PUNISHING THE PERSONA: CORRECTIONAL STRATEGIES FOR THE VIRTUAL OFFENDER BY RICHARD C. MACKINNON http://www.actlab.utexas.edu/~spartan GOVERNMENT DEPARTMENT IN AFFILIATION WITH THE ADVANCED COMMUNICATION TECHNOLOGIES LABORATORY (ACTLAB) THE UNIVERSITY OF TEXAS AT AUSTIN OCTOBER 10, 1996 ----------------------------------------------------- (c) Copyright To appear in S. Jones (ed) (1997) The Undernet: The Internet and the Other, Sage Press. Use or redistribution of this chapter is not permitted without negotiation with the author in whom the copyright resides. ------------------------------------------------------ ABSTRACT The development of cybersociety poses significant theoretical and socio-political challenges attributable to a social space populated by "bodyless" beings. This chapter explores the phenomenon of bodylessness and its ramifications for the criminal corrections process. In the case of a well-known virtual rape, the perpetrator's account was deleted following a meeting of the virtual community's members. This virtual execution of his online persona is rigorously analyzed to determine if punishment of virtual bodies is a suitable means for meting out virtual jurisprudence. Guided largely by Foucault's insight into non-corporal or bodyless punishment, a standard of "just adjudication" is developed to insure that the punishment fits the crime. In part, this standard directs punishment for virtual offenses primarily towards the virtual body. Accordingly, offline offenses ought to be directed primarily towards the user. To this end, a classification scheme is proposed to differentiate virtual offenses from conventional computer crimes. Three cases are examined in light of this classification and standard. They are the "rape of legba;" the University of Michigan student, Jake Baker, who was arrested and expelled for his Usenet posting of a "sex fantasy;" and Kevin Mitnick, the infamous hacker accused of committing several computer-related crimes. It is hoped that the guidelines developed herein for adjudicating computer-mediated offenses will insure that the punishment delivered is commensurate with the crime. (Approximate length: 15,000 words). INTRODUCTION What is "virtual crime" and "virtual punishment"? Intuitively, one knows the answers, but before I can tender a formal response, I need to situate the original questions in the context or place where these crimes are allegedly occurring and where proper punishments are needed to be dealt. This leads to the more preliminary question, What is cybersociety?, for it is there where these phenomena are presently under study. Steven Jones (1995) coined the term to describe the "new forms of community" and "social formations" brought about by such "wonders of technology" as computer-mediated communication (CMC). Cybersociety is the emergence of community from a complex set of social formations in a space enacted by mediating technology. In the language of popular culture it is the society within virtual reality (VR) or "cyberspace" (Gibson 1984; Benedikt 1991; Rheingold 1991, 1993). It feels odd to state this definition so matter-of- factly when it has taken CMC and "cyberculture" researchers most of the 1990's to support the claim that cybersocieties even exist (Benedikt 1991; Rheingold 1991, 1993; Reid 1991, 1995; Curtis 1992; MacKinnon 1992, 1996; Hauben 1993; Heim 1993; Derry 1994; Jones 1995). Only after these researchers were able to establish cybersociety's fundamental existence could they begin to study in-depth the nascent communities of which Jones speaks. While the researchers in this new field had the additional burden of establishing the existence of the field itself, social developments within cybersociety outpaced the researchers' collective abilities to investigate them. Cybersociety did not remain nascent for long. While it is easy to equate "nascence" with "innocence," it must be remembered that from the beginning, cybersociety was populated by adults, not infants. Once Julian Dibbell (1993) reported what came to be known as the "first rape in cyberspace," it became apparent that "innocence" was no longer descriptive of a cybersociety which had matured enough to belie certain social developments or "social formations" which could only be properly identified as sociopathy. While 1993 may be the year of the first _reported_ incident of virtual rape, it is doubtfully the year of the first incidence of "net.rape," let alone the first instance of violence. And although the first studies of flaming or the general equivalent of virtual violence (Reid 1991; MacKinnon 1992) were not concluded until 1992, there is no doubt that the first flames were felt not long after the first virtual salutations were exchanged way back in the ancient Usenet year of 1979. Indeed, as I argue in _Searching for the Leviathan in Usenet_(1992 and 1995, hereafter referred to as _Usenet Leviathan_. References to differences in the versions are cited by date), no sooner had the first virtual man in 2 Usenet encountered his first stranger did he then have to face the possibility of fighting for his virtual life. As many can attest, survival in the wilds of Usenet is a trying experience--one that many have abandoned in favor of more civilized virtual environs. The flight or trend away from the free-for-all of the Usenet commons to the nominally governed environs of mailing lists and moderated newsgroups is something that I had anticipated while researching _ Usenet Leviathan_ (1995, p.135); however, I cannot cite any supporting literature for this observation because I am unaware of any research investigating this shift. The point being that sociopathy has been a major part of our virtual interaction from the beginning despite our inability or failure to comprehensively document and research it. Despite this research gap, it is abundantly clear that the "darker side" of virtual life merits considerable study. Fortunately, several projects still in press at the time of this writing will help remedy this shortfall (MacKinnon 1996; Smith, McLaughlin, and Osborne 1996; Karnow 1997; Reid 1997; Smith 1997). The discussion and analysis leading to a theory of virtual punishment presumes that the reader is familiar with the growing literature which develops the notion of cybersociety or "virtual community" and its inhabitants (for instance, recently Hoberman 1996 and Overby 1996). The argument developed herein, relying heavily upon groundwork established by this literature, is the final part of a trilogy (MacKinnon 1995, 1996) using a politico-theoretical perspective for analyzing the origin and control of sociopathy in cybersociety. The cybergovernance trilogy is based on the "persona" as the unit of analysis. Life online is lived through the personae of the users of the technology, not the users themselves (MacKinnon 1995, pp.117-20). Within the society of persone, Jones' "social formations" emerge from the newly developing norms, mores, tradition or other standards of conduct (McLaughlin, Osborne, and Smith 1995). My interpretation of Thomas Hobbes' (1962/1651) social contract theory is that these putatively coercive standards of conduct constitute the "Leviathan" or authority phenomenon which forces the personae out of the anarchic "state of nature" into a state of self-imposed governance (MacKinnon 1995). This virtual Leviathan defines and proscribes undesirable or anti-social behavior as well as metes out the punishment of the violators. In the account of virtual rape which follows, it was the Leviathan in the form of the enraged community that accused the rapist of wrongdoing and threatened to punish him for his crime (MacKinnon 1996). In effect, in a state of governance, the Leviathan enjoys a monopoly on the legitimate use of authoritative violence. All other violence is condemned and subject to retribution which may include the exercise of legitimate violence. It is within the framework of the trilogy--virtual governance, crime, and punishment--that the 3 discussion of the virtual Leviathan's power to punish is situated. The organization of this chapter begins with an introduction to the virtual and "real life" perpetrators under study and a classification of the crimes that they committed. Following this discussion, I begin the bridgework between physical and non-physical punishment by focussing on the history of punishment as it has been directed toward the body, soul, and/or mind. Next, I bridge the gap between physical and virtual bodies by revealing their shared origins in social construction. Finally, after eliminating the case which does not qualify as a virtual offense, I critique the actual penalties assigned in the remaining cases and make suggestions for sentencing guidelines based on standard ethnographic research. While the examples of the online crimes detailed within will refer to specific types of VR-producing technology, the cybergovernance theories are developed broadly enough to account for technological implementations not yet imagined. THE ROGUES' GALLERY: MITNICK, BUNGLE, AND BAKER It is my view that crimes involving computers have been often and wrongly conflated into a generalized category of "computer crime." Recognizing that categories of crimes tend to share categories of penalties, it follows that an over-broad category likely leads to unjustly adjudicated punishment. For the purposes of this chapter, "just adjudication" is defined as evaluating suspect actions in their local context, preserving the local context by the proper direction of punishment, and establishing a range of punishments appropriate to the local context and reflective of the relative seriousness of possible crimes. Just Adjudication Although "just" and "adjudication" have the same origin in _jus_, careless judicial procedure can stray from justice by failing to communicate and enforce clear social priorities. Justice is understood here as locally determined. While appeals to transcendent justice are possible, their discussion is beyond the scope of this argument. The major effort of this argument is to develop a standard of "just adjudication" by which one can recommend correctional or penal strategies to insure that punishment for virtual offenses is commensurate to the crime. I establish this standard by identifying the facets of its three components. 