Culpability in the Modern World

I just watched the C-SPAN presentation of the SCOTUS oral arguments for
the case involving Twitter and how they handled accounts (perhaps)
associated with ISIS members. I was horrified to discover that the legal
counsels who argued there were incapable of defining what is legal and
what is not or why this or that behavior should be legal or illegal. As
one of them said, the current law is based on ancient tort law
(originally related to personal injury) which has existed a very long
time. Yet today, they are confused and kept saying, "It depends". I'm
still stunned to consider the ramifications of that.

Imagine several different possibilities: a person directly commits an
act which is violation of the law or a person gives a gun to someone who
uses it to murder or someone gives money to a person who buys a gun and
gives it to a person who commits an armed robbery with it or a person
who offers bookkeeping services to someone who is married to a
professional burglar making money by selling stolen goods. There is
direct action where culpability is pretty well established by the action
and the intent and knowledge that it is a violation of the law. There is
then a wide range of possibilities at some distance (in space, time, or
other ways) from the criminal act. Where in that distance do we say
someone is to some degree culpable for the criminal act to which they
(somehow) contributed?

Twitter, or as the Justices hypothesized the Ma Bell phone company
(Alito hypothetical) or a pager system (Thomas hypothetical) or a fence
or a bank or an Internet platform, are at various arms length distances
from a crime. They may know of the crime. They may know of some
organization to which their customer is involved (drug gang, terrorist
organization, mafia, etc.). They may give direct assistance for a crime
such as an explosive, a gun. They may give assistance related to the
crime, such as information about security guard schedules, a building
plan, etc. They may only provide the kinds of service they give to the
general public: internet access, banking, communications, taxi service,
trucking rentals, etc. How close to the crime does their assistance have
to be to be considered substantial aid and abetting? These form a matrix
which boggles the mind.

A key question I don't believe they discussed fully was the necessity
the question of who is to police the "bad guys". Is it only the military
or police or is it the grocer who sells food to the local career burglar
or the taxi driver who transports known gang members around town? Maybe
it's everyone's job to label people as "criminal" or "known member of a
criminal enterprise".

In short, where do we draw the lines. I kept hearing lawyers saying,
"maybe", "it depends", "considering all the factors", "it's complicated"
and I began to wonder if these people have a clue about the law and how
we are to have Civilization with such murky understanding.

Because the SCOTUS Justices as a group are a bit smarter, they may come
up with a ruling which settles these issues, but I am not comforted by
the oral arguments. They may open the door to legalizing many kinds of
activities or of turning all of society into police but with no real
official powers or limits. Right now as I see it we have a coin's toss
chance of losing either way.