where the wholes are and fix them.

Through proportionality, a state is supposed to limit the counterattack to defeat the ongoing attack. The current international law on proportionality does not fully address the issue of future attacks. If a future attack is emanate or there is nothing deterring a future attack then it would be proportionally appropriate to take the ability of any future attack away from a deviant state. Similar to taking Saddam Hussein’s ability to produce weapons of mass destruction away from him.[8] Whether they actually existed in the first place, appears to be debatable.[9]

Proportionality is up for deliberation on what is considered fair. Because fairness is the cornerstone of law, it must be weighed whenever the international community or individual state actors seek to effect proportionality. Without the foundational idea of fairness within the law, law itself would become unhinged, through the balance of fairness the law has created a civilized society. The problem with proportionality is that it leaves the bad actor able to fight again another day. Kind of like what the United States and the international community did with Saddam Hussein in the Gulf War. The United States only booted Saddam from his unlawful occupation of Kuwait and did not go all the way to Baghdad to remove him from power. Low and behold the U.S. had to go back to the gulf a short decade later to remove Saddam under the alleged WMD scandal.

  1. The United States

The United States has identified Russia, China, Iran and North Korea as an ongoing threat to U.S. cybersecurity.[10] The foregoing nations have sought to affect critical infrastructure, sew discord among American Citizens and even directly interfere with the U.S.’s electoral process. These governments have a particular kind of agenda. For example, Facebook in order to operate in China, ran ads on their platform denying the genocide of an entire race of people in Asia.[11] Which is still ongoing.

In a speech by Nobel Peace Prize winning U.N. Secretary-General Kofi Annan in 2006 regarding Human Rights, “If we are serious about human deprivation, we must also demonstrate that we are serious about human dignity, and vice versa.”[12]  Though Annan was speaking on extreme poverty, This very much applies to those in our Federal, State and some local well-funded agency’s that act with impunity while violating the human right to privacy of the United States Citizen. Many large corporations are acting with similar impunity.[13] The United States government and many large corporations could quickly be brought before the International Criminal Court, if the U.N. started pursuing such injustice and if the United States agreed to the Jurisdiction of the International Criminal Court. Basically, what the United States Government is saying to the rest of the world is that they would seek to pursue evil rather than good. That even though there is a high level of influence the U.S. has within the U.N. (i.e. Permanent Member of the Security Council, U.N. Headquarters in the U.S., and general world dominance) it is better to forgo jurisdiction of the ICC and adhering to the Human Right to Privacy through cybersecurity then to do evil upon its own citizens. “With great power, comes great responsibility.”-Uncle Ben[14]

The U.S. Federal Government, and in which case has a trickledown effect to state and local governments won’t even adhere to the Geneva Convention on Torture.[15] John Hutson, Judge Advocate General for the United States Navy from 1997-2000, “Adherence to the Geneva Convention is more important to us (The U.S.) than to any other nation.” This applies to all Human Rights in the United Nations Charter. “...Justice has often bolstered lasting peace, by de-legitimizing and driving underground those individuals who pose the gravest threat to it. That is why there should never be amnesty for…. massive violations of human rights.”[16] Without holding those in the United States government accountable for their actions, it will only create an environment for them to utilize their power in pursuance of Bollea v. Gawker type of deviance.[17]

  1. The effects of a cyber attack on an individual level

Online psychological manipulation on an individual level can subject a countries citizens to a distortion of reality.[18] The general publics denial or lack of understanding of which will most likely lead to the ideocracy of civilization and foundational malevolence. Human’s quite often believe what is shown to them, not because of objective truth, but because of incessant truth. What is in their “feed,” they see on the internet, and the media reports. In other words, a truth that is not really a truth it is merely repeated repeatedly and therefore becomes accepted as truth for only that reason. This has exploited the inability of a significant number of individuals in conjunction with the collective, to think for themselves. A manipulation that has been perpetuated since the invention of the written word.

A similar form of cyber malfeasance among private actors in the United States, is isolation of  smart phones of individuals or utilizing geolocation technology to determine particular jurors. Then manipulating what they see on their phones to appear in a way to tortiously sway a jury. This is in every essence, jury tampering.[19]

Furthermore, and perhaps an even sinister cyber attack on an individual is spousal, partner or former partner abuse.[20] Essentially, a the cellphone is a constant listening device and those that do not seek to do the right thing are harassing others and most certainly breaking United States federal law. Even if a state has not passed legislation on a particular matter, federal law quite often applies. For example, the sweeping but far to often unenforced Computer Fraud and Abuse Act (“CFAA”) applies to those whom seek to use computers, including your smart phone or other electronic device for purposes other then intended, abuse or deviance.[21]

On an international level, the Chinese based “TikTok” smart phone application has come under significant scrutiny lately. The application is immensely popular. The addictive nature of the application is uncanny. It fills the heads of its user with dopamine inducing short video clip after short video clip. TikTok is the result of a group of computer engineers getting together and attempting to make the most addicting application. It is very easy to get lost down a rabbit whole of TikTok videos. However, recent review of what the application tracks and the data it collects has resulted critical review of the application. The application basically keeps track of every single button you push on your cellphone and sends it to Chinese intelligence agencies. Similar to crack cocaine, we cannot allow the American people to destroy themselves and the country by doing this.

  1. Human Rights Law

On the international level, we see significant United Nations Resolutions occurring regarding the Human Right to Privacy.[22] Though there will always be rouge states, organizations, agencies and individuals. United Nations Resolution 68/167 The right to Privacy in the Digital Age, provides in part:

            “Reaffirming the human right to privacy, according to which no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, and the right to protection of the law against such interference, and recognizing that the exercise of the right to privacy is important for the realization of the right to freedom of expression and to hold opinions without interference, and is one of the foundations of a democratic society, Stressing the importance of the full respect for the freedom to seek, receive and impart information, including the fundamental importance of access to information and democratic participation”[23]

Through resolutions of this nature and the worlds superpowers recognition and actual implementations will we as a world society see a better tomorrow. Through undercover and clandestine FISA courts will we see a fundamental downfall of civilization as we know it. FISA courts are essentially the government’s way of being a “peeping tom” and getting away with it. Anyone else being a “peeping tom” gets a sex offenders charge.

Current International Law regulating Cyber Security centers around International Human Rights Law. The misuse of information by various conflicting groups has created a disinformation humanitarian crisis, through avenues such as hate speech, population manipulation and radicalization.[24] There have even been reports that bad actors can use the internet, usually through social media, to influence who interacts with who. In other words, a bad actor could use social media to determine a person stance on various issues use that to create a meeting with another person who has completely opposite views. Wherein theses two parties would usually not interact with each other or generally come into contact, they could be manipulated to be at the same place, at the same time and under other conditions that could lead to disastrous effects. They can utilize the knowledge of people’s patterns to and activities. Most people are in a routine set or pattern of movement throughout the day. This is probably what the mass collection of personal data China is engaging in is really doing. These sorts of interactions can be used to sway the course of peoples lives. Or, in a bad state actors hope of increasing the likely hood of a negative interaction that may sway an election.

In counties worldwide, the right to privacy varies greatly. For example, in China there is zero right to privacy. They have implemented a facial recognition system that is extreme. If you walk across the street in China when you do not have a green light to do so you get a ticket in the mail. This is starting to show itself in the United States with redlight camera’s. These redlight cameras are probably not constitutional but that has not been fully determined and most localities do not like them for that reason. I am very thankful I am not a Chinese citizen or a person living in China or Russia. At least in the U.S. if the authorities cross a particular line of indecency, I have a right to ask a random group of people whether the government owes me money or a remedy. Its certainly not easy to get to a civil jury but that relief is there. Even if it costs years of your life.

On the other side of privacy is Greece, it ranks top in the world on privacy which is interesting when we think about the birthplace of democracy. The Greeks value their privacy and do not want the local authorities impeding on that basic human right. Maybe after a few millennia of being a democracy, like Greece, the U.S. will come to its senses. Keep your heart with all vigilance, for from it flow the springs of life.”[25]

How Law and Diplomacy can be used as a resolution

  1. Diplomacy in Cyber Security

In 2015 leaders of the G20 met to assert a charter on Cyber security. This charter not only applies to state but also non-state actors in the cyber world. In 2018, the United Nations through an open-ended working group adopted several resolutions to address international law concerning cyber security.[26]

Through international diplomacy the world community can achieve proactive cyber security resolutions. Diplomacy can help distinguish what is important to different countries. In some countries in Europe, there are what is called “right to be forgotten” laws. These laws restrict companies like google from keeping certain embarrassing information about particular people on the internet indefinitely. If information can be left up indefinitely, this can affect future employment and so forth.

The U.S. and other superpowers are primarily concerned with matters like holding hospital information hostage or attacks on critical infrastructure. Over the past decade there has been several attacks on hospitals and major healthcare providers. What a bad actor will do is access a providers servers or data centers and make it so the usual doctor or nurse cannot access it until a ransom is paid. This can have catastrophic effects on the trust most of society places on medical providers surrounding  doctor-patient confidentiality.

In any event, diplomacy can help solve these issues if everyone in the international community could get on the same page. Through diplomatic intercourse, the world could come to an international community understanding that certain matters are in congruent with Christian values and some things are not. This would “take the wind out of the sails” of those who would seek to hack servers and systems for wrongdoing. Because quite a few of these ransom ware circumstance originate from countries on the other side of the world where domestic law cannot reach. Not without international agreement.

  1. The United States in relation to the rest of the world

The United States has significant work to do as its Constitution and legislation does not adhere to the standard set on the international stage regarding the human right to privacy.[27] Article 12 of the Universal Declaration of Human Rights from 1948 provides for a Human Right to Privacy.[28] With an absolute disrespect to the human rights of its own citizens in the cyber security realm, the United States is most certainly lacking. “We [the U.S. government] like the fact that it is a Wild West because it lets us do more attack and exploitation."Jason Healey[29] That is a derelict approach to a human right.