4 1. Evaluating suspect actions in their local context 2. Preserving the local context by the proper direction of punishment 3. Establishing a range of punishments appropriate to the local context and reflective of the relative seriousness of the crime Figure 1. Components of the standard of just adjudication The first component, evaluating suspect actions in their local context, attempts to prevent someone from being judged according to external standards. For example, if the village of kissing-cousins permits marriages between first cousins, it would be unjust to judge those marriages according to the standards of a community that does not. Similarly, the united hamlets of rabbit-eaters would not want to be judged by a community that prohibits the consumption of meat. The second component is preserving the local context by the proper direction of punishment. One way a community can preserve its local context is by developing and enforcing a legal jurisdiction over the criminal activities committed within them. This means when a person commits a crime in a rabbit-eating hamlet, the people of that hamlet should prosecute that person for that crime. This seems obvious enough, but unfortunately is not how it has always happened. It will be shown later, how a person who legally, though controversially, raped and murdered his victim in the city of sleazy-and-violent-sex, but was judged according to the standards of another community in which those activities were strictly prohibited. The third component is establishing a range of punishments appropriate to the local context and reflective of the relative seriousness of possible crimes. This means that punishments should take into consideration the local history, customs and other idiosyncratic considerations of a particular community. Public spanking is not very effective in a community of masochists. Further, the proper carriage of justice requires punishments which vary according to the seriousness of the crime. If murder is punishable by being changed into a toad, theft should not carry the same punishment. The severity of a penalty should determine the seriousness of a crime. Crimes with severe penalties should be more serious than crimes with less severe penalties. Crimes with the same penalties should be equal in seriousness. Establishing a stable set of graduated penalties makes the society's priorities clear. For 5 example, the village of kissing-cousins prohibits the consumption of meat; however, the sale of meat is considered far more serious. To communicate this priority, meat-eating is punishable by fine and meat-selling is punishable by imprisonment. The most important step towards establishing a standard of just adjudication is proposing that offenses involving computers should be divided into two primary categories: computer-related and computer-mediated, the latter being the domain of virtual punishment. This basic distinction goes a long way towards establishing the components of the just adjudication standard. Additionally, since the scope of the argument is limited to the efficacy of virtual punishment, it allows us to eliminate cases from review which are not instances of virtual crime. Using the case studies of Kevin Mitnick, Mr. Bungle, and Jake Baker, it is hoped that future cases will be properly categorized and justly adjudicated. The Classification Scheme Within the category of computer-related crimes are those which are "computer-incidental" and "computer- instrumental." Making the distinction among computer- related crimes becomes important when making just punishment decisions because computer-related crimes vary in seriousness and their penalties should vary accordingly. Computer-incidental crimes are offenses in which the use of computers are involved only incidentally or tangentially to their perpetration. For example, the theft of computer equipment falls into this category, because the computers themselves are not involved in a significant way. Rather, they are the object of the crime. The involvement of computers should not obscure the fact that the crime is fundamentally a theft. Another example of this class of crime is a case in which a computer monitor is used to pummel a victim into unconsciousness. While computer equipment is involved in the crime, clearly its involvement should not obscure the fact that this is fundamentally an assault. Had the perpetrator used a portable television, we would not be tempted to categorize this as a "broadcast" or "electronic media" crime. Theft and assault are well-defined crimes with a stable set of penalties. The mere presence of a computer should not obscure the underlying crime with an already stabilized set of penalties reflecting the social priority: crimes against people are worse than crimes against property. If the incidental presence of computers is allowed to shift the focus from the fundamental crimes, then the stability of their accompanying penalties is lost and the social priorities become confused. Computer-instrumental crimes involve computers more directly. The computer becomes the "tool" or instrument of the crime. In contrast with the computer monitor used as a 6 bludgeoning weapon, the operation of a computer to facilitate the commission of a theft is an example of instrumentality. This differs from a theft where a computer might be the object of the theft itself. Whereas, the object and weapon of the theft could be anything, the use of a computer "as a computer," not as a blunt object, makes it instrumental to the crime. An example of computer- instrumental theft is gaining unauthorized electronic access to a computer database of credit card information in order to steal the account numbers. Note that if this information is gained without using a computer, it should be properly classified as incidental as opposed to instrumental. This is because the use of a computer is not necessary for committing the crime. Accordingly, coaxing or "conning" someone with computer access into providing database information is an example of computer-incidental crime because it is the coaxing which is the basis for the distinction, not the fact that a computer is involved. A similar distinction is already made in differentiating between extortion and robbery. While both crimes result in the involuntary surrender of property, the distinction turns on how the surrender is induced. Therefore, recognizing the distinction among computer- related crimes is critical for determining punishment in accordance with the standard of just adjudication. Just as extortion is typically viewed as a less serious cousin to robbery, computer-incidental conning or theft ought to be the less serious cousin to computer-instrumental theft. Accordingly, the categories of punishment should reflect this priority as well. This is not to say that computer- instrumental theft is more serious than basic theft. Indeed, this social priority has yet to be established. Rather, the distinction is made to show that seriousness varies among the possible kinds of computer-related theft. The category of computer-mediated offenses is more difficult to explain because it is more abstract. Whereas, a computer in a computer-related offense is pertinent because it is in the foreground of the offense, a computer in a computer-mediated crime is pertinent because it provides the background. An example is entering a computer- generated environment and stealing a computer-representation of someone else's property. In this example, the computer provides the entire environment or virtual reality in which the crime takes place. In another example, a virtual assault is committed upon the representation of another person while inside a computer-generated environment. Once again, while a computer provides the environment for the crime, the crime does not turn on the instrumentality of the computer itself. The computer mediates every activity in this environment so much that to justly adjudicate offenses in this category, the computer must be properly understood _as_ the environment rather than as the instrument. The computer's centrality makes it omnipresent and its use so pervasive as to be invisible. Allucquere Rosanne Stone 7 (1995) calls this a "technosocial" environment in which "technology and nature are the same thing" (pp.35, 38-39). Understood in this way, the computer "as environment" seems somewhat similar to the earlier example of the computer "as incidental," yet an important difference between mediated and incidental offenses is physical intangibility. Intangibility makes for an uneasy equation between physical and virtual offenses. For example, an assault in a park does not seem the same as an assault in a computer-generated environment. On the other hand, enough victims of virtual assaults testify that the "felt" damage and pain is sometimes close enough to be tangible (MacKinnon 1996). While common sense might tell us that they should not be treated the same, common practice threatens to hastily seek tangible recourse for intangible acts. I suggest that this is due to the lack of an alternative recourse with a set of stable virtual penalties which communicate the priorities of the cybercommunity. In other words, failing the "proper direction" component of the standard, justice has not been attained. As a result, virtual execution was the punishment for rape in one computer-generated environment, but physical arrest and scholastic expulsion was the punishment in another. It is clear that the absence of a standard for adjudicating virtual rape threatens the carriage of justice in physical and virtual reality. Given the description for a just standard of adjudication, I turn now to actual cases of computer crimes to further clarify the boundaries of computer-related and computer-mediated offenses. By establishing these boundaries, it will be possible to identify future cases of virtual crime and adjudicate them in accordance with the standard. The three case studies which follow were selected because of their high-profile media coverage and suitability as ideal types for laying down a classification scheme. The recurrent themes of rape and magic emerged only after their selection and during analysis. While these themes are discussed cursorily, they deserve further investigation in another forum. Kevin Mitnick: Computer-Related Offender This description of Kevin Mitnick's activities dating back to the early 1980's, relies heavily upon investigative journalist Jonathan Littman's (1996) account based on personal interviews and articles which appeared in various newspapers. The seventeen-year old Mitnick's first publicized crime consisted of using unauthorized access to Pacific Bell's computers to alter telephone bills, gain entry to other machines, and steal $200,000 worth of data from a San Francisco corporation (p.17). After serving a six month sentence, his probation officer "found that her phone had been disconnected and the phone company had no record of it" (p.17). In December 1988, Mitnick, then 8 twenty-five, was arrested for "causing $4 million damage to a Digital Equipment Corp. computer" and "stealing a highly secret computer system" (p.17). A _New York Times_ article on his arrest reported that a "judge's credit record at TRW, Inc. was inexplicably altered" (p.17). U.S. Magistrate Venetta Tassopulos "took the unusual step of ordering the young Panorama City computer whiz held without bail, ruling that when armed with a keyboard he posed a danger to the community" (p.17). Afraid that Mitnick's capabilities were seemingly limitless, Vanetta further ordered that Mitnick be held in solitary confinement (p.19). _New York Times_ columnist John Markoff and co-author Katie Hafner (1991) report that while Mitnick was confined he had "sharply restricted telephone access" because there was "no telling what havoc Mitnick might wreak from a telephone alone"(Hafner and Markoff, p.342). According to Littman, shortly after Mitnick's arrest, additional allegations were made including investigators' belief that Mitnick "may have been the instigator of a false report released by a news service in April that Security Pacific National Bank lost $400 million in the first quarter of 1988" (p.17). Mitnick served his sentence, but he was arrested again on February 15, 1995 for violating the conditions of his parole and of committing a "crime spree that includes the theft of thousands of data files and at least 20,000 credit card numbers from computers around the nation" (p.292). An assistant United States attorney who helped coordinate the investigation from San Francisco said Mitnick was "clearly the most wanted hacker in the world. He allegedly had access to corporate trade secrets worth billions of dollars. He was a very big threat" (p.292). 