Altering Prisoners’ Sense of Time: The Moral Regression of a Futuristic Technology

By Caroline Thiriot

What if you could give a prisoner a pill that changed their perception of time? A 10-year sentence could feel like millennia. Or a person could experience a 10-year sentence in two years.

Science has already brought us to the brink of this technology. In a paper published in the Journal of Neuroscience, the nature of time perception is outlined and science seems to conclude in favor of Kant’s “subjective” and “ideal” view of the matter. Indeed, “[o]ur perception of time constrains our experience of the world and exerts a pivotal influence over a myriad array of cognitive and motor functions.” (emphasis in the original). The result of the study demonstrated “anatomical, neurochemical, and task specificity, which suggested that a neurotransmitter called GABA (Gamma-Amino Butyric Acid) contributes to individual differences in time perception”. With this increased understanding of how we perceive time, perception altering medications may follow.

Psychoactive drugs could be used to distort the prisoners’ perception of time and make them feel like they were serving a 1,000-year sentence, which is legally available in the United States. As detailed in Slate and Aeon, philosopher Rebecca Roache is undertaking a thought experiment to explore the ethical issues involved in using perception altering drugs and life extension technologies in the corrections context.

Medical and scientific advance could change the way prisoners serve time and dramatically alter our prison system. As for an economic purpose we could imagine that prisoners would physically spend one day in prison while they would psychologically experience it as lasting x years. Considering the high costs of prisons, psychoactive drugs could thus be a solution to save money. However, the risk benefit ratio does not seem to be favorable at all.

There already are cases where perceptual distortions such as “disorientation in time” can occur, we can relate to the practice of solitary confinement. “There is long history of using the prison environment itself to affect prisoners’ subjective experience,” highlights Rebecca Roache. On October 18, 2011, Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez presented his thematic report on solitary confinement to the United Nations General Assembly. He called on all countries “to ban the solitary confinement of prisoners except in very exceptional circumstances and for as short a time as possible, with an absolute prohibition in the case of juveniles and people with mental disabilities.” He stressed as well that “Solitary confinement is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system.”

Two points made in the statement above are worth being further discussed. First, we will address the issue of torture and other cruel, inhuman or degrading treatment or punishment. Then, we will focus on a more philosophical controversy: the aim of the penitentiary system.

Torture is universally condemned. The prohibition against torture is well established under customary international law as jus cogens as well as under various international treaties such as the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment ratified by 136 countries (including the United States in 1994). Even if the effects of perception altering drugs have not been studied yet, we can relate to those of solitary confinement to some extent. Indeed, one can picture the subject whose time perception is altered as experiencing another reality than the one commonly experienced. Thus, as the physically isolated prisoner, it seems to be reasonable to conclude that this subject will be deprived of normal human interaction and may eventually suffer from mental health problems including anxiety, panic, insomnia, paranoia, aggression and depression. In addition to the mental health risks, there exist physical health risks as well because the needs for sleep or food may be perceived differently.

As for the aim of the penitentiary system, several questions arise, especially concerning rehabilitation and recidivism. Some authors argue that prisons should be abolished and replaced by “anti-prisons,” that is, locked, secure residential colleges, therapeutic communities, and centers for human development. Indeed, nowadays it makes no doubt that punishment fails and rehabilitation works. From such perspective, altering prisoners’ time perception in order to make them feel like they spend more time in jails could thus be seen as a step backwards instead of a progress. According to the American Correctional Association (ACA) 1986 Study of prison industry, there are three categories of contemporary prison institution goals. Those are offender-based (good work habits, real work experience, vocational training, life management experience), institution-oriented (reducing idleness, structuring daily activities, reducing the net cost of corrections) or societal (repayment to society, dependent support, victim restitution). If such technology was implemented, most of these goals would not be completed. On the opposite, it appears we would instead go back to an era when solitary confinement was thought to foster penitence and to encourage reformation, but in a rather extreme form causing more harm to the individual possibly to the extent of mental illness.

The Eighth Amendment states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Professor Richard S. Frase has analyzed constitutional proportionality requirements. He noticed that since 1980, the Supreme Court has ruled in favor of the prisoner only once out of the six cases in which the duration of a prison sentence was attacked on Eighth Amendment grounds. Even if “The Court has never made clear what it means by proportionality in the context of prison sentences. Justice Scalia believes (and perhaps so does Justice Thomas) that this concept only has meaning in relation to retributive sentencing goals,” he concludes. When it comes to sentencing goals, one should thus distinguish retributive goals from non-retributive. While the first theory considers only the defendant’s past actions and focuses on the punishment itself, the second one (also considered as “utilitarian”) takes the future effects of the punishment into account. On the basis of such distinction, one must conclude that the possibility of making prisoners feel like they were spending a very long time in jails would only serve a retributive purpose and would absolutely fail at addressing the non-retributive ones.

Also, we live in a society in which, if individualism seems to be the supreme rule, interdependence remains a governing concept. To the question “What else can matter to us, other than how our lives feel from the inside?” Robert Nozick asks in this famous “Experience Machine,” he concludes that, dealing with pleasure, we would