When contemplating this particular kind of Human Rights violation, one is reminded of “Cold War-ear U.S. policymakers such as George Kennan and Henry Kissinger, whom insist that certain rules can and should be broken when it is in a state’s interest to do so.”[30] This notion finds little logic when dealing with a state’s own citizens pertaining to the Human Right to Privacy or in most circumstances absent a battlefield situation. And, for the most part seems akin to what the British were doing to the American Colonist immediately before the declaration of independence. Two hundred years ago they had eyes and ears in all of the colonists’ homes by forcing the colonist to quarter British soldiers, today there’s a microphone and camera in every home. Essentially, tyranny just got more efficient. “We are condemned to repeat our mistakes if we have not learned the lessons of the past.”[31]

The idea that the American people now have to worry about undressing in front of an electronic device for fear that Uncle Sam or Deputy Rosco is eating a donut watching and getting a taxpayer paycheck to do is pathetic and undignified. This is similar to the harassment undertaken by the FBI labeling Martin Luther King, Jr. a threat to national security. The same thing was done to another human rights activist, Cesar Chavez. Even Susan B. Anthony was harassed by authorities when she sought to point out the injustice of their hypocrisy. If an individual does not believe those in power are doing the right thing, law enforcement will look for a way they can break U.S. Constitutional rights of that person and attempt to maintain the status quo. This is most unfortunate, because what those in power are asserting is that positive change should be stifled. “On that day many will say to me, ‘Lord, Lord, did we not prophesy in your name, and cast out demons in your name, and do many mighty works in your name?’ And then will I declare to them, ‘I never knew you; depart from me, you workers of lawlessness.”[32]

In recent history, the Obama administration extended INTERPOL protections under the privileges and immunities act.[33] This is quite disturbing as it allows an international law enforcement agency to operate on U.S. soil without being subject to U.S. courts jurisdiction. Essentially, INTERPOL can conduct law enforcement operations with no oversight. INTERPOL’s record keeping and operators are immune from any wrong doing. In The U.S., though severely under enforced, Law Enforcement agencies are at a minimum subject to the U.S. Constitution. But, that will not be the case for INTERPOL.

  1. Systemic Implications of Cyber Security

Utilizing the United Nations as an avenue for diplomatic negotiations will be the most productive route to a successful resolution. The economic impact of continuing a continuous cyber war will likely produce $9 to $22 trillion dollars of waste by 2022.[34] This is an astronomical number and more then quite a few small countries gross domestic product. Crypto Currency cyber hacking has been said to cost upwards of 2.8 billion.

There is essentially a balance of what is wasteful. Similar to the way the U.S. transportation system operates. How much is the damage worth compared to the cost of preventing it. Quite often, our roadways do not become safer like have certain signs placed or guard rails installed on streets until someone is hurt. And, it’s because it costs money to prevent the damage or injury in the first place. This is highly analogues to most things that humanity does, and Cybersecurity is not different. Basically, those that can fix or prevent cyber breaches most likely will not do so until the time comes that the cost of ignoring a problem area becomes more expensive than not ignoring it.

For example, Facebook has come under significant scrutiny in recent history. The founder of Facebook was hauled before Congress to provide information. After the hearing, Facebook was directed to better protect its users information. Facebook was fully well and content with allowing user information to go willy nilly to anyone who could infringe on an individuals account. Only until congress chastised its CEO did the company begin to protect its users and even now, it still has a long way to go.

Current International Negotiations

  1. Currently

International law surrounding Cyber Security is still developing. The specifics of what the international community finds acceptable and unacceptable is highly ambiguous. The United States implementation of the Computer Fraud and Abuse Act should be used as a basis for the International law moving forward. Though the CFAA would most likely find a dilution if the International Community ever took it into consideration.

The CFAA is a direct application of what should be the international norm. Though it is not even enforced in the U.S. mainly because that would cause a significant use of resources to enforce and those that would be enforcing it would also probably be held liable to it for breaking the law for their own actions. This is because that the CFAA essentially says you cannot use an electronic device in a way that was not intended. This is super expansive and can quickly be tailored to whatever political power is in place at the time of enforcement.

When a law can be subjectively applied and not objectively enforced, it erodes its authority in general. Where someone might say that it is ok to use the computer to look up inappropriate photos, the producer of the computer would most likely say that it was not an intended use for the electronic device. This could leave a significant number of people open to liability for violating the CFAA. What should be the goal is for people seek Christian Values. Few if any producers of electronic devices intended from their devices to be used for abuse, harassment or warfare.

The Chinese are certainly an exception to that this rule. The Chinese company Huawei was surreptitiously creating an access point for the Chinese military to impede the civil liberties of the American Citizen. Huawei is a cell phone and computer manufacture in China. Their products are or were highly popular in America. Huawei was building their cellphones and electronic devices with a “backdoor” in their programing or hardware so that Chinese officials could access the phones remotely, whenever they wanted to.

This is equivalent to secretly bugging ever electronic device they produced, which was millions of units. Huawei did this and then shipped their products across the ocean for the American consumer to unwittingly have in their home. This is most certain an act in preparation for war. Spying is spying anyway you look at it. The Chinese have shown time and time again that they are collecting massive amounts of data on every American citizen. The only purpose of this is to implement control. There really is not any other reason other then they are preparing for some sort of bad action.

The Russians are essentially doing the same thing just in a different way. During the Obama administration, President Obama labeled several Russian foreigners “persona non grata,” and gave them a short amount of time to leave the country. These Russian nationals who were in the United States for what they presented as diplomatic purposes, they were actually in the U.S. for devious purposes. They were here to affect cyber security in the United States or insecurity we should say. The Obama Administration must be commended along with the State Department for swiftly discharging these individuals from the country. The security of the United States infrastructure, sovereignty and daily life of its citizens must not be infringed upon.

The Russians that Obama discharged “persona non grata” influenced, through the use of social media and the internet, the United States 2016 electoral process. This is a scary assertion. That a foreign power would seek to sway the minds of American Citizens electing leaders. Who the American people elect often has a direct effect on when the U.S. goes to war. What international financial deals are made and just about everything in our daily life. If a foreign power is seeking to influences elections through the use of cyber war, this can have systemic effects on the development of a country.

The United Nations is attempting to address extraterritorial surveillance and internet defamation.[35] The United Nations attempts to address the issue have fallen short of the action needed. The largest problem is a few select bad state actors exploiting wholes in the system that are not apparent until they are exploited. The U.N. condemn extraterritorial surveillance, essentially what China and Russia are doing constantly. Numerous resolutions have been passed but it only changes the guise of these countries’ activities not the aim.

  1. Looking forward

With the Russia-Ukrainian war raging onward, the aspect of cyberwarfare has come to the forefront of international discussion. Russia and the west are continually engaged in cyber warfare. The cost of which is tolling daily. With the increase in the cost of Cyber Security there comes a diversion of assets that could be used for more humanitarian agendas. Combating a cyber war like all war is expensive in both human life and monetary assets.

China is also a significant threat to the peace and security of the United States. The with the recent provocations and political posturing of the current politicians in power in the U.S. conflict appears to be closer then ever before. Recently, U.S. political leaders have been traveling to Taiwan, a disputed island in the South China Sea.

China has asserted before that as long as the rest of the world stays out of the issues Taiwan and China have, no conflict would ensue. However, that seems to have changed. Political leaders in the last few months have been making several trips to Taiwan Island in what appears to be an effort to “poke the bear.” China has responded with cyber-attacks. Chinese hackers were even hacking billboards in Taiwan spewing propaganda about the U.S. politicians visit. China certainly sees these visits as a threat to their security. But in all reality, if Kim Jung Un visited Cuba, the U.S. would not be excited about it.

Conclusion

International Law has a long way to go on the issue of Cyber Security. Bad actors continually exploit loopholes and governments dissociative indifference to their own citizens human rights must be addressed. If the international community could follow the lead of the Greeks on the human right to privacy and implement international agreements on state sponsored cyber attacks we would see a much better future. There will always be bad private actors, that is just part of humanity, there will always be outliers of ridiculousness. Criminals will only go away when we are able to lead them off at the pass or stop them before they even get started. Ransome ware is something that will be extremely difficult to fully destroy.

However, bad state actors are something that we can alleviate through diplomacy. The precedent has already been set, through example international agreements like the nuclear non-proliferation agreement. If everyone could get on the same page and stop the cycle of attributing assets to an endless cyber war then assets could be designated elsewhere, like space-x.

Humanity’s assertion of Christian Values and international diplomacy will see a future that is not so ripe with economic waste and deprivation of human dignity related to cyber security. “There is neither Jew nor Greek, there is neither slave nor free, there is no male and female, for you are all one in Christ Jesus.”[36] “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought.”[37] -U.S. Supreme Court Chief Justice John Roberts

[1] Matthew 7:12 (King James)

[2] Karen Guttieri, Accelerate Change or Lose The Information War, 1 J. Stra. Air. Space 92 (2022)

[3] Joseph N. Madubuike-Ekwe, J. N. (2021) Cyberattack and the Use of Force in International Law. Beijing Law Review, 12, 631-649.

[4] Id. at 637

[5] Michael P. Scharf & Paul R. Williams, The Law of International Organizations 1120 (2013

[6] Id. at 635

[7] Norrin M. Ripsman and Jack S. Levy, Wishful Thinking or Buying Time?, International Security Vol. 33, No. 2 (Fall, 2008) pp. 148-181

[8] Ronald Higgins, Weapons of Mass Destruction: Rhetoric and Realities, Connections Vol. 2, No. 1 (March 2003) pp. 59-68

[9] Gregg Zoroya, Whatever happened to Iraq’s Weapons of Mass Destruction? Ask USA Today, February 14, 2019

[10] Id. at 97

[11] Id.