9 Mr. Bungle: Computer-Mediated Offender I rely on Julian Dibbell's (1994) account of "A Rape in Cyberspace" to describe Mr. Bungle's alleged crimes. He is described as a "fat, oleaginous, Bisquick-faced clown dressed in cum-stained harlequin garb and girdled with a mistletoe-and-hemlock belt whose buckle bore the quaint inscription 'KISS ME UNDER THIS BITCH!'" (p.239). Mr. Bungle used a voodoo doll to force legba, a person of indeterminate gender, to "sexually service him in a variety of more or less conventional ways" (p.239) whereupon Mr. Bungle was "ejected bodily from the room" (p.239); however, because the victims were still in range of the voodoo doll, he was able to force legba into "unwanted liaisons with other individuals present in the room" (p.239). Further, as his actions grew progressively more violent, he forced legba to "eat his/her own pubic hair (p.240), and forced Starsinger to "violate herself with a piece of kitchen cutlery" (p.240). The assault ceased when Mr. Bungle was "enveloped . . . in a cage impermeable even to a voodoo doll's powers" (p.240). Three days after the attack, the community members of LambdaMOO gathered to discuss Mr. Bungle's fate. After a long discussion had ended without a resolution and everyone had left, the wizard Joe Feedback, acting alone and without witnesses, put Mr. Bungle to death. Within days of the secret execution, Mr. Bungle had apparently reincarnated as Dr. Jest. The primary evidence leading the community to this conclusion was that Dr. Jest had "developed the annoying habit of stuffing fellow players into a jar containing a tiny simulacrum of a certain deceased rapist" (p.254). Almost immediately, members of the community called for another execution or "toading," but their resolve waned upon the realization that Bungle/Jest could simply reincarnate again. It soon became apparent that Bungle/Jest, although still not very likeable, was not as vile in the current incarnation. Apparently, his execution seemed to have mellowed his demeanor. He eventually left the community voluntarily and never returned (pp.255, 257). Jake Baker: Computer-Mediated Offender The description of University of Michigan student, Jake Baker's crime is drawn from the events detailed in his own published account entitled "Pamela's Ordeal" (Baker 1995). Indeed, Baker's account constitutes much of the environment in which this computer-mediated crime took place. In the account, Baker and another male named Jerry apparently held a female victim captive in her own apartment. After some initial fondling, physical and verbal abuse, they forcefully removed her clothing and gagged her with her own undergarments. Jerry took several photographs, while Baker assaulted the victim in the face, eyes, nose and 10 ear with his penis. Following this, they taped her hands behind her back and suspended her by the hair from the ceiling fan. The assailants struck the suspended victim repeatedly with a "big spiky hair-brush," placed a "spreader bar" between her legs and applied "super-glue" and a "heavy clamp" to her genitals. After Baker photographed the still conscious and badly beaten victim, Jerry taunted her with a "hot curling iron" and then placed it against her buttocks while Baker observed and masturbated. After Baker removed the gag, he forced the victim to orally copulate him while Jerry forcefully inserted the curling iron into her rectum. After this, Jerry used a knife to sever one of her nipples. Then Baker paused to drink a beer while Jerry removed the curling iron and proceeded to sodomize her. Baker claimed he timed Jerry for ten minutes while the victim begged and pleaded with him to stop. They laughed, doused the apartment with gasoline, and set it afire with the victim still alive inside. For his crime of virtual rape, torture, and murder, Baker was physically arrested for "the transmission in interstate or foreign commerce of a communication 'containing any threat to kidnap any person or any threat to injure the person of another'" (United States Attorney 1995) and expelled from the university for endangering the "health, diligence, and order among the students" (Swanson 1995). Jerry, on the other hand, was not apprehended because authorities were unable to identify a physical suspect. It is likely that Jerry was an additional persona of Baker's, in which case he was apprehended at the time of Baker's arrest. Further, although the victim's persona was definitely virtually raped and murdered, other than feeling "frightened and intimidated by [the event]" (United States Attorney 1995), the victim was not harmed physically by Baker. In fact, other than being enrolled in the same course, any physical contact between them was minimal to none. The analysis of these three case studies requires the further development of the contours of the standard of just adjudication's second component--the proper direction of punishment. In the next section, I explore the relationship between bodies and "persona/selves/subjects" and their relationship to properly directed punishment. CORPORAL PUNISHMENT: PUNISHING THE BODY Corporal punishment, literally, the punishment of the _corpus_ or body has a long history in our social development. Swedish criminologist Torsten Erikkson (1976) writes, "The history of justice is replete with violence and fear. Ever since the concept of law came into being, the authorities have been convinced that respect for the law mainly depends on the severity of the punishment" (Erikkson 1976, p.1). From the Hobbesian standpoint, that of the Leviathan's monopoly on legitimate violence, Erikkson's 11 observation seems obvious. Afterall, it was the "fear of death, and wounds" (Hobbes 1651/1962, p.81) inflicted by one another, which theoretically forced the "nasty, brutish" and short-lived people to leave the state of nature and enter into a social contract in the first place. In exchange for the peace and safety conferred by the contract, people surrendered to the Leviathan their individual rights to violence. Hobbes' oft-called paranoid view of humanity was shaped during a period in which his people had feared an attack from the Spanish Armada--perhaps the most awesome and forceful display of human violence known at the time. It follows from reason that his situation would lead him to take a dim view of human nature; however, there are rosier alternatives to Hobbes' view of human nature. Indeed, while it may be characteristic of our human nature to mistrust one another--and for good reason--it also seems characteristic to feel ashamed of this predilection and to make strides towards a society based on "real" happiness--not happiness amounting to an enforced cease-fire by an all-powerful and dreadful Leviathan. Erikkson, just one among many reformers along the path to benevolence, puts it, "The history of the treatment of criminals is primarily the story of man's inhumanity to man. At the same time it contains innumerable examples of his compassion and of his will to lead the offender into a new life as a useful and responsible citizen" (Erikkson 1976, Preface). In this sense, it is possible to look at our attempts to reform the penal process as an attempt to reform ourselves--the constituent elements of the Leviathan- -and become more compassionate. In his book _Discipline and Punish_ (1979), Michel Foucault is critical of both levels of reform, but not because reform is undesirable or unneeded. On the contrary, he is critical because the reform actually hides the power which punishes rather than investigates the power's relationship to inhumanity. As a result, the treatment of criminals appears to be more compassionate because "man's inhumanity to man" has been hidden rather than reformed. Foucault contrasts a graphic account of the mid- eighteenth century public torture and execution of "Damiens the regicide" with the daily schedule for inmates sentenced to a Parisian "House of young prisoners" almost a hundred years later. Whereas, the first account describes a type of punishment which Foucault calls the "spectacle of the scaffold," the latter shows how "modern" method removes or hides punishment from the public view. Perhaps the social importance of the public spectacle has been underestimated. George Ives (1914) comments on the pillory, "This well-known instrument was made of all shapes and sizes, and varied from a forked post or a split pillor. . . . The hair of the head and beard was shaved off, and sometimes the victims were secured by being 12 nailed through the ears to the framework, and might also be branded. With faces protruding through the strong beams, and with hands through two holes, secured and helpless, they were made to stand defenseless before the crowd as targets for any missiles that might be thrown. To those who were hated, this was a serious ordeal, for they would be so pelted and knocked about by the mob as to be badly wounded, if not actually done to death. . . . The pillory was abolished . . . altogether in the year 1873" (1914, p.55). It was not enough to simply imprison the offender. Nor was it sufficient to observe someone else deal the blows. Ives' account clearly reveals an interactive and intimate component of punishment which is built into the structure of the pillory itself. Foucault explains that punishment's move behind prison walls and away from public view was a result of the "shame" of having to exercise violence to redress violence (1979, p.9). Accordingly, the corresponding shift away from corporal punishment was justified by the ugliness and distastefulness of physically interacting with the punishment of a human body. Indeed, the recognition of punishment as "dirty work" resonates with Erikksons's call for compassion over brutality. Foucault writes, "It was as if the punishment was thought to equal, if not to exceed, in savagery the crime itself, to accustom the spectators to a ferocity from which one wished to divert them, to show them the frequency of crime, to make the executioner resemble a criminal, judges murderers, to reverse roles at the last moment, to make the tortured criminal an object of pity or admiration" (1979, p.9). It goes without saying that personally inflicting pain on another is an intensely intimate procedure. On this point, Ives writes, "A remarkable illustration of the intensely individual and personal aspect of primitive penalties is furnished where--as it sometimes happened--the prosecutor had himself to execute his convicted assailant "or dwelle in prison with the felon unto the time that he wyll do that office or else find a hangman" (1914, p.57). On the other hand, this personal relationship provides the vengeance desired when he notes, "At some of the American lynchings the injured woman applies a match to the wood upon which the offending negro [sic] is to be burned to death" (1914, p.57, note 6). Whatever the case, the relationship between the punisher and the punished changed. As Foucault puts it, 13 "the body as the major target of penal repression disappeared" (1979, p.8) first from public view and then from under hand. The reform movement ended the public spectacle initially by shrowding the condemned in an effort to hide the vulgarity of the body and later by conducting the executions behind the walls of the prison (pp.14-15). In LambdaMOO, the people were spared the intimacy and the spectacle of Mr. Bungle's punishment for he was executed out of plain view. Despite the bodylessness of both the executioner and the executed, the lethal act was still intimate enough to leave the wizard-executioner "angst- ridden" (Dibbell, p.253). While reformers may argue that the distancing from or disappearance of the body was due to strides towards compassion, Foucault disagrees. Although penal reforms sought to end torture and distance the disciplinarian from the body by imposing non-physical penalties such as fines or restrictions on liberty, Foucault argues they could not be completely successful. By using the body as an intermediary, they hoped to effect a Cartesian split, in which they could "deprive a person of liberty that is regarded both as a right and as property" (Foucault 1979, p.11) while remaining convinced that the body was not the subject of the penalty. It was an attempt to separate the person from the body. "The body" writes Foucault, "is caught up in a system of constraints and privations, obligations and prohibitions. Physical pain, the pain of the body itself, is no longer the constituent element of the penalty" (p.11). In other words, pain incidental to non- physical punishment was more acceptable than pain caused by corporal punishment because the object was not to cause it. Foucault notes that even "[f]orced labour or imprisonment-- the mere loss of liberty--has never functioned without a certain additional element of punishment that certainly concerns the body itself: rationing of food, sexual deprivation, corporal punishment, solitary confinement" (p.16). This was true for Jake Baker. His pain was incidental to the "non-physical" punishment of his person (arrest and expulsion) which was more acceptable than any "physical" pain meted out via virtual means, such as toading. Nonetheless, Foucault's point is well-taken. The phenomenon of the disappearing body seems well- suited to the bodyless environments of VR, but as Foucault points out, any attempt at restricting the body's liberties "certainly concerns the body itself." This observation reminds me of Stone's comments on the "old Cartesian trick" (1991, p.113) in response to the notion that "a time will come when [cyberspace developers] will be able to forget about the body" (p.113). Reacting to this notion of unrestrained liberty once the body has been "decoupled" from the "subject" or persona, Stone turns these cyber-Cartesians on their heads by reminding us "No refigured body, no matter how beautiful, will slow the death of a cyberpunk with AIDS. Even in the age of the technosubject, life is lived through 14 bodies" (p.113). Indeed, whether we are trying to liberate the persona or restrict a person's liberties, it seems that we have yet to discover a way to completely lose the body. Nonetheless, as I observe in _ Usenet Leviathan_, "it is common and expedient to 'forget'" the coupling (1995, p.121). For now, the trick to losing the body is in the expediency of the forgetting. Presumably, this is what Foucault thinks most penal reformers are doing and what I believe most cyberspace inhabitants who think they can detach from their bodies _must_ be doing. Whereas, I take the persona as my unit of analysis in the cybergovernance trilogy, Foucault throughout his work, undertakes power as his. This approach permits Foucault a cross-sectional insight allowing him to view bodies as persons battling for power as well as the places where the battles are fought (Foucault 1979, pp.25-27). This perspective, which he calls the "political technology of the body" (p.26), will be returned to repeatedly for it goes a long way towards fleshing out the virtual body and its punishment. NON-CORPORAL PUNISHMENT(Note 1) The purpose of this section is to see if anything can be learned from non-corporal punishment that can be applied to a community of bodyless beings. It is unlikely that Foucault had virtual reality in mind when he wrote his histories, but a fairly close reading shows us that the "political technology of the body" is certainly relevant to the production of virtual bodies. While the concept of virtual bodies may seem a bit ephemeral to some readers, I want to point out that Foucault did address non-corporal bodies while not dealing with virtual bodies per se. Of course, he was referring to the soul, a concept which may be even more (or less) ephemeral than virtual bodies, depending on your viewpoint. In many cases, the soul rather than body was no doubt the target of punishment. If punishment of the soul was intended as the means of avoiding punishment of the body, it was ironically the site of extraordinarily painful episodes in the history of human torment. Some state-sanctioned actions bore a remarkable resemblance to the heinous actions perpetrated by both Mr. Bungle and Baker. Let us revisit Damiens who is in the process of having his flesh ripped away in a public spectacle: 'After these tearings with the pincers, Damiens, who cried out profusely, though without swearing, raised his head and looked at himself; the same executioner dipped an iron spoon in the pot containing boiling potion, which he poured liberally over each wound. Then the ropes that were to be harnessed to the horses were then attached with cords to the patient's 15 body; the horses were then harnessed and placed alongside the arms and legs, one at each limb. 'Monsieur Le Breton, the clerk of the court, went up to the patient several times and asked him if he had anything to say. He said he had not; at each torment, he cried out, as the damned in hell are supposed to cry out, "Pardon, my God! Pardon, Lord." Despite all this pain, he raised his head from time to time and looked at himself boldly. The cords had been tied so tightly by the men who pulled the ends that they caused him indescribable pain. Monsieur le (sic) Breton went up to him again and asked him if he had anything to say; he said no. Several confessors went up to him and spoke to him at length; he willingly kissed the crucifix that was held out to him; he opened his lips and repeated: "Pardon, Lord" (Foucault 1979, p.4). First note that the reporter from the _Gazette d' Amsterdam_ refers to Damiens as "the patient," presumably implying that he is being treated or cured (Note 2). Yet, if his caretakers clearly intended to remove his four limbs by the most painful way possible, one must draw the conclusion that it was not Damiens' body that they were trying to cure. Also note that it is "Lord's" pardon which Damiens sought, not his executioner-caretakers'. The treatment or salvation of the soul has been practiced throughout the centuries in nearly every culture with a concept of afterlife. Many societies, while believing in deities and divine retribution, still take it upon themselves to punish in the name of their god. In other words, just in case the patient or penitent escapes punishment in the afterlife, these societies make certain that he or she suffers as much as is mortally possible by way of "penal insurance" (MacKinnon 1996). The belief in divine retribution is very much a part of our own culture. "Solemnly swearing" to God is so ubiquitous a method for securing truthful testimony or loyalty, that we rarely really think about the afterlife consequences. Chances are most people are more concerned with the mundane consequences for perjury or treason. Indeed, even the modern day caretakers acknowledge this by allowing oathmakers to substitute "affirm" with "swear." This substitution is an affirmation in the knowledge that while divine punishment is to be feared, mortal punishment is a nearer certainty. In Damiens' case, his executioners went so far as to set him on fire, perhaps to insure against his less certain fate in Hell. Penal reform's affect on non-corporal punishment delivered by physical means was the minimalization of pain and intimacy. Interestingly, the death penalty persisted as a method for punishing the soul. Foucault writes, "In France, the guillotine, that machine for the production of rapid and discreet deaths, represented a new ethic of legal death" (1979, p.15). The guillotine and other modern death- 16 inducing systems serve the purpose of providing painless (thereby ethical) mortal punishment and rapid delivery of the soul to one's maker--often with the sentiment, "God have mercy on your soul." Perhaps the change came about from realizing that the proper place for administering non- corporal punishment was in the hands of God. Given this, non-corporal punishment became a means of transportation. But not everyone believed that death was the best method for inducing divine retribution. According to anthropologist Bronislaw Malinowski (1932), the Melanesians used both lethal and non-lethal means for placing the punished in the hands of their deities. If they caught a rapist _inflagrante_, he was put to death, otherwise "he was exposed to the danger of sorcery rather than to that of direct violence" (p.387). The use of sorcery, voodoo, hexes, and curses are non-physical ways of meting divine punishment. As a result, accident, disease, and death from natural causes are often credited to these methods (MacKinnon 1996). Of course, not all action taken against the soul must be painful or lethal. Recall the discussion of Damiens' session with God on earth. The reporter's use of the word "patient" implies that the prisoner's soul was being treated. The shift from punishment to treatment comports with the disappearing act of which Foucault speaks. This substitution allows both the criminal and the executioner to disappear behind the now medicalized curtain of penal reform. In effect, by drawing our attention to the magician's diversion, Foucault enables us to view penal reforms aimed at treatment and rehabilitation with a critical eye. Again, this is not an argument against these desirable and benevolent aims, but a call for the assessment of their implementations--we may not be as compassionate as we think. Nonetheless, spiritual treatment abounds and of course, it is not just available to criminals. Today it seems another kind of reform is gaining popularity and this one is aimed at _remedying_ a disappearance--the disappearance of the soul in the corporate workplace and in the way we conduct business. It is interesting to pause for a moment on the words "corporate" and "incorporate" and to contemplate their implication--to make a body. The incorporated body is an entity which embodies and enlists the bodies of its constituent parts in the service of a greater whole. Of course, the legal motivation behind incorporation is not to make a body as much as it is to hide one--the principal business owner's--from legal liability. Incorporation as a legally recognized body is very much an example of the political technology of the body. The corporate body or business-mediated body was a battle won in favor of business people. The ramifications of this battle are evident whenever people attempt to bring legal action against a corporation for injuring their physical bodies. 17 In view of this, there is no doubt that corporations- -bodies made for business--lack a soul or _animus_. There is no business reason for--what would the word be-- animation? Yet this seems to be changing. Journalist Jim Morrison (1995) gives several examples of how possessing or creating a corporate soul can pay earthly dividends. In addition to superior product, comfortable atmosphere, and brand identification, the businessman behind Starbucks Coffee Company believes that the addition of corporate soul will insure his company's competitiveness. Lotus Development Corporation has a "soul committee." The Boeing Company hired a poet to "lift the spirits." Experts in the corporate soul movement have written books such as David Whyte's best-seller _The Heart Aroused: Poetry and the Preservation of Soul in Corporate America_ and Tom Chappell's _The Soul of a Business: Managing for Profit and the Common Good_. Chappell has a divinity degree from Harvard. Another book is _Leading with Soul: An Uncommon Journey_, co-authored by Terrence Deal (Morrison 1995, p.94). We also have Thomas Moore's _Care of the Soul: A Guide for Cultivating Depth and Sacredness in Everyday Life_, which ranked number one on the _New York Times_ best- seller list. Could it be possible that Moore is caring for the same soul as the caretakers of the corporate soul? Some people interchange the soul's relationship to the body with the mind's relationship to the body. On this latter relationship, there is a great deal of literature in psychology, philosophy, and other disciplines--too much in too many divisive intellectual camps to formally list here without going far astray from the argument. The Cartesian dichotomy which places the body on one side of a theoretical gap necessarily, and perhaps inaccurately, requires the placement of something else--mind, spirit, or soul--on the other. If the computer interface places a virtual body on one side of the gap, what then must be on the other? Is it useful to think of the user as the "body" and the persona as the "mind"? Or perhaps, the persona as the "body" and the user as the "mind"? Or even, the persona as the "body" and the user as the "soul"? While fascinating, which speaks to the great many words written by so many people on this dichotomy, it is doubtful that I will be able to satisfactorily resolve it here in this small space. Foucault obliquely calls the fascination with the soul the "reactivated remnants of an ideology" (1979, p.29). It seems to me