[12] Michael P. Scharf & Paul R. Williams, The Law of International Organizations 334 (2013)

[13] Heidi Boghosian, The Business of Surveillance, Human Rights Vol. 39, No. 3, PRIVACY Who Is Watching? (March 2013), pp. 2-5, 23 (5 pages)

[14] Stan Lee, Spider-Man (2002)

[15] Supra note 8 at 314

[16] Supra note 8 at 335

[17] Bollea v. Gawker Media, LLC, Case No. 8:12-cv-02348-T-27TBM (M.D. Fla. Nov. 13, 2012)

[18] Id. at 96

[19] Hon. Amy J. St. Eve & Michael A. Zuckerman, Ensuring An Impartial Jury, 11 Duke L. Tech R. 12 (2012)

[20] William Turton, Abusive partners are now tracking their spouses with apps made to watch their kids, Vice News, September 16, 2018, https://www.vice.com/en/article/ev7n44/abusive-partners-are-now-tracking-their-spouses-with-apps-made-to-watch-their-kids

[21] Molly Eichten, Survey of Computer Fraud and Abuse Act Cases, The Business Lawyer Vol. 67, No. 1 (November 2011)

[22] GANGULY, SUMIT. United Nations Resolution on the Right to Privacy in the Digital Age, Snowden Reader, Indiana University Press, 2015, pp. 313–16. JSTOR, http://www.jstor.org/stable/j.ctt16gh840.47. Accessed 13 Aug. 2022.

[23] Id. at 314

[24] Scott J. Shackelford, Inside the Drive for Cyber Peace: Unpacking Implications for Practitioners and Policymakers, 21 U.C. Davis Bus. L.J. 285, (Spring, 2021)

[25] Proverbs 4:23 (King James)

[26] Id. at 308

[27] Id. at 313

[28] Supra note 8, at 63

[29] Id. at 295

[30] Ngaire Woods, What the Mighty Miss, The Blind Spots of Power, (July/August 2022) https://www.foreignaffairs.com/articles/russian-federation/2022-06-21/what-mighty-miss

[31] Supra Note 11 at 947

[32] Matthew 7:22-23 (King James)

[33] Supra note 11 at 191

[34] Supra note 11, at 287.

[35] Anupam Chander & Molly Land, Introductory Note to United Nations General Assembly Resolution on the Right to Privacy in the Digital Age, Int. Legal. Materials, Vol. 53, No. 4 (2014) pp. 727-731

[36] Galatians 3:28 (King James)

[37] Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 189 L. Ed. 2d 430, 2014

Human Rights Lawyer

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100 Tradewynd Dr. Lynchburg, VA 24502

Tort Law and The Economics of Sovereign Immunity[1]

I hate and detest falsehood but I love your law.”[2] We need a return to the biblical law standard and the older common law approach to tort law. This is because the economic impact of fraudulent local prosecutors would be held in check. Where “there is a set standard of conduct, and the Court looks at the facts of the case, determines whether the facts of the case meet or fall short of the standard, and based upon that determination decides liability.”[3]

Tort law is implicated through the doctrine of sovereign immunity. When our nations prosecutors engage in frauds on the court, the should incure Tortious liability. It is a tort against the falsely accused, the innocent. The economic damages are insurmountable, but those in power deny that.

The current law and economic approach is instead focused upon setting a rule that will minimize incidents in the future.[4] At first glance this seems like a great idea, but upon implimentation, the authorities are prosecuting innocent people. Not just innocent, blantatly innocent, obviously independantly proven innocent. What it has resulted in is total unaccountability for state actors. Really, what we should be asking is what is the truth and pursuing that. That is not what is happening in our government today, it is a “might makes right” agenda and bulldoze people that we are just exercising a “we don’t like” analysis. The is the current state of federal, state and local justice departments. Personally, I think God is going to serve them with what they got coming soon enough. God only allows injustice to go forward for a limited time, and then the rubber band snaps back.

There Must Be Limits To Absolute Prosecutorial Immunity

“The current system of absolute prosecutorial immunity fails when prosecutors fail to “seek Justice before victory.”[5] For this reason the Court must reexamine the doctrine of absolute prosecutorial immunity.”[6] Arbitrary government decisions by those charged with fair enforcement of the law is a violation of the law. “To permit criminal prosecutions to be initiated on the basis of arbitrary or irrational factors would be to transform the prosecutorial function from, one protecting the public interest through impartial enforcement of the rule of law to one permitting the exercise of prosecutorial power based on personal or political bias."[7] Governments routinely charge based on arbitrary government decision making. In recent years this is certainly true. This is a foundational affront to the rule of law.

Throughout this brief, I find it is extremely difficult to refer to Virginia prosecutors as “Commonwealth Attorneys” because that is not what they are. The basis of the proceedings against a number of accused citizens were not for the good Commonwealth of Virginia, but were based on personal bias and not a fair enforcement of the law. As we sit here in the United States, where Law enforcement and political agenda meet, there is dark underbelly of corruption.

The economic impact of false persecutions are so huge they cannot be over stated. The torts of defamation, malicious prosecution, intentional infliction of emotional distress and false arrest. This conduct can have lifelong economic impact. The system has to change, the state actors must be held accountable for their own actions.

Arbitrary Government Decision Making

A prosecutor acting contrary to seeking justice and instead pursues arbitrary government decision making sees prosecutorial discretion that is “ill-served by granting [absolute immunity] it in cases when [a prosecutor] acts without colorable authority.”[8].  As it sits today, when applied to the conduct of Commonwealth Attorney’s offices, the doctrine of absolute prosecutorial immunity, does not serve the interests of justice. To the contrary, it only serves as permission for prosecutors to conduct themselves however they want. Acting without any regard to the law and foundationally contrary to the pursuit of justice, all while facing zero accountability for their actions.

There must be a civil remedy

Holding prosecutors civilly liable for their dishonorable, unethical and outright fraudulent conduct on this nations courts and citizens must not be permitted. When absolute prosecutorial immunity was established, fraud on the court was not in the minds of those creating the doctrine. Because it was unimaginable that those entrusted with fair enforcement of the law, and serving the community would conduct themselves in a manner in which this nations prosecutors do. Absolute Prosecutorial immunity never considered that prosecutors would exercise their extraordinary power without doing so judiciously, in the pursuit of justice.

Absolute prosecutorial immunity has evolved into a zero accountability systematic “get out of jail free card” to conduct a fraud on the U.S. Court system and deprive U.S. Citizens of their Constitutional, Biblical and International Human Rights. Absolute Immunity provides prosecutors with zero accountability for their conduct. Prosecutors have displayed numerous times throughout their proceedings that they do not conduct themselves objectively that instead they exercise a “I don’t like this person” analysis and therefore I should put them in prison based on utterly unfounded accusations. The number of people exonerated from death row because of irrefutable DNA evidence is an undeniable fact that prosecutors get it wrong.

When we speak about the economic impact of falsely imprisoning someone, we must consider the billions of dollars this is likely affecting. In the United States we live in a mass incarceration society. We imprison more people per capita then any other developed nation on this planet. Even if it’s a fraction of a percent of them that are innocent, that number would be in the thousands. This is also know as billions in economic impact.

Systemic Abuse and Change

Currently, there is a premium on winning as opposed to pursuing a just result. Prosecutors are evaluated, not based on their measure and good judgment in the pursuit of justice, but on “winning” (convictions). This is an affront to the foundation of jurisprudence and the Oath every attorney takes before being admitted to the bar. Prosecutors are permitted to not point to evidence in frauds on the court, they seek to foundationally undermine the law. This has often led to absurd circus's in the court system.

One in six reversed capital cases was the result of “prosecutorial suppression of evidence that the defendant is innocent.”[9] Read that last sentence again and then pray to God about what you “thought” you knew before you read this. Prosecutors seek to have exculpatory evidence of their own experts excluded from trial. Prosecutors lie right to Judge’s faces about evidence they have been shown in previous hearings, and ignore digital prima facie evidence that entire proceedings are a sham.

Endless U.S. Constitutional and Human Rights Violations.

A prosecutor’s job creates multiple moments of power and authority over a life-changing process, and with zero accountability and no incentive to pursue justice, the system has become rot with abuse of power. Prosecutors may even seek to delay a trial for the unjust purpose of their own personal bias or prejudice.[10] Prosecutors seek to delay trials for no other purpose then to submit pain and suffering of a continued persecution on their victims.

Where defendants seek to get the quickest trial date available, prosecutors force delay after delay after delay. Not for the purpose of just proceedings but for the sole purpose of infliction of emotional distress on the defendants and their families. The fact that they have no accountability whatsoever for Their actions and our elected officials dissociative indifference to the conduct of their subordinates will only see a deprecation to the good community. This is a human rights violation.[11]

Using Perjured Testimony

Prosecutors use absolute immunity to “knowingly use perjured testimony.”[12] Prosecutors blatantly ignore their own investigator testifying that false accusers commit perjury. Prosecutors will also make impermissible remarks or attempts to introduce improper evidence at trial.[13] Prosecutors purposefully and in an effort to undermine direct Court Orders by Judge’s not to refer to a previous hearings because of the improper prejudicial nature do so while cross-examining defendants in front of the Jury. This is a crime in and of itself.

Government Transparency

One thing is certain is that our government even the local government should be dismantled and carefully put back together. As it sits, a defendant can request that the whole trial be videotaped so that the public can know what an absolute fraud on the Court even Bethany Harrison of the Lynchburg City Prosecutors office will allow. But the judges can still deny that request. Fact is people in power want you to take the sodomy they dish out and if they are wrong they want no accountability for that. One of the few protections we have in this country is public hearings.

In Lynchburg City and all courts, you should be allowed to video tape a proceeding. Otherwise people that are false accusers will get away with their lies. Prosecutors can act insane with no accountability and when its time for a falsely accused to get their life back. Potential employment will no longer be available because whole thing was absolutely nonsense but there is no way to show it on video. In today's modern era, Court hearings must be recorded on video.

The economic impact of this knows no bounds. If the public does not know the particularities of everything surrounding what our local Lynchburg City Prosecutors office will do, they will destroy the well-built Law Firm of the falsely accused. Where before the authorities conducted their unwarranted sodomy a falsely accused had a productive law firm with economical viability, now its destroyed and no one cares.

Zero Accountability for Prosecutorial Misconduct

Alternative checks on a prosecutor’s power is almost never effective and certainly not a conduct changing deterrent. As it sits, internal office discipline is the only real redress a defendant can hope for. This is almost never effective as a deterrent to what really amounts to criminal conduct of a prosecutor themselves. If any other lawyer acted in a way that our country’s prosecutors do, and not been a prosecutor, they would have been brought before the Bar and at a minimum civilly sued.

Electoral Process

The only real check on prosecutors misconduct is the prospect of losing an election, however this provides little to no deterrent to a prosecutor determined to violate a defendants’ U.S. Constitutional, Biblical and International Human rights. Most of the time voters do not even know who the Constitutional violating prosecutors are as their conduct is often suppressed or not made abundantly aware to the public until years later. And, this is certainly so in a small professional community of personal relationships between attorneys in a smaller locality. This environment makes it less likely that misconduct and fraud on the Court will be reported by neutral parties.

“Forty-five of the fifty states elect their chief local prosecutors. But in these elections, most prosecutors run unopposed. When the incumbent prosecutor runs for reelection, he or she is often the only candidate in the election. According to one study, eighty-five percent of incumbent prosecutors run unopposed in general elections. And, when they are opposed, prosecutors win their elections in nearly seventy percent of those races.”[14] The errors of a prosecutor acting without good faith can have disastrous and extreme affects on a defendants future, family’s and communities with generally no accountability.

“Prosecutors can engage in unequivocal misconduct—misconduct that is labeled as such by a federal court judge—and face no professional or criminal comeuppance.”[15] “The prosecutrix further abused her power by using the very situation she had created against the defendant in closing argument.”[16] Prosecutors abuse their power and oath to seek justice. Elected prosecutor Bethany Harrison exercises arbitrary government decision making that is a selective enforcement of the law. Bethany Harrison’s Office subverts basic U.S. Constitutional, foundations of jurisprudence, Biblical and International Human Rights law.

Prosecutors undermine the system, violate obvious rules without sanction and abuse power with no repercussions. Prosecutorial immunity must be limited. “Absolute Immunity leaves the genuinely wronged defendant without civil redress even against an indisputably and identified malicious or dishonest action that deprives him of liberty, dignity and protection of law.”[17]

Absolute Prosecutorial Immunity as a policy is misguided.

“[T]he common law recognized a fundamental ‘distinction between unauthorized acts and discretionary acts,’” with resulting “‘strict liability for acting outside of the authority enumerated by the Constitution.’[18] The Court must reevaluate prosecutorial immunity. We must return to the Common Law that held prosecutors liable for actions that exceeded the authority of their office.

Christian Worldview

What we must consider when evaluating Absolute Prosecutorial Immunity is that there are few individuals in our society that have no accountability for their conduct. That has created a license to do whatever you want and disregard the rights of others. All while basing your conduct on personal bias. This has maculated into a “might makes right” system, while trampling the rights of the falsely accused. That is not the purpose of the Immunity Doctrine, but that is what it has evolved into.

Lynchburg, Virginia

Ultimately, Bethany Harrison’s office, is a human rights violating office. What we need is someone similar to Jim Durkin. “Ill never be accused of being soft on crime, but I’m more interested in seeking the truth than a conviction.”—Jim Durkin (Illinois House Minority Leader) [19] The truth should be sought before the government is allowed to just sodomize an accused finances, future, employment, and most importantly the sanity of their family. As it sits, if the accused is not of the radical alt-left mind virus that has infested the Downtown Lynchburg Virginia authorities, it must be justified.

Citations

[1]Anilao v. Spota, No. 22-539 (2022)(the following essay has been written with various points of law that the amicus brief from of law enforcement action partnership)

[2]Psalms 119:163 (King James)

[3]Chrisman, Law & Economics, 75 (2016)

[4]Id.

[5]Miller v. United States, 14 A.3d 1094, 1107 (D.C. 2011)

[6]Anilao v. Spota, No. 22-539 (2022)(Amicus Brief)

[7]United States v. Torquato, 602 F.2d 564, 568 (3d Cir. 1979)

[8]Snell v. Tunnell, 920 F.2d 673, 696 (10th Cir. 1990)

[9]David Keenan, Deborah Jane Cooper, David Lebowitz, & Tamar Lerer, The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 YALE L. J. 203, 209–11 (2011)

[10]Brady v. Maryland, 373 U.S. 83 (1963)

[11]Universal Declaration of Human Rights, December 10, 1948 ,United Nations General Assembly Resolution 217 A.

[12]Mooney v. Holohan, 294 U.S. 103, 112 (1935); Alcorta v. Texas, 355 U.S. 28, 31–32 (1957); Napue v. Illinois, 360 U.S. 264 (1959)

[13]Griffin v. California, 380 U.S. 609 (1965)

[14]National Study of Prosecutor Elections, The Prosecutors and Politics Project, U. N.C. (February 2020), at 4, available at: https://law.unc.edu/wp-content/uploads/2020/01/National-Study Prosecutor-Elections-2020.pdf; Ronald Wright, How Prosecutorial Elections Fail Us, 6 OHIO STATE JOURNAL OF CRIMINAL LAW 581, 593–94 (2009); Anilao v. Spota, No. 22-539 (2022)(Amicus Brief)

[15]Id.

[16]United States v. Golding, 168 F.3d 700, 703 (4th Cir. 1999)

[17]Imbler v. Pachtman, 424 U.S. 409 (1976); Anilao v. Spota, No. 22-539 (2022)(Amicus Brief)

[18]William Baude, Is Quasi-Judicial Immunity Qualified Immunity?, 74 STAN. L. REV. ONLINE 115, 123 (2022).

[19]Justin Brooks, “You May Go to Prison, Even Though You’re Innocent,” 83 (2023)

Criminal Justice Attorney

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube InstagramFacebookTwitterLinkedIn, Tumblr, BloggerReddit, YelpAvvo and Justia.

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

Introduction

Programs of restitution by offenders to their victims should be instituted on a wide scale as the primary means of dealing with non-violent criminal behavior. Charles Colson and Daniel Benson address the issue of how to treat convicted persons and their victims.[1] There are two primary rules or assertions that are addressed in their essay Restitution v. Imprisonment.[2] Basically, restitution is an act making the victim of a crime whole again. Often, this means a payment of monetary value to the victim for a crime that was done to them. In contrast, imprisonment is the warehousing of persons convicted of crimes. Frequently this means cages, concrete, and guards. If you have been charged with a crime, you should call me. I am a Criminal Justice Lawyer.

Imprisonment

Currently, there are over 2,000,000 people locked up in the United States of America’s mass incarceration system.[3] This is costing the U.S. taxpayer billions. Imprisonment represents a legitimate way to place violent persons away from society for the safety of society. Imprisonment has evolved into a systematic tool of oppression far from what should be permitted ethically. Violent offenders should be imprisoned, this would follow the Christian Worldview, “whoever kills any man shall surely be put to death.”[4] 

I am heavily persuaded that restitution is a more equitable avenue for non-violent criminal offenses. Placing the victims of non-violent crime in better position then what they had been in prior to the perpetration which had come upon them would serve society. Though, there must be a limit to that in the since of recidivism, which at a certain point should lead to imprisonment. The effects on the community however, of imprisoning individuals for non-violent crimes is not wholly justified.[5] Recidivism represents half of all prisoners.[6]

Restitution

Restitution is a far better choice for both perpetrators and victims of non-violent crime. Certainly, restitution would also be a better choice for the American taxpayer.[7] Paying back the victim of a crime would entail the need for a mechanism to deal with that sort of redesignation of the penal system. A way for the perpetrator to meaningfully pay back the victims. This follows the Christian Worldview, “if a man steals an ox or a sheep and slaughters it or sells is, he shall restore five oxen for an ox and four sheep for a sheep.”[8]

A major issue with criminals who commit non-violent crimes like theft is that they would not have the money to pay back the victim of their crime. For example, Bernie Madoff whom stole vast sums of money from his victims spent a large amount of that money and now the money is gone, unable to be recompensed to the victims. Another example would be shoplifting, if someone stole from the grocery store, it is probably because they did not have the money to buy food in the first place. Therefore, as in both examples it would be difficult to obtain restitution from a perpetrator.

Conclusion

Charles Colson and Daniel Benson grapple with the conundrum of which is better for society and for the victims of crimes. The instillment of apprehension to commit crimes and the assured knowledge of confinement. Or, the focus of putting the victim in better position then they where in prior to the crime. Both have their advantages and disadvantages. For non-violent crimes, restitution is most likely the better option and, this is congruent with the Biblical Christian Worldview. If you have been charged with a crime you should call a criminal justice lawyer.

[1] Herbert W. Titus, God, Man, and Law: The Biblical Principles 279 (1994)

[2] Id.

[3] Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2022 (March 14, 2022) at https://www.prisonpolicy.org/reports/pie2022.html

[4] Leviticus 24:17 (King James)

[5] Murray, Joseph, and David P. Farrington. The Effects of Parental Imprisonment on Children, Crime and Justice 37, no. 1 (2008): 133–206. https://doi.org/10.1086/520070.

[6] Benecchi, Liz, Recidivism Imprisons American Progress, (August 8, 2021) at https://harvardpolitics.com/recidivism-american-progress/

[7] Supra Note 1 at 280

[8] Exodus 22:1 (King James)

Criminal Justice Lawyer

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube InstagramFacebookTwitterLinkedInTumblrBloggerRedditYelpAvvo and Justia.