that his word choice indicates his desire to maintain a safe distance from controversy--a strategy I admire and strive to duplicate here. He says that one should see the soul as the "present correlative of a certain technology of power over the body" (1979, p.29). In other words, the soul like the body, is a battlefield upon which its definition and control is fought. But to define the soul as such implies that it really does not exist. On this point Foucault writes, 18 "It would be wrong to say the soul is an illusion, or an ideological effect. On the contrary, it exists, it has a reality, it is produced permanently around, on, within the body by the functioning of a power that is exercised on those punished" (1979, p.29). By my interpretation, the Foucauldian soul is socially constructed as is everything else in his universe. It is as "real" as anything else. Indeed, I will show later how the body, like the soul or the business body, is constructed in the same manner. Foucault wisely dodges rebuke, by differentiating the soul in his discussion--the "modern soul"-- from the Christian soul, which he calls the "illusion of the theologians" (1979, p.30). He says that the political technology of body applies to the former. He does not comment on its applicability to the latter. I will leave an interpretation of the unsaid to more qualified Foucauldian scholars. The controversial Cartesian split effected by the technology seemingly places something on one side and something else on the other. Since the production of the persona with its coupling to a virtual body inheres in it many physical, body-like qualities, it is arguable that if the persona-as-body sits on one side of the split, then the user-as-soul sits on the other. Such an argument paves the way for soul-oriented punishment (or treatment) of a persona to be directed towards the user. This approach seemingly solves the problem posed by the possibility of reincarnation as exemplified by Mr. Bungle's return as Jest. On the other hand, misapplication of this approach, as in Baker's case, produces very unjust results. Indeed, the many-to-one relationship of personae to user challenges the development of theories of punishment for newly developing virtual communities. PUNISHING THE PERSON If non-corporal punishment seems intangible due to its intertwining with an intangible soul, the re-grounding of punishment in tangible bodies seems to be an obvious recourse even with penal reform's constraints taken into consideration. But re-grounding punishment in tangible bodies seemingly takes me away from the goal of justly punishing intangible, virtual bodies. This is not the case. The purpose of this section is to show that physical bodies are not as tangible as they seem. As a result, I will be able to show that virtual and physical bodies have much in common. Prior to punishment is the apprehension of the "person" or the juridical subject who must be held accountable for his or her actions. Without taking a side- trip into the burgeoning research area that answers the question "What is a person?", it is plain enough to recognize that a person is more than the mass and sum of his 19 or her body. To greatly paraphrase the literature, a "person" is a complex mix of identity (negotiated, received, and cultivated), socially-legitimated authority, and legal warrantability situated in a culturally legitimated body. Stone (1995, p.95) explains that warrantability is a political requirement for effecting the social contract. In essence, one's body is warranted in good faith for keeping the tenets of the social contract. Should one fail to keep his or her end of the bargain with everyone else-- the Leviathan--his or her body becomes warrantable and subject to arrest. It is because of warrantability, Stone concludes, that our political system reduces persons to their bodies. While not a wholly accurate reduction, up until recently it seemed that all of the traits of personage seemingly were found in the nexus of one's body. As a result, apprehension in our society, and most others, refers to the apprehension of the perpetrator's body. Although the discussion has shown how the focus of punishment has tended to shift away from the body, the body remains the focus of apprehension. It makes sense that one should answer for misdeeds with his or her body since it was the body which needed protection via the social contract in the first place. One could argue here that the contract was executed to safeguard rights, not bodies, but it will be recalled that Foucault points out it is impossible to apprehend or curtail one's rights without somehow affecting the body. Since in the physical world rights inhere and have context in bodies, then it follows that it is to bodies that accountability must attach. As a result, we--as government--go through great lengths to insure the identifiability and uniqueness of each and every warrantable person in our society. This warranting process is accomplished by continual and lifelong confirmation. When one seeks a social benefit, whether public or private, one can be expected to prove his or her identity--an identity which describes a lifelong association with a particular body. Stone calls this association a "body unit grounded in a self" or a BUGS (1996, p.85). Therefore, law enforcement officials seeking to arrest misbehaving selves have little recourse than to arrest the bodies in which they are grounded. Although more tangible than selves, bodies are not as tangible as they seem. In fact, the constitution of a body is under constant change. Today's human body is very different from the prototype. The modern body incorporates contact lenses, dentures, hair plugs, hearing aids, artificial hearts, and synthetic limbs. When a self is frequently or permanently associated with any of these things they become a part of a body/identity. In this way, a hacker can be seen as the prototypical incorporation of computers by humans. Mitnick was perceived as dangerous when "armed with a keyboard." It is possible to understand this perception in two ways. First, with the keyboard 20 understood as an armament, but second as an arm, extra limb, or extension of his body. Stone (1991) argues that the computer can be viewed as a type of incorporable prosthesis (p.89). This line of thinking--that of challenging the boundaries of the body--is further developed in Donna Haraway's notion of the "cyborg" (1991) and Alexander Chislenko's cyborgization theory of "legacy systems" (1995). In effect, the boundaries of the human body are in constant flux by way of incorporation, extension, and augmentation. The notion of the "culturally intelligible" or "culturally legible" body is one that harkens back to Foucault's battlefield. Subsequently developed by feminist theorists such as Judith Butler (1990) and Stone (1996), it essentially means that a bodily-grounded identity is whatever society understands it or "writes" it to be. As a result, selves or owners of bodies with colored skins, traditionally female anatomy, physical disabilities, birth defects, transsexualized gender traits, disease, or advanced signs of aging have been written into the margins of the cultural text. Far from being a comprehensive list, it changes in length as the battle for intelligibility or legibility peaks and falls with some groups gaining recognition and understanding as "socially acceptable" identities while others are forced to remain on the fringes. The process of cultural intelligibility alters the social conception of what a person or body/identity is and whose body/identity matters. The real effects of this process become quite evident in the following analysis of the case of Kevin Mitnick. The construction of Kevin Mitnick The "big threat" which Mitnick represented was perhaps the greatest of his crimes. To many people, computers are mysterious devices whose inner workings-- without observable moving parts--are not widely understood. Whether it is rationally-based or not, one must recognize that ignorance can lead to distrust, fear, superstition, and hostility. While public attitudes towards computers have changed greatly, its impression of computers and of the people who spend a lot of time with them has been shaped by years of ignorance. The general public's leeriness is understandable given Steven Levy's (1994) observation that the goal of a hacker is not solely constructive, but one that provides "some wild pleasure . . . in the mere involvement" with computers (p.23). It should be noted that "hacker" was a label originally self-assigned to MIT's early computer obsessed (pp.24-27), however, once the term entered into mainstream parlance, one became a hacker simply by having an affinity for computers. As long as someone seemed to be getting an extraordinary amount of pleasure from using a computer--no matter what he or she was doing--the label 21 seemed fitting. It was, and still is, a vague term, yet most hackers--in the original sense or not--were pleased to have it as a label for it announced to the public "I am a computer whiz." But this vagueness which connoted a mysterious degree of expertise also had the effect of playing upon the ignorance of the general public. Indeed, a "whiz" is a technical wizard whose feats and illusions are tantamount to magic when displayed before an unsophisticated audience. Unfortunately for Mitnick, the vague, but "big threat" which he posed to the general public greatly shaped his identity, the construction of his body, and his eventual demonization. The hacker's body While it is well-known that Mitnick is capable of committing most of the crimes of which he was accused, it seems many of the crimes were blamed on him simply because he was the only one capable of committing them. Indeed, so renowned where his alleged capabilities, there were likely no other suspects to investigate. The spectacularity or outrageousness of a computer crime became his finger print. Additionally, the fear of his capabilities attributed to him skills almost magical in nature. For instance, the _Los Angeles Daily News_ reported that a "guy like Mitnick can commit crimes all over the world in a 10-minute span." In the same article, it quoted Los Angeles Police Department Sergeant Jim Black as saying that because Mitnick "does not seem to be motivated by money he is more dangerous. . . . It is possible for a person with Mitnick's capabilities to commit nearly any crime by computer. You could even kill a person with a computer" (Littman, p.17). Hafner and Markoff (1991) note that Mitnick's obsession with computers was not generally understood as being a motive in itself, yet when he carried this obsession "beyond what computer professionals consider ethical and lawmakers consider acceptable" he began to have problems with the law (p.9). Focussing a moment on what it means to be "beyond" professional ethics and legal acceptability, it should be noted that "stealing" credit card numbers is different from actually using them and that accessing computers with trade secrets is not the same as selling those secrets. Indeed, most of Mitnick's activities are criminal because there is a legal assumption of a profit motive, but in fact, the FBI had no evidence that Mitnick had "charged even a dollar" on any of the stolen cards (Littman, p.293). In that Mitnick posed a "big threat" because he _could_ have charged other people's cards or sold corporate secrets, he was perceived just as dangerous as someone who had actually carried out the threat. Many people routinely have access to credit card numbers and corporate secrets, but usually they are authorized employees and officials of legitimate organizations such as credit bureaus and law firms. The general public is not afraid of these people although they 22 too pose a similar threat--they _could_ steal the information if they wanted to. In short, something makes Mitnick more threatening. Is it his criminal record? It is far less remarkable than his reputation. Perhaps