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

Integrative Legal Theory: Human Rights

In Professor Berman's Book Faith and Order, The Reconciliation of Law and Religion he details that natural law, legal positivism, and historical jurisprudence should be integrated. And, that this integration should guide the development of law. Also, It should be noted that this article is primarily from a class I took with Professor Lindevaldsen at Liberty University School of Law.

Integration of Legal Theory:

“All that needs to be subtracted from each of the three major schools of jurisprudence [Positivism, Naturalism, Historicism], in order to integrate them, is its assertion of its own supremacy,” essentially working together.[1]  Correspondingly, to say “that we are at the end of one era and at the beginning of another,” I believe is a correct assertion. [2] Unfortunately, those enforcing the law have always had their bad apples. What we are coming into today is an entirely different legal analysis. It is a deviation from the biblical standard and needs to be course corrected.

Today:

Accordingly, a Contemporary legal issue in the United States, is the decision to not be a part of the International Criminal Court or only selectively adopt parts of the United Nations laws.[3] Certainly, integrative Jurisprudence is primary to understanding this assertion and the cornerstone to it. Because as humanity evolves, a world order is bound to come to power, that has been our lineage.

Empires rise and fall and, each time a new millennium comes, the empires that rise to power are ever so much larger than in previous history. Though it is looking like the United Nations will be a dominate world order, a substantial world war could quickly change that, just like what happened to the League of Nations. Consequently, for this “world law” to work Positivism (making, interpreting, and applying law) must be considered with Naturalism (morality, justice) and those can only properly formulate our future through an understanding and application of Historicism (using the past to develop the future).[4]

Human Rights:

Historical experiences of the community must be taken into account when considering human rights covenants.[5] “The Golden Rule-which is the rule of equality, to treat all others with equal respect…” is really the basis of a lot of our laws and the legal system in general, it is at the basis of positivism, naturalism and what developed as historicism.[6] And, each of the schools of theory must be used, to dismiss one and only use the others would be a to enact a prejudice.

Biblical Standard:

These theory’s fall well within the Christian Biblical Worldview. The Golden Rule is almost verbatim repeated in scripture. For example, “And as you wish that others would do to you, do so to them.” Also, “So whatever you wish that others would do to you, do also to them, for this is the Law and the Prophets.” Furthermore, “Let each of you look not only to his own interests, but also to the interests of others.” My personal Favorite is “Be kind to one another, tenderhearted, forgiving one another, as God in Christ forgave you.”[7]

All of the foregoing pertains to the International Criminal Court and the International Court of Justice because, how can the United States(the most powerful country in the world) expect other nations to respect the United Nations yet exclude itself from its primary judiciary branch? The ethical standard for attorneys is also different under international law. The standard is higher then the current practice within the United States.

[1] Harold J. Berman, Faith and Order, The Reconciliation of Law and Religion p.310 (John Witte, Jr. 1993).

[2] Id. at 309

[3] Thomas W. McShane, THE UNITED STATES AND THE INTERNATIONAL CRIMINAL COURT, U. S. ARMY WAR COLLEGE GUIDE TO NATIONAL SECURITY ISSUES, Strategic Studies Institute, US Army War College, pp.245–64 (2012).

[4] Berman, supra note 1, at 283

[5] Id. at 282

[6] Id. at 285

[7] Luke 6:31 (King James); Matthew 7:12 (King James); Philippians 2:4 (King James); Ephesians 4:32 (King James).

Human Rights Attorney

Chris White Lawyer, LLC. is a Lynchburg, Virginia Law Firm. Available for consultations in person, via Facetime, Skype, Zoom or phone (434) 660-9701. Please also check out my practice areas in Criminal Defense Attorney and Car Accident Lawyer. At my Law Firm we focus on the best result for the client. To stay connected I have a Youtube , InstagramFacebookTwitter, LinkedInTumblr, BloggerRedditYelpAvvo and Justia.

Chris White lawyer, LLC

Cellphone: (434) 660-9701

Available with appointment (434) 660-9701:

700 12th St, Lynchburg, VA 24504

Available with appointment (434) 660-9701:

100 Tradewynd Dr. Lynchburg, VA 24502

Car Accident Lawyer

Automatic Disclosure of “Mugshots,” A Blatant Due Process Violation

 

Introduction

 

We have come to live in a society based on insults, on lies and on things that just aren’t true. It creates an environment where deranged people feel empowered.”[1] Corruption, injustice and utter disregard for some of the most basic human rights is continually infringed upon by federal, state and local law enforcement. Law enforcement fosters disrespect for themselves through this practice. I just pray that this stops before there is another Brian Banks.[2]  Or, on the other hand, the system produces another O.J. Simpson result.[3]

“Publishing mugshots before suspects have been tried undermines a sacred tenet of American jurisprudence.”[4] The automatic disclosure of mugshots is a U.S. Constitutional Due Process Clause violation and therefore unconstitutional. Booking photos are more commonly known as “mugshots.” They are the photograph taken during the intake process of arrestees by law enforcement. Upon arrest, most state governments immediately release mugshots on the internet. The U.S. federal government no longer releases mugshots of arrestees unless, there are extenuating circumstances (i.e. fugitive from justice) because they are “the vulnerable and embarrassing moments immediately after [an individual is] accused, taken into custody, and deprived of most liberties and fit squarely within this realm of embarrassing and humiliating information.”[5]

  1. The Background of “Mugshots”
    1. Legitimate purposes:

Whenever the government seeks to impose its power or interfere in the lives of citizens, it

must do so within the bounds of the U.S. Constitution, and that requires laws be “rationally related to legitimate government interests.”[6] Objectively, it is a legitimate government interest for the authorities to take a mugshot during the intake process of an arrestee. The sole purpose of which must be for release if an accused absconds or is generally a fugitive from justice. There is no other legitimate state purpose in the pre-hearing release of mugshots, none. To the contrary, in a charge anyone for anything without even basic probable cause atmosphere, the prehearing release of mugshots only serves an abhorrent agenda or equally as worse the local incompetent law enforcement officer.

If there is a conviction and the nature of the charge warrants notice to the public, then it would be a legitimate state interest to release a mugshot after the conviction, but not before![7] However, this still does not objectively sanction the pre-hearing release of mugshots. Notice to the public must also serve a legitimate state purpose in that the notice should be for the purpose of preventing recidivism.

  1. Illegitimate purposes:

The illegitimate purposes related to the pre-hearing release of mugshots is insurmountable

and undeniable. Today, there are people working within our government that would utilize their  entrusted power to harass their political opponents for no other reason than opinions. Not the law, and do so in the most unethical, unprofessional and generally underhanded ways.[8] What is immensely important with that assertion is that there really is no legitimate state purpose in the pre-hearing release of mugshots because the motives of authorities in our nation is not always legitimate, and has amounted to nothing short of an abuse of power on numerous occasions.[9]

Police arrested 3,621,299 people in 2020 according to the Federal Bureau of Investigation.[10] Unfortunately, the FBI does not track through the Uniform Crime Report the number of citizens that have been arrested, but not convicted. Because, that would be a true demonstrator of the economic impact of these unconstitutional pre-hearing disclosures. This seems convenient as a self-serving law enforcement funding inducer, of turning a blind eye to the inaccuracies of law enforcement conduct. The more credibility that is provided to law enforcement, the more non-allocated funding law enforcement will agencies receive. Where funding allocation towards accuracy in their official conduct should prevail, instead they spend on militarizing and firearm wielding robots.[11]

  1. Damages:

The definition of “what damages are?” related to mugshots can be straightforward and at the same time, elusive.[12] The real question of damages must be a question placed to a jury.[13] The Supreme Court of the United States has examined damages in multiple defamation suits and, as part of that analysis utilizes all of the facts and circumstances surrounding a case. For example, the application of a “malice standard.”[14] If an official state actor, like a law enforcement officer, is acting without diligence or worse under unapplicable political motivation or gross incompetence there is malice.

In any event, the pre-hearing release of mugshots really amounts to an extreme defamation by state governments. The monetary economic damages of which are astronomical. Most employers do a background check of some sort on new employees. Or, at least a quick internet search. If a mugshot of a potential employee pops up regardless of innocence, they are less likely to get hired. That fact is undeniable. For that sole purpose, there serves little legitimate argument that there is no “government taking” when there is a pre-hearing release of a mugshot. A “government taking,” is what triggers the right to Constitutional Due Process.[15]

Affecting someone’s employment prospects is certainly a matter the Supreme Court of the United States has recognized as a Constitutional Right.[16] Because, it is not the governments place to take from citizens without a hearing. Government taking without an opportunity to be heard, is a general usurpation of the Declaration of Independence, the Due Process Clause of the Fourteenth Amendment and the Universal Declaration of Human Rights.

  1. Freedom of Information Act (FOIA)

Legislatures rest their analysis on the reasoning of government transparency as to why a prehearing release of mugshots is warranted. However, this is a false analysis, because mugshots are minimally related to the government conduct at the center of FOIA’s reasoning. FOIA was enacted to shed light on government conduct not to harass the natural born United States Citizen.

  1. Background of FOIA:

The Freedom of Information Act was enacted so that concerned citizens could monitor government conduct. Previous to FOIA government agencies had a tendency not to disclose requested information to the public.[17] The Freedom of Information Act was meant to change that. Upon the enactment of FOIA, state legislatures followed suit and some had already enacted their own form of FOIA. Unfortunately, that has resulted in a disjointed conflagration of interpretations by Federal Courts regarding FOIA and a whole separate analysis for State Courts.

FOIA has an exemption to disclosure that mentions privacy. This exemption directly, references that which would “…constitute an unwarranted invasion of personal privacy.”[18] Since the establishment of this exemption to FOIA disclosure, only one of the four Supreme Court of the United States cases have favored disclosure over non-disclosure.[19] The Court in the unfavorable non-disclosure case of Department of the Air Force v. Rose, the Court relied on the legislative history for statutory interpretation.[20]

  1. Privacy Analysis and FOIA:

The Court in World Publ’g Co. v. United States DOJ asserted that there is a test in order to determine if there is an unwarranted invasion of personal privacy in favor of non-disclosure.  “A court must (1) determine if the information was gathered for a law enforcement purpose; (2) determine whether there is a personal privacy interest at stake; and if there is (3) balance the privacy interest against the public interest in disclosure.”[21]

The first prong of this test is satisfied, for there is little dispute that mugshots are taken for a legitimate law enforcement purpose. For example, if an accused attempts to abscond, generally become a fugitive from justice or escape from custody. For those reasons a mugshot should be taken to later release to the public if the authorities need to look for someone. Therefore, it is reasonable that law enforcement take mugshots.

For the second prong of the test, the Court found that "the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information."  A “booking photo is intended for use only by a specific and small group of people—further reason for a court to protect an individual's privacy interest in that photo.”[22] Just because there is a legitimate government interest rationally related to mugshots, does not mean the government should be disclosing these mugshots publicly to just anyone for any reason automatically.

An analogy to this assertion is that in all jurisdictions a civil litigant or person of subject in litigation has a right that their social security number not be disclosed publicly, why should a mugshot be any different absent purpose and circumstance?[23] If you have a right to privacy in your social security number, a number on a piece of paper, then in what realm does logicality proffer that you have no right to privacy in a photo taken in one of the most vulnerable moments? Through very basic reason, we see that there is a foundational privacy interest.

The third and final prong of the test dictated is the balance of the first two. The Court opines that release of a mugshot:

“is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct. In this case—and presumably in the typical case in which one private citizen is seeking information about another—the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records.”[24]

In most of the cases surrounding this matter, it is the media that is the proponent of automatic disclosure. Congress did not intend for those that run the national media’s schadenfreude departments to be served by FOIA, to sully the good names of people whom may themselves be the victim of some setup, predatory act, lack of law enforcement diligence or general lie.[25] Not everyone who has had their mugshot taken has been the subject of proper cause, objective law enforcement action or general fairness and reason. Some have been the subject of a predatory act of the accuser.[26]

In sum, we see by careful examination of the case law surrounding privacy and the Freedom of Information Act, that controlling Courts recognize a legitimate privacy interest in mugshots and in favor of non-disclosure. Courts have had this issue presented to them numerous times throughout the history of FOIA and more often than not they find in favor of the individual’s privacy interest. The issue is no longer at the federal level but at the state level.

Due process is a basic requirement under the Fourteenth Amendment of the U.S. Constitution.[27] It is well founded that your name, image and likeness (a photo of you) is your property and especially if a person or entity attempts to use it for commercial purposes or if the government seeks to deprive you of your property.[28] This is true both domestically, internationally and biblically.[29] However, for the purposes of this section we will focus on the U.S. Constitution and the rights the Founders and Veterans risked everything for.

  1. Background of Due Process:

The Due Process Clause of the United States Constitution provides foundational protection against arbitrary decisions by legislatures, law enforcement and institutional injustice.[30] Due process is a basic requirement under the U.S. Constitution that “a person may not constitutionally be deprived of “life, liberty or property” by governmental action without notice and a meaningful opportunity to be heard.”[31] The following case is controlling law to determine if the Due Process Clause of the U.S. Constitution applies to a government taking.

In Mathews v. Eldridge, the court prescribes a test as to whether a matter is a Due Process violation.[32] The factors that are described by the court for due process are essential to our understanding of what due process protects. Due Process protects against erroneous deprivations by the government. The Court described the following test:

“…due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”[33]

  1. Analysis of Due Process to Mugshots:

When applying the Mathews test we look at each factor. With the first factor, it becomes clear that the private interest affected by law enforcement charging and arresting an individual; and then releasing a mugshot without a hearing is an erroneous and capricious deprivation. The systemic inherent effect on the future trajectory of a person who has had their mugshot released is obvious, and certainly so in the internet age. In other words, there is a clear taking by the government when they post these photos on the internet. For anytime something is posted on the internet, it is there in perpetuity. It is there for any future employer, associate, third party or those that would seek to defame but for the sole purpose of their own salaciousness. The first prong of the Due Process Clause test is violated, unequivocally.

Next, we turn to the Courts second factor in Mathews, which is far simpler to address. This factor, when evaluating mugshot releases, is clearly violated and requires little discussion because there is no hearing or procedure whatsoever. Currently, there is no hearing before the government releases a mugshot to the public. Unless a citizen is arrested by the Federal Government, their mugshot is released.[34] The legislature is supposed to be bound by the United States Constitution and has utterly denied and ignored this. They have achieved this by disregarding the right to cross-examine evidence in an open public court.[35]

Finally, we address the Courts last prong of the Mathews test as to whether a matter violates Due Process. The Government has no legitimate interest in the pretrial, pre-hearing release of mugshots. To the contrary, this has economic implications on those that are falsely accused and matters that are generally unfounded. Unless a person is convicted or a fugitive from justice there serves no legitimate state interest in the release of mugshots. And, let’s say hypothetically for some unclear reason that the government interest were served by releasing these mugshots. The burden of including a hearing on the matter is de minimis and could easily be addressed at the first hearing related to matters. Our judicial system in general is a slow engine, there serves no legitimate purpose in the selective outrage of expeditiously releasing mugshots as opposed to waiting for a proper hearing. In any event, the burden would not be great for courts but that’s only if you get to that prong of the test, which we do not because of the former.

  1. Analysis Competing Opinions:

The United States Supreme Court has addressed the issue of mugshot disclosure and Due Process in Paul v. Davis in 1976. In a Split decision the Court asserted that a person does not have a Due Process interest in that “The words "liberty" and "property" as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law.” [36] But, we must bear in mind that Justice Rehnquist wrote this opinion well over forty seven years ago in 1976, decades before the public use of the internet and therefore the employment effects of these acts not fully recognized as herein today. To the contrary, in 1976 TV’s were large cub boxes, most got their news from a piece of paper and phones were tied to wires.

The employment discussion is important, because today you will be looked over for employment based solely on things like internet besmirchments.[37] And, in Justice Rehnquist’s opinion he specifically cited employment as a reasonable Due Process applicable right in that the “drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment.” Today the internet is used to harass on a level not cognizable in 1976, nefarious groups can incessantly molest others through its maleficent use, and the authorities do little to curb this.[38] In 1976, it just was not the case as today.

Within Paul v. Davis, the Court specifically references cases in relation to privacy law like Roe v. Wade and other cases that the authority has since changed. The Court opines about privacy law and this is also a vital consideration because the evolution of privacy law since 1976 has been substantial.[39] The Supreme Court of the United States, over the decades has increasingly recognized privacy interest since it issued the Davis opinion.

Furthermore, three Justice’s Brennan, Marshall and White dissented in Paul v. Davis. The distinguished dissenting justices with Brennan writing, opined that “The Court accomplishes this result(depriving citizens of a right to a hearing) by excluding a person's interest in his good name and reputation from all constitutional protection, regardless of the character of or necessity for the government's actions. The result, which is demonstrably inconsistent with our prior case law and unduly restrictive in its construction of our precious Bill of Rights, is one in which I cannot concur..”[40] As with a lot of matters in the law, from time to time it becomes necessary to reexamine issues that have been presented in the past.[41] Otherwise old and generally antiquated opinions would remain in effect indefinitely.

  1. The Supremacy Clause

The U.S. Constitution, because it is the supreme law of the land has in its inherent ability and applicably the authority to invalidate state law. Because, “the court is “bound” by the statute; the legislature is “bound” by the constitution.”[42] The Court can invalidate state statutes when they are found to violate the United States Constitution.[43] This is known as judicial review. Judicial review is a tool used by courts and is a part of the basic notion of checks and balances in the government.[44] Because, when we think about our rights as U.S. citizens, we should not be thinking about one branch of government over the other. The Founders intended for each branch of government, the legislature, the executive, and the judiciary to protect our rights as U.S. Citizens.

Nothing is safe while legislature is in session and the U.S. Supreme Court understood this over two hundred years ago when it issued its opinion in Marbury v. Madison. In Marbury, the Court first established that it had the power to overturn an act of legislation when it violated the U.S. Constitution.[45]

  1. Federal Law Enforcement Standard:

After significant opposition from the media, Federal law enforcement no longer

automatically release mugshots of arrestees. Today, if you are arrested by federal law enforcement your mugshot will not be released automatically.[46] This is also true in two states, but not most.[47]

  1. Th Internet Mugshot Industry
    1. Background Criminal Liability:

Companies like Arrests.org post photos of arrested citizens on the internet and then utilize ad revenue generated by these postings “click bate” to make money. Also, they charge persons money that would like the mugshots removed.[48] This is a form of extortion, but law enforcement has failed to prosecute this except for a few circumstances.[49]

  1. Background Civil Liability:

Often, in order to instill real change civil liability must be pursued by interested parties. Because, if you do not sue tortfeasors and falsehood perpetuators, everyone else will believe that what they are doing is what is correct. Or, generally not hurting anyone and the conduct will continue. Wrongdoers must not be permitted to profit from their own wrongdoing.

  1. Analysis Defamation:

Defamation is a false statement written or spoken about another person.[50] There have been successful defamation suits against the mugshot industries publishing’s.[51] Defamation can either be libel or slander. The dissemination of Mugshots is libelous. And, certainly if an accused has been done so falsely, for as the Supreme Court has opined “Imputing criminal behavior to an individual is generally considered defamatory per se.”[52] If an individual is later exonerated for the reasons a mugshot was taken then the civil defamation liability is clear and absolute.

  1. Analysis ‘Name, Image, Likeness’/Misappropriation:

In the United States, most States and the Federal Government have laws against using another person’s photo without their permission in a trade or business. Often this is referred to as Misappropriation. In Virginia, this is § 8.01-40 or the unauthorized use of name or picture of any person, this statute also serves as criminal culpability.[53] Punitive damages are awardable under this section. The law is fairly straight forward in this area. If you do not have permission to use another person’s photo, your breaking the law and at a minimum committing a tort. At a maximum you are committing a misdemeanor. Criminal acts are prima facie torts and damages are most certainly recoverable against the culpable.