it is his unconventional and misunderstood motivation. Is gaining unauthorized access to computers containing valuable information the same as stealing the information? Is the unauthorized copying of valuable information for the sole purpose of copying it tantamount to theft? With regard to Mitnick, both answers are "yes," because it is inconceivable to most people that anyone capable of sneaking into a bank's vault would do so without taking and spending the money. Thus in our society, profit seems to be an implied motive for breaking many of our laws. In fact, if Sergeant Black's view is representative of law enforcement and the general public's, not having a profit motive contributed to placing Mitnick beyond comprehension and made him even more threatening--and thereby, more dangerous. Not only was he a technological wizard, he was a wizard without a comprehensible motive. The public's perception of Mitnick is not surprising considering their unfamiliarity with what a hacker is. The benign origin of the term has already been discussed, but as Hafner and Markoff (1991) note, the press has been a "help" in changing the public's perception to one much less favorable (p.11). Ironically, but less surprising than Mitnick's motivations, Markoff himself has been personally accused of this sort of "help" and for "cashing in"--a book and movie deal worth $2 million--on the hype he allegedly helped generate (Littman, pp.330-338, 367). It seems that the journalistic ethics displayed in this case may be as suspect as Mitnick's hacker ethic. But if the hacker is not profit-driven, what is the motivation? Littman claims it is power--"Mitnick had little interest making money with his phone and burgeoning computer skills" (p.30). This sentiment is repeated by another hacker interviewed by Littman--"It's the control, the adrenaline, the knowledge, the having what you're not supposed to have" (p.91). The incomprehensible Mitnick has been accused of committing acts nearly magical in nature, yet every magician knows that magic is part skill and part illusion. In actuality, Mitnick's crimes were very mundane and should have been adjudicated as such rather than exaggerated beyond proportion. Assuming for a moment that Mitnick had intended to sell the information he had accessed, the government's request for an eight- to ten-year sentence is the same penalty for manslaughter (p.371). It seems that equating Mitnick's offenses with manslaughter confuses the social priorities. Despite the willingness of law enforcement, the media, and the public to believe the hype and illusion, his computer-related offenses were fundamentally crimes ranging from trespassing to grand theft. 23 Mitnick the monster An attempt to understand why these fundamental crimes were exaggerated, communicated and understood as a "big threat" invisibly perpetrated by a hacker capable of quickly stealing "billions" and "killing a person with [only his] computer" reminds me of examples in history where misunderstood or unusual persons were feared, demonized, and scapegoated. Along these lines, Mitnick's crimes were sometimes not heinous enough. For example, his offenses were sometimes compared to rape implying the breach of something even more sacred than the security of property and lives. To say that one feels raped usually means that one has experienced something more poignant than an assault. It may imply an acute sense of helplessness which is understandable given Mitnick's perceived omnipresence, invisibility, unknown motivation, and lethalness. He was made into the perfect monster. A frustrated employee of Digital Electronics Corporation wrote about his experience with Mitnick's repeated electronic incursions into corporate computers: "We seem to be totally defenseless against these people. We have repeatedly rebuilt system after system and finally management has told the system support group to ignore the problem. As a good network citizen, I want to make sure someone at network security knows that we are being raped in broad daylight. These people freely walk into our systems and are taking restricted, confidential and proprietary information" (Hafner and Markoff, p.120). Apparently for this male victim, Mitnick's unauthorized "taking" of information was more than a theft. Perhaps it was the audacity of stealing the information while the victims were present, but usually this is called a robbery. In addition to helplessness, perhaps it is the act of invasion or penetrating the systems' defenses, but again, theft combined with invasion is usually called a burglary. Why did this victim feel that the fundamental crime--whether it was theft, robbery, or burglary--did not sufficiently describe his experience? Apparently, he was not alone. According to Littman, "[t]the federal government had decided Kevin Mitnick was a danger to society, and like a convicted rapist or child molester, Mitnick was being monitored. His probation officer would persistently contact Mitnick's prospective employers: 'Does he have access to the cash? . . . I want you to understand the danger. . . .'"(p.20). Here again is seen the mixing of rape and theft in the shaping of Mitnick's identity. Littman's account shows 24 how concern over rape and molestation shifts illogically and irrationally to the security of one's cash. In the presence of rape and theft, is not the traditional concern the safety of women and children? Or more to the point, in the absence of women and children, how do Mitnick's crimes become perceived as rape? In the following dialogue with a hacker named Lewis De Payne, Littman (1996) discusses his reaction to having his own e-mail read by an eavesdropping Mitnick: "[It didn't seem possible] to hack my e-mail." De Payne pauses and his voice slows. It's as if he's whispering in my ear. "Tell me, Jon, do you feel violated?" This isn't what I expected, but I decide to play it out. "Well, yes, actually, a little." "Do you feel female?" I'm silent. "It's the same feeling of electronic rape that a lot of companies are complaining about," De Payne continues. "I wish some reporter would write about these companies that are being electronically sodomized" He's irritated. "I think the whole thing is academic. These companies complaining. Kathleen Carson of the FBI comparing someone [Mitnick] to a child molester. Why not just say they're being sodomized?" (pp.119-120). It is apparent from this dialogue that in the absence of the traditional victims of rape and molestation, rape can be a description for a theft if one is made to "feel female." Indeed, one wonders if the "big threat" which Mitnick posed was the feminization and rape of typically male victims. The self of Kevin Mitnick is beyond apprehension, but his person is not. Understood as a constructed body inter- relating with a constructed identity, Mitnick's computer- related offenses were first perceived as being perpetrated by teenage whiz and later, by a deadly rapist-like criminal. As society transformed his person, accordingly his crimes were perceived as more serious. 25 The adjudication of Kevin Mitnick Mitnick's case shares much in common with the other two. All three committed crimes in which computers played an important role. All three crimes included actions which some people interpreted as rape. Seemingly without limit, Mitnick's technical abilities were reputed to be magic-like in nature. Similarly, Mr. Bungle relied upon his technical skills to create a voodoo doll with magical abilities. Mitnick was accused of being deadly when armed with a computer. With computer-mediation, Jake Baker tortured and killed his victim's persona. Despite these many similarities, Mitnick's case is primarily different from the others in that his offenses were not computer-mediated. Mitnick's use of the computer was limited to incidental and instrumental roles. As much as I have to say regarding the disposition of his case, the just adjudication of computer-related offenses lies beyond the scope of this chapter. The purpose of this chapter is to propose correctional strategies for virtual offenders. This is not to say that the study of Mitnick's case was not worthwhile. On the contrary, it serves as an important boundary marker between computer-related and computer- mediated offenses. Further, the analysis of the socio- cultural construction of Mitnick's hacker body/identity is useful in recognizing the similarly constructed virtual body/identities of Mr. Bungle and Jake Baker. PUNISHING THE PERSONA: BODYLESS OFFENDERS AND VIRTUAL PENALTIES "The apparatus of punitive justice must now bite into this bodiless reality"--Michel Foucault (1979, p.17) What happens when Stone's "body units grounded in selves" meets Butler's "culturally intelligible bodies" and Foucault's "political technology of the self" is what I call the "battle of the BUGS." This battle has followed the human exploration into cyberspace, but persons cannot exist there because cyberspace is not habitable for physical bodies. Hence, the exploration and battle has been undertaken by personae--virtual bodies grounded in selves. Although hacker bodies and identities, such as Mitnick's, have been the subject of much cultural construction, the boundaries of the virtual body and identity are even more flexible. The persona is the new site for coding cybercultural norms and establishing technosocial intelligibility. The relative decentralization of power in cybersocieties has permitted a variety of characteristics to be recognized as constitutive of one's persona. Examples include indeterminate or arbitrary gender; magical powers; teleportation ability; arbitrary physique, ethnicity, and sexual preference; non-human and 26 inter-human species; regenerative abilities; and the ability to reincarnate. Yet, despite this vast array of difference with possibilities for new social configurations, we must not forget Stone's image of the super-persona tied to the dying body of a hacker with AIDS. To this day, virtual bodies remain coupled to selves which depend on physical bodies for existence. Until this relationship changes, the social configurations and possibilities in cyberspace will be constrained by it. With this in mind, I return to the remaining case studies and critique their dispositions in light of the standard of just adjudication. Afterwards, I will propose a model for establishing sentencing guidelines in accordance with the standard of just adjudication. The adjudication of Mr. Bungle The fact that the victims and other members of the community of LambdaMOO believed in the voodoo doll's magic and ascribed rape to the events which occurred is an interesting phenomenon in itself. The phenomenon, known as "attribution," occurred primarily as a result of the long socio-historical development of rape. The people of LambdaMOO had an understandable perspective given the set of events (MacKinnon 1996). Indeed, it is arguable that their immersion in a technosocial environment gave them a stronger justification for believing in magic and "feeling" the rape than Mitnick's victims. In the interest of space, I will take the acceptance of rape and magic in LambdaMOO as a given; however, a complete discussion of the social construction of virtual rape and magic is taken up in the second part of the cybergovernance trilogy (MacKinnnon 1996). For his crimes, Mr. Bungle was executed by a wizard. Wizards are personae who have the power to discipline. By "toading" or "recycling" Mr. Bungle, the wizard destroyed him. It should be noted that the person in whom Mr. Bungle "was grounded" was not disciplined in any way. This was a deliberate decision made by the community of LambdaMOO. "He had committed a MOO crime, and his punishment, if any, would be meted out via the MOO" (Dibbell, p.249). Indeed, they had considered entreating his university to prosecute him for sexual harassment or seeking prosecution under California's laws prohibiting obscene phone calls. As Dibbell notes, despite the frequent references to