  1. Analysis Intentional Infliction of Emotional Distress:

The online mugshot industry is tortiously and continuously committing intentional infliction of emotional distress. The elements for Intentional Infliction of Emotional Distress are “(1) the wrongdoer's conduct is intentional or reckless; (2) the conduct is outrageous and intolerable; (3) the wrongful conduct and the emotional distress are causally connected; and (4) the resulting distress is severe.”[54]

Applying these elements to the internet mugshot industry is no stretch. They corner their conduct on the notion that if an accused feels enough pain they will pay to have their mugshot removed from the website. That is their business model. This is nothing short of criminal extortion and prima facie Intentional Infliction of Emotional Distress.

  1. Analysis Pursuing judgements in foreign based entities:

The internet mugshot industry has been sued more times than we can reference in this paper. For that reason, they have sought to conceal their ill-gotten gains through foreign registered entities. Currently, Arrests.org an internet mugshot company, befuddles their plunder in Saint Kitts & Nevis. Saint Kitts & Nevis is one of these shelter islands in the Caribbean. People seeking to hide their money register companies there, because if they did not, they would be sued into bankruptcy. If you want to know if a company is legitimate, look at where they keep their money. The Federal Communications Commission and the Federal Bureau of Investigation should do more to stem the impact of foreign based entities smearing citizens on American soil. This is equivalent to breaking the law and getting paid to do it.

  1. International Law[55]

 

“Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more.  Everyone is entitled to these rights, without discrimination.”[56] We must not only apply human rights internationally, they mean as much locally, with our neighbors, the people across town and throughout the nation.

In this section we will examine the applicability of international law to the automatic disclosure of mugshots. Specifically, the Universal Declaration of Human rights, right to dignity, due process and equal protection of laws. The Christian worldview is also applicable to the international law analysis, “love your neighbor as yourself.”[57]

  1. Universal Declaration of Human Rights

 

“We the Peoples of the United Nations Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.”[58] The preamble of the UDHR must apply to all generations, the ones that drafted the UDHR and in perpetuity.

  1. Analysis Article 1: Dignity

 

According to Article One of the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Article One is unequivocally violated when we examine the unreasonable and illegitimate state purpose of automatic booking photo disclosures. “If there are no constitutional restraints on such oppressive behavior, the safeguards constitutionally accorded an accused in a criminal trial are rendered a sham, and no individual can feel secure that he will not be arbitrarily singled out for similar ex parte punishment by those primarily charged with fair enforcement of the law.”[59]

  1. Analysis Article 7: Equal protection of Laws

 

According to Article Seven of the Universal Declaration of Human Rights, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”

Equality in the law means that the law must be applied similarly to all parties. A person with ill intent should not be allowed to make a claim to the authorities that logically on its face makes no sense, and then hide their own identity whilst the person they accuse has their name dragged through the mud publicly with automatic booking photo disclosures. The truth of the matter is, that our law enforcement does not always act with fair enforcement of the law and sometimes acts under their own personal biases with no protection provided to the public. For this very reason, the power to destroy a persons career through automatic booking photo disclosures must stop immediately. This also has racial discrimination implications.

“As the drafting history (of Article 7) indicates, this clause was adopted with the understanding that it protected against propaganda of national, racial and religious hostility and hatred, as well as the understanding that although Article 19 protected freedom of expression, it did not protect expression that incites discrimination.”[60] Race based discrimination is enacted with automatic mugshot releases, it creates a stereotype perpetuated for minorities.[61]

Authorities put mugshots into computers using algorithms and face recognition technology.[62] These actions perpetuate a racist system by recycling old mugshots essentially recycling the past. Thus, because minorities are more likely to be detained and have their booking photo taken, this is a racist practice because the system is racist.

  1. Analysis Article 10: Due Process

According to Article Ten of the Universal Declaration of Human Rights, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”[63]

This is highly similar if not the exact same right provided by the United States Constitution. The authorities are not to take from citizens unless they have been provided a fair hearing. “Police officials, acting in their official capacities as law enforcers, may on their own initiative and without trial constitutionally condemn innocent individuals as criminals and thereby brand them with one of the most stigmatizing and debilitating labels in our society.”[64] And, this is done in perpetuity thanks to the illegal online mugshot industry.

“The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.”[65] This applies under international law.“Observing that due process is an evolutionary concept that takes into account accepted notions of fairness, and recognizing the fundamental principle that all human beings should be free from arbitrary detention.”[66] Or, in this matter, the taking of property in perpetuity.

  1. Analysis Article 12: Privacy

According to Article Twelve of the Universal Declaration of Human Rights, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

United States Federal Courts have directly addressed this issue, and since the last time the Supreme Court of the United States has addressed this issue, the privacy analysis has changed substantially:

"In the vulnerable and embarrassing moments immediately after an individual is accused, taken into custody, and deprived of most liberties, fit squarely within this realm of embarrassing and humiliating information. More than just vivid symbols of criminal accusation, booking photos convey guilt to the viewer. Indeed, viewers so uniformly associate booking photos with guilt and criminality that we strongly disfavor showing such photos to criminal juries. The Sixth Circuit has condemned the practice of showing 'mug shot' evidence to a jury as effectively eliminating the presumption of innocence and replacing it with an unmistakable badge of criminality. This alone establishes a non-trivial privacy interest in booking photos.”[67]

Then we can easily draw the analytical chain to a multi-day jury using a basic google search to find a mugshot photo of accused persons on the internet. A mugshots mere image projects guilt on to the viewer, this is prejudicial conduct. Even without any evidentiary indication, a viewer is likely to perceive an accused as guilty even though they themselves may be the victim of a crime perpetuated by the local medically diagnosed insane person filing false police reports or law enforcement officers lack of reasonable diligence.

The international community wants states to protect individual privacy. “States are required to provide to every person the right to a judicial remedy for breach of privacy rights.”[68]  Photographs are data, it is biometric data that is yours as a human being.[69] In the U.S. a person can go and have their record expunged after a case has been found not guilty, nolle prosse or dismissed. The expungement process only has the effect of a Court file being destroyed. What it does not do, is get back the release of booking photos. The expungement remedy provided in the United States is defunct and mostly useless. Expungement solely means a Court file being destroyed, this process has limited effect.

Conclusion

Your name, image, likeness is your property. When we apply the Christian Biblical Worldview perspective to property interest, "You shall not covet your neighbor's… nor anything that is your neighbor's," it becomes clear that the Law of Nature and of Natures God, through scripture fully intended for humans not to infringe on that which is another humans.[70] To take something that is another humans without a full, fair and final hearing on a matter is not only contrary to the United States Constitution but also a direct affront to God’s law.

The scripture addresses infringement of dignity, “strength and dignity are her clothing, and she laughs at the time to come.”[71] “So God created man in his own image, in the image of God he created him; male and female he created them.”[72] God did not intend for humankind to degrade each other, and certainly not without proper cause. Let’s be clear, proper cause is not defined by  fleeting fickle current political opinion, or social media hysterical nonsense. Today’s practice of decimating a person that has not even been allowed a real opportunity to defend the accusations against them by releasing mugshots is against the Christian Biblical worldview.

So after examining the scripture related to dignity and property, God intended for humans to respect one another. The mugshot industry is contrary to that and thus contrary to God’s Law. Because, if God created humans in his image then he meant for his image through humans to be respected. Not only the property rights but also the more nuanced dignity rights. The injustice surrounding this practice is blatant. The law is not being used properly by releasing mugshots pre-hearing. This also breaks the social contract that we all have with each other and our government “the notion of agreement as the foundation of “just” or “legitimate” principles for governing society is the basis of the “social contract” tradition…” those in power are in breach of this contract.[73] Thus, accordingly this is not good law.

The United States Constitution was signed on September 17th, 1787. Since that day Jurisprudence has seen most of its protections muddled by Courts and Legislatures. We will continue our decent into tyranny controlled by those with malintent where the Constitutions basic principles mean nothing. Due Process of law is a basic principle that must not be diluted any longer. A small but at the same time significant secession from the powers that be incessant and generally cruel befuddlement of releasing their harassing photos is but little price to pay to make sure they are doing the right thing before they do it.

 

 

[1] Brett Samuels, Colin Powell: “We’ve come to live in a society based on insults, on lie,” The Hill, October, 31, 2018 at https://thehill.com/blogs/blog-briefing-room/414124-colin-powell-weve-come-to-live-in-a-society-based-on-insults-on-lies/

[2] Jason Kandel, Woman Who Falsely Accused Brian Banks of Rape Ordered to Pay $2.6M, June 15, 2013 at  https://www.nbclosangeles.com/news/local/woman-falsely-accused-brian-banks-rape-ordered-to-pay-26m/1971672/

[3] Ellie Cambridge, Joanne Kavanagh and Jennifer Roback, “Free Man” Where is O.J. Simpson now?, December 14, 2021 at https://www.the-sun.com/news/1586691/oj-simpson-who-where/

[4] Johnny McDevitt, Mugshot tabloids: defamation as the price for profitable 'schadenfreude'; Magazines access mugshots from police departments and print them for locals to see - but when they get it wrong, there are often little to no consequences. The Guardian. (September 4, 2016)

[5] Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 482

[6] Washington v. Glucksberg, 521 U.S. 702, 728 (1997)

[7] Christina Locke and Bill F. Chamberlin, Safe from Sex Offenders? Legislating Internet Publication of Sex Offender Registries, The Urban Lawyer 39, no. 1 1–18 (Winter 2007).

[8] Tom Dart, Texas Governor Rick Perry has mugshot taken after indictment, The Guardian, (August 19, 2014) at https://www.theguardian.com/world/2014/aug/20/texas-governor-rick-perry-mugshot-indictment-rosemary-lehmberg; Heather Hamilton, WATCH: Ted Cruz Praises Twitter Files, says ‘Big Tech is losing their minds,’ Washington Examiner (February 14, 2023) at https://gazette.com/news/us-world/watch-ted-cruz-praises-twitter-files-says-big-tech-is-losing-their-minds/article_bf9b6c09-8185-55fe-96b5-18fe4ded06a2.html; David Malloy, Zuckerberg tells Rogan FBI warning prompted Biden laptop story censorship, BBC News (August 26, 2022) at https://www.bbc.com/news/world-us-canada-62688532

[9] Id.

[10] FBI National Press Office, FBI Releases 2020 Incident-based (NIBRS) Data, Federal Bureau of Investigation (December 6, 2021) at https://www.fbi.gov/news/press-releases/fbi-releases-2020-incident-based-data

[11] Chris Boyette and Zoe Sottile, San Francisco supervisors vote to allow police to use robots to kill, CNN (November 30, 2022) at https://www.cnn.com/2022/11/30/us/san-francisco-police-remote-control-robots/index.html

[12] George C. Christie, Injury to Reputation and the Constitution: Confusion Amid Conflicting Approaches, Michigan L. Rev. Vol. 75 No. 1 pp. 43-67 (November 1976).

[13] Id. at 53

[14] Id. at 59

[15] Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

[16] Paul v. Davis, 424 U.S. 693 (1976)

[17] Kathryn Shephard, Mug Shot Disclosure Under FOIA: Does Privacy or Public Interest Prevail?, Northwestern Univ. L. R. Vol. 108, No. 1, 350 (2014).

[18] Id.

[19] Kathryn Shephard, Mug Shot Disclosure Under FOIA: Does Privacy or Public Interest Prevail?, Northwestern Univ. L. R. Vol. 108, No. 1, 353 (2014).

[20] Id.

[21] World Publ’g Co. v. United States DOJ, 672 F.3d 827, 2012.

[22] Id. at 828.

[23] CUS-SEP/OCT 01, pp. 48-50 and JCUS-SEP 03, pp. 15-16; Fed. R. App. P. 25(a), Fed. R. Bankr. P. 9037, Fed. R. Civ. P. 5.2, and Fed. R. Crim. P. 49.1.

[24] Supra, note 21 at 830.

[25] Belinda Palmada, Man’s life destroyed after woman falsely accused him of rape, News.com.au, (January 18, 2023) at https://www.news.com.au/world/europe/mans-life-destroyed-after-woman-falsely-accused-him-of-rape/news-story/9d5cd767fc69ab526c97d5cfd26cadc0

[26] Rachel Mahoney, Jury Finds Lynchburg Man Not Guilty Thursday, The News & Advance, (December 19, 2019); The Associated Press, After more than 70 years, 4 Black men wrongly accused of rape have been exonerated, NPR (November 22, 2021) at https://www.npr.org/2021/11/22/1058169726/groveland-four-exonerated; Cindy E. Rodriguez, Woman Who Falsely Accused Duke Lacrosse Players of Rape Charged With Stabbing Boyfriend, ABC News, (April 4, 2011) at https://abcnews.go.com/US/woman-accused-duke-lacrosse-team-members-rape-charged/story?id=13295161; Eugene J. Kanin, False Rape Allegations, Polygrah Vol. 30 Issue 3 163-171 (2001).

[27] Amendment 14, USCS Const. Amend. 14 (1868).

[28] Borger, John P., et al., RECENT DEVELOPMENTS IN MEDIA, PRIVACY, AND DEFAMATION LAW, Tort Trial & Insurance Practice Law Journal, vol. 39, no. 2 (2004)

[29] Loreto Corredoira, The Right of One’s Own Image in the Recent Cases of Sexual Harassment in Film Industry: Applying the European Theory of Concentric Circles to Celebrities (In Particular, Women), Journal of Information Policy, vol. 8, 384 (2018); Genesis 1:27 (King James)(“So God created man in his own image, in the image of God he created him; male and female he created them.”).

[30] Leonard G. Ratner, The Function of the Due Process Clause, University of Pennsylvania Law Review 116, no. 6 1048–1117 (1968).

[31] Kuckes, Niki. Civil Due Process, Criminal Due Process, pp.1-61Yale Law & Policy Review, vol. 25, no. 1, (Fall, 2006).

[32] Mathews v. Eldridge, 424 U.S. 319, 334 (1976).

[33] Id.

[34] Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 478

[35] Amendment 6, USCS Const. Amend. 6 (1791).

[36] Paul v. Davis, 424 U.S. 693 (1976).

[37] David Cotriss, Keep It Clean: Social Media Screenings Gain in Popularity, Business News Daily (January 23, 2023) at https://www.businessnewsdaily.com/2377-social-media-hiring.html

[38] Alan Dershowitz, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, (Skyhorse Publishing, 2019); Karlyn Borysenko, The Dark Side of #MeToo: What Happens When Men Are Falsely Accused, Forbes (February 12, 2020) at https://www.forbes.com/sites/karlynborysenko/2020/02/12/the-dark-side-of-metoo-what-happens-when-men-are-falsely-accused/?sh=358cc6b0864d; Bianca Lallitto, 15 Shocking Cases of Cyberbullying That Led To Suicide, The Clever (August 15, 2017) at https://www.theclever.com/15-shocking-cases-of-cyberbullying-that-led-to-suicide/

[39] Borger, John P., et al., RECENT DEVELOPMENTS IN MEDIA, PRIVACY, AND DEFAMATION LAW” Tort Trial & Insurance Practice Law Journal, vol. 39, no. 2 (2004)

[40] Paul v. Davis, 424 U.S. 693 (1976)

[41] Roe v. Wade, 410 U.S. 113 (1973); Dobbs v. Jackson Women’s Health Organization,

945 F. 3d 265

[42] Harold J. Berman, Faith and Order, The Reconciliation of Law and Religion, p.12 (John Witte, Jr. 1993).

[43] Marbury v. Madison, 5 U.S. 137 (1803)

[44] Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, The University of Chicago Law Review, vol. 61, no. 1, 123–96  (1994).

[45] Marbury v. Madison, 5 U.S. 137 (1803)

[46] Karantsalis v. United States DOJ, 635 F.3d 497, 2011; World Publ’g Co. v. United States DOJ, 672 F.3d 825, 2012; Times Picayune Publ'g. Corp. v. United States DOJ, 37 F. Supp. 2d 472, 477 (E.D. La. 1999).

[47] Hank Berrien, Oregon Prevents Release of Most Mugshots to Media, The Dailywire, (January 4, 2022)

[48] David Kravets, Mug-Shot Industry Will Dig Up Your Past Charge You to Bury It Again, Wired (August 2, 2011)

[49] Schmidt, Samantha, Owners of Mugshots.com accused of extortion: They attempted ‘to profit off of someone else’s humiliation, Washington Post (May 18, 2018) at https://www.chicagotribune.com/business/ct-biz-mugshot-website-owners-extortion-20180518-story.html

[50] § 8.01-45. Action for insulting words., Va. Code Ann. § 8.01-45 (Current through Chapter 22 of the 2022 Special Session I).

[51] Johnny McDevitt, Mugshot tabloids: defamation as the price for profitable 'schadenfreude'; Magazines access mugshots from police departments and print them for locals to see - but when they get it wrong, there are often little to no consequences. The Guardian. (September 4, 2016)

[52] Paul v. Davis, 424 U.S. 693, 697 (1976)

[53] Town & Country Properties v. Riggins, 249 Va. 387

[54] McDermott v. Reynolds, 260 Va. 98 at 101

[55] Christopher White, Automatic Booking Photo Disclosures: Dissociative Indifference to the Human Rights to Dignity, Due Process and Equality Under the Law, 6-13 (International Human Rights Law, Working Paper, May12, 2023)(The following section was predominately taken from a previous paper on the same subject but specifically international law).

[56] United Nations, Peace, Dignity and Equality on a Healthy Planet, (accessed March 9, 2023) at https://www.un.org/en/global-issues/human-rights.

[57] Mark 12:13-21 King James)

[58] Universal Declaration of Human Rights, Preamble, June 26, 1945, Stat. 1031 United Nations General Assembly.

[59] Paul v. Davis 424,  U.S. 693, 714 (1976)

[60]Stephanie Farrior Molding The Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech, 14 Berkeley J. Int'l L. 1, 14-15 (1996)

[61] Nicole R. Fleetwood, Racist Police Practices like mug shots normalize the criminalization of Black Americans, NBC, (August 6, 2020) at https://www.nbcnews.com/think/opinion/racist-police-practices-mug-shots-normalize-criminalization-black-americans-ncna1235694

[62] Kade Crockford, How is Face Recognition Surveillance Technology Racist? ACLU (June 16, 2020) at https://www.aclu.org/news/privacy-technology/how-is-face-recognition-surveillance-technology-racist

[63] Universal Declaration of Human Rights, December 10, 1948 ,United Nations General Assembly Resolution 217 A.

[64] Paul v. Davis, 424 U.S. 693, (1976) 714

[65] Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1950), 168

[66] Gordon A. Christenson, Using Human Rights Law to Inform Due Process and Equal Protection Analyses, 51 U. Cin. L. Rev. 3 (1983)

[67] Detroit Free Press, Inc. v. United States DOJ, 829 F.3d 478, 482 (6th Cir. 2016)

[68] Council Directive 95/46, 1995 O.J. (L281) 31. at http://europa.eu.int/comm/dg15/en

[69] Glenn J. Voelz, The Rise of IWar: Identity, Information, and the Individualization of Modern Warfar,. Strategic Studies Institute, US Army War College, 119 (2015).

[70] Exodus 20:17 (King James).

[71] Proverbs 31:25 (King James).

[72] Genesis 1:27 (King James).

[73]  Brian H. Bix, Jurisprudence, Theory and Context, 114 (8th ed. 2019).

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