Mr. Bungle's misdeed as rape, the community's willingness to avoid conflating computer-mediated rape with physical rape "testifies both to the uniqueness of the crime and to the nimbleness with which the discussants were negotiating its idiosyncrasies" (p.249). I agree that the people of LambdaMOO should be commended for properly classifying the offense as computer- mediated and refraining from seeking tangible remedies (such as prohibitions against obscene phone calls) for an intangible act; however, the death penalty may have been too 27 harsh. I do not under-appreciate the seriousness of Mr. Bungle's crimes, but the virtual death penalty is the ultimate or most severe punishment available to cybersociety. To assign it to anything other than the most serious crime, such as murder, confuses the social priorities. While Mr. Bungle did attack, torture, and sexually abuse several victims, he--unlike Jake Baker--fell short of murdering them. It is not surprising that debates on the morality of the death penalty were played out on LambdaMOO--especially since virtual rape had not been criminalized by the time of the incident. To counter the anti-capital punishment concerns, the "toading" of personae on LambdaMOO was persuasively argued by some to be closer to banishment than decapitation. A "kind of turning of the communal back on the offending party" (Dibbell, p.248). But as I explain in the first part of the cybergovernance trilogy, an important condition of virtual existence is "visible presence." A user whose persona is banished from a virtual community remains outside the "boundary of existence" for his or her actions go "unnoticed" until finally "the memory of that existence is forgotten by the other users" (MacKinnon 1995, p.120). Since one's virtual existence depends upon substantiation by others (MacKinnon, pp.117-120), banishment from LambdaMOO is tantamount to death in LambdaMOO. If banishment implies being sent away, the rapid and discreet disposal of toaded individuals is a fairly close approximation of Mssr. Guillotine's transportation machine. The adjudication of Jake Baker While the people of LambdaMOO decided against notifying Mr. Bungle's university, Jake Baker's university was notified. As a result, the Baker case illustrates the legal challenge posed by "relationships between bodies and persona/selves/subjects, and the multiplicities of connections between them" (Stone 1995, p.86). As previously discussed, the coupling of the body and self makes any punishment of the self problematic for the body and vice versa. However, the relationship is just a coupling, not a merging nor an equation. Although the body is grounded in the self, it is not the self. The persistent relationship of the body with the self produces an identity known as a person which is the juridical or warrantable subject. The law must concern itself with warrantable subjects. For alleged virtual torture, rape, and murder, the body of Jake Baker, as the warrantable part of his coupled person, was arrested and charged by the United States for the communication of a threat to injure the "person of another." Further, for the same offense, the officials of the University of Michigan banned Baker's person from the campus for endangering the "health, diligence, and order of the students." Practically speaking, this particular federal law aimed at protecting the "person of another" is 28 really directed at protecting the "body of another." Afterall, being a physical component, the body is the more fragile component in the relationship. Theoretically speaking, the law is aimed at protecting the "person of another," but "another" what? Not "person," for that would be redundant. Surprisingly, even this awkwardly applied law seemingly recognizes the distinction between bodies and selves. The law was designed to protect the person of another self--not a body nor a self, but the two coupled together as a person. Given the nuanced wording of the federal law, it is a shame it was not applied with the same subtlety. Jake Baker's persona, not his person, allegedly committed illegal acts against Jane Doe's persona, not her person. Seemingly, the law is capable of making this distinction. Afterall, it recognizes the difference between personal bodies and corporate or business bodies. Nonetheless, it is not yet ready to recognize the distinction between computer-mediated personae and persons. This is reflected in the rough application of the statute which prohibits the communication of a threat between persons, not personae. If virtual rape is to be taken seriously, was this the best way to proceed? Why not apply Michigan's rape statute to Jake Baker? The government was not ready to move the law in this direction either. The case was dismissed because the government was unable to show Baker's person's intent to communicate the threat, further highlighting the distinction. Baker's persona's repeated assaults during the virtual rape and murder were clear indications of his intent in a computer- mediated environment, but his posting of a "sex fantasy" to a public forum and his minimal contact with the victim leaves his offline intent less clear. Was Baker's person threatening Jane Doe's person or was he making a fiction available for public comment? If he had wanted to threaten Jane Doe, why did he not use a more direct method? The question of Baker's direction gives rise to the proper direction of his punishment. The dismissal was the right adjudication, but arguably, the wrong jurisdiction. The federal government, nor the state, had a law which they were ready to apply to the actions perpetrated by a persona. Arguably, LambdaMOO did. Had Jane Doe sought justice in cybersociety, the outcome might have been different, especially in LambdaMOO. But Baker's alleged crimes were committed in the community of alt.sex.stories, a place with very different social priorities from LambdaMOO. It is unlikely that it would have been possible to secure a conviction there either. In alt.sex.stories, such activities as Baker's are not monolithically viewed as criminal. Similarly, discussions and plots of blackmail and murder are commonplace in another community called "alt.evil" (MacKinnon 1992, pp.43-48). In fact, Baker's "sex fantasy" was observed by thousands of spectators who congregate in that forum for that purpose. 29 Certainly, the actions of Baker's persona were of questionable taste even to that community's standards, but they did not violate any written or formal statute of conduct in the local context. This is not to say that everyone in "alt.sex.stories" supported his conduct-- afterall, someone turned him in. But like LambdaMOO, no formal system of jurisprudence existed for evaluating Baker's persona's actions. This would be more of a crisis for Jane Doe if she had a stake in the community of alt.sex.stories, but she was not aware of the actions taken against her persona until she was informed through third parties. Indeed, she may not have been aware of the community's existence at all. Given this, and her lack of intentional participation in the cybercommunity, it is arguable that Jane Doe did not have a persona to begin with. As a result, it seems that Jake Baker committed possibly permissible actions against his victim's persona which may not have been her persona at all. Was it all a misunderstanding? Repugnant to the standard of just adjudication, the questionable actions of his persona placed Baker's person under the scrutiny of an outside community. Like a rabbit- eater being judged by vegetarians, his persona's murderous acts were nearly judged by the people of a less tolerant village. Because they are coupled to a common self, Baker's arrest suggests that his persona and person are viewed as interchangeably, warrantable subjects. The ramifications of this view prompt serious concerns. Indeed, Stone (1995) suggests that as more people participate in computer- mediated environments, there will be more encounters with the problematic "relationships between bodies and persona/selves/subjects, and the multiplicities of connections between them" (p.86). Although the "neighboring village" let Baker go-- albeit for the wrong reason (they lacked sufficient evidence to prosecute him), the danger is quite clear when a person is held bodily accountable in one jurisdiction for non- bodily acts committed in another. Unlike Bungle, Baker's persona's actions were arguably permitted in the local context, yet Baker remains punished to this day. Despite the government's retreat, the University of Michigan still refuses to readmit him. This is a prime example of misadjudication and unjust punishment. Sentencing guidelines for virtual offenses Jake Baker never had his day in virtual court partly because formal jurisprudence had not yet arrived in alt.sex.stories--typical of a Usenet community which has barely emerged from the state of nature (MacKinnon 1995). This is not the case in LambdaMOO. My critique of Mr. Bungle's death sentence begins with the recognition that rape had not been criminalized on LambdaMOO by the time of the incident. This does not deny that the proscription of 30 rape might be found in LambdaMOO's common law. Indeed, the ensuing discussion attracted record participation--a possible indication that a general notion of rape existed and could be supported by a common law argument. Nonetheless, the crowd disbanded without a resolution. On that day, the lone actions of the wizard-executioner is evidence that "might makes right." LambdaMOO had not gone far out of the state of nature. Subsequent to the Bungle affair, LambdaMOO citizen Nancy (#57980) arbitrated the drafting of a ballot measure which attempted to formally criminalize virtual rape by defining it and setting a penalty. Entitled "Virtual Rape Consequences (#60535)," it states in part, "A virtual 'rape,' also known as a 'MOOrape,' is defined within LambdaMOO as a sexually-related act of a violent or acutely debasing or profounding [sic] humiliating nature against a character who has not explicitly consented to the interaction. Any act which explicitly references the non-consensual, involuntary exposure, manipulation, or touching of sexual organs of or by a character is considered an act of this nature. . . . "The effect of this petition is to set a guideline for the appropriate penalty resulting from a single proven act of rape in this community at permanent expulsion; that is, @toading of the perpetrator and @recycling of their character and any secondary characters, and refusal of additional character registration requests known to originate from that individual" (Nancy [#57980] 1994). By calling for "permanent expulsion," it asks for the most severe penalty available to LambdaMOO. Given his reincarnation, it is debatable whether Mr. Bungle's banishment was tantamount to a death sentence, but the expulsion described in this petition applies to "any secondary characters" or personae as well. Further, it refuses "registration requests" of additional personae known to originate from that individual. In other words, the proposed law would apply to all persona, present and future, grounded in the same self. For a non-lethal alternative to the death penalty, it is effectively far more comprehensive than most implementations of the death penalty in the physical world--gas chambers and lethal injections do not aspire to make guarantees against reincarnation. In the physical world, at least this much is placed in "God's hands." Toading and recycling enforced in this way are euphemisms for the ultimate penalty virtually possible in LambdaMOO. By definition, the described penalty is capital punishment. Also, this law is aimed at the self, not the persona. This violates the "proper direction" component of the standard of just adjudication and threatens to be as unjust to virtual rapists as the University of Michigan was 31 to Baker's person. Finally, this measure seeks to place rape among the most serious crimes possible because it assigns the most severe penalty available. As it happened, this placement was contentious. The measure was defeated, but approximately two weeks later a similar petition was presented to the community, "Sexual harassment (particularly involving unsolicited acts which simulate rape against unwilling participants). Such behavior is not tolerated by the LambdaMOO community. A single incidence of such an act may, as a consequence of due process, result in permanent expulsion from LambdaMOO. . . . "This petition makes no requirement on mediators that they recommend expulsion in every incident; if circumstances dictate, a lesser action may be designated. But if, after due consideration, the opinion of the mediator is that the situation was extreme enough to warrant expulsion, the effect of this petition is to confirm that the community thinks that expulsion is within the scope of reasonable penalties for an act of this kind" (Linnea [#58017], 1994). While still calling for banishment, its rationale and references to "lesser actions" and a "scope of reasonable penalties" embraces the spirit of the standard's requirement for a range of punishments. Further, the expulsion is less comprehensive than the one in the earlier measure because it does not have a reincarnation proviso. The voters approved this measure. Since the measure provides for banishment, it is possible to say that LambdaMOO communicates as a social priority extreme intolerance towards sexual harassment. The efficacy of virtual punishment The effectiveness of virtual punishment depends on how well its implementation brings the actions of personae into accordance with the social priorities of a particular community. It is not my intention to enter into the debate on whether the role of corrections is to punish, reform, or serve as a deterrent. These value orientations can be adequately reflected in the development of correctional strategies while still meeting the standard of just adjudication. Regardless of this orientation, the sanction must have bearing on something "universally" valued within the community such as "life and liberty." In cyberspace, life and liberty are experienced by way of free and frequent communication among personae (MacKinnon 1995, pp.117-120). According to Tamir Maltz (1996), virtual punishment must therefore involve "controlling and disrupting the communication of others." In this way, efficacy is possible in cybersociety. Based on the analysis of these measures alone, it seems that a range of "reasonable penalties" can exist in 32 LambdaMOO to reflect the relative seriousness among crimes, and thereby clearly communicate the social priorities. While most of the discussion has focussed on the upper ranges of punishment, not much has been said about the lower ranges. Jennifer Mnookin (1996) notes that the current LambdaMOO implementation of toading varies from other cybercommunities where it is still "an unpleasant but far from fatal form of punishment in which the character's description is changed into that of a warty toad." Mnookin also notes that other punishments intended to humiliate include parading someone around or confining the persona in a public place. LambdaMOO effects a variant of the latter with temporary expulsion called a "time out box." Finally there is the "loss of quota" which is represents the forfeiture of limited resources. The classification of virtual penalties deduced from the preceding analysis extends from humiliation to death and corresponds with a basic structure perennially observed by anthropologists while conducting ethnographic research in representative societies (Brown 1952). As I have shown that there are degrees of banishment, so too are there degrees of humiliation. While toading-as-transformation or public display may be the most severe form of humiliation, the forfeiture of property or status may constitute examples from the lower ranges. Precision is difficult because punishments are perceived differently in different local contexts--as in the ineffective spanking of masochists. In view of this, it is still possible to sketch out a hierarchy of general classifications which may serve as sentencing guidelines. 33 General Physical world Some virtual classification implementations implementations divine retribution torture; sorcery, symbolic hexes and voodoo, hexes, and curses; virtual curses divinity; contacting a university or the police? deprivation/denial death penalty, comprehensive /termination of e.g. by guillotine banishment existence (reincarnation proviso), e.g., toading and recycling of present and future personae deprivation of imprisonment temporary participation banishment; LambdaMOO's "time out box" or imprisonment deprivation of demotion; public toading-as- status display, e.g. by transformation; pillory loss of wizard status; being paraded around deprivation of fines and seizures loss of quota on property LambdaMOO; loss of objects Figure 2. A Hierarchy of Punishment and Sentencing Guidelines The purpose of the general classification is to propose the hierarchy of culturally-relevant punishments as it is understood in LambdaMOO. The general classification of punishments is intended to encompass the range of what is valued in LambdaMOO and the top-down ordering is intended to show the relative value among the classifications. Note that this is not an authoritative ordering of value within LambdaMOO. Nor is it a universal hierarchy because the relative values of status and property, for example, vary from culture to culture. Indeed, even the significance of 34 death is culturally determined. Further, the role of divine retribution may not be significant at all. The precise ordering of value is left to justice practitioners within their respective cyber-communities. Some examples of physical world punishment do not easily fit into this proposed hierarchy, such as mutilation or dismemberment, unless they are adapted to the local context. Given the construction of virtual bodies, such punishments would have to be reconceived as targeting participation, status, or even property. The loss of an arm or a leg can be viewed in this way in the physical world as well. I have placed divine retribution at the top of this hierarchy because the threat of involving "the outside" in correctional matters is always looming. The earlier discussion of the user-as-soul vis a vis the persona makes possible the notion of literally appealing to a higher authority. Yet, such a recourse violates the local context preservation component of the standard of just adjudication. A divine appeal is misunderstood as such if it is _actually_ a hotline to the heavens. To meet the standard, it is possible to conceive of virtual divinity bearing the same relationship to cybersociety as does the offline world to its deities. While this general classification and the implied sentencing guidelines are derived from the socio-cultural priorities of LambdaMOO, a similar model may be constructed for any virtual community to assist with the development of punishments which meet the standard of just adjudication. CONCLUSION In short, it seems that virtual punishment can be an effective means for controlling the behavior of personae in virtual communities. It obviously depends upon the personae having a "stake," for example, the pursuit of "life and liberty." This stake is typically safeguarded by belonging to a community which secures these values by way of emergent or formal governance. Further, the stake may be additionally protected by establishing a jurisprudence which adheres to the standard of just adjudication. This standard requires the evaluation of suspect actions in their local context, the preservation of the local context by the proper direction of punishment, and the establishment of a range of punishments appropriate to the local context and reflective of the relative seriousness of possible crimes. The privileging of the local context is a normative requirement. Stone writes, "I want to see if cyberspace is a base camp for some kinds of cyborgs from which they might stage a coup on the rest of 'reality'" (1995, p.39). While not as radical, I had a similar vision for cyberspace while researching the _Usenet Leviathan_ (MacKinnon 1992), but to articulate it in late 1991 would have put me far out on the limb of academic credibility. Fortunately, others have 35 since joined the base camp. Just four years later after I observed Usenet's emergence from the state of nature, John Perry Barlow (1996) declared cyberspace's independence, "Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of the Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty here. . . ." But perceiving of the development of cyberculture as formations of emergent states or the birth of a cyber-nation is the subject of much criticism. Geert Lovink and Patrice Riemens (1996) are among the scholars in the "net criticism" movement whose main point is to remind us of the relationship that binds "netizens" to the mortal and vulnerable bodies in an increasingly dangerous and unfair world. The reality of the "digital third world" is one not to be taken lightly. Perhaps a reconciliation of these concerns causes some scholars to liken virtual communities, such as LambdaMOO, to a "role-playing game" (Mnookin 1996). As opposed to being a village in a cyber-nation, Mnookin argues that the role-playing game metaphor avoids the complexity of overlapping, multiple legal jurisdictions. This approach seems to be particularly attractive when one wishes to confine personae's legal recourses to the rules of the game, but it is unsatisfactory when dealing with those situations when the "real world" intrudes into the game. Ironically, this was the case when the prototypical role-playing game, Dungeons and Dragons, was blamed for the bizarre behavior of its players. This point aside, how much of one's day does someone have to spend playing a game before it is fair to call it a "life"? How deep does a relationship with another player have to be before he or she can be called a spouse? How much money and respect must be earned before it can be called a profession? How much does it have hurt before it can be called pain? Calling the interaction within LambdaMOO a game does not do justice to these questions. Perhaps, as more people spend more time in cyberspace, some jurisdictions of the physical world will retreat a little, just as they have left the arbitration of "defensive holding" to the National Football League, the execution of Mr. Bungle to LambdaMOO, and the governance of souls to "the church." NOTES 1. In this section, I deliberately shift from the formal academic style of citation with regard to the soul. An attempt to present a comprehensive survey of the literature and authorities in the relevant fields seems pretentious in this case. For every person persuaded by the psychological approach, for instance--and there are many approaches--there 36 is another who is unmoved. As much as I would be tempted to cite traditional religious texts, I am equally inclined to cite material published by the Rosicrucians. When it comes to the soul, it may be an omission to leave out references to certain types of music, art, and poetry. If it is possible to give the subject the care that it deserves, even a summary would certainly require more space than I have been allotted. As a result, I have decided to allude, rather than to cite. I trust that my discretion in this matter will judged in this light. 2. I recognize that the word "patient" may have an archaic connotation referring to passivity as opposed to the modern usage in my analysis. REFERENCES Baker, J. 1996. Pamela's Ordeal. Available electronically as http://www.eff.org/pub/Legal/Cases/Baker_UMich_case/bake r.story Barlow, J. 1996. A Declaration of the Independence of Cyberspace. Available electronically as http://www.portal.com/~spartan/archive/cybermind.0196/16 36.html Benedikt, M. 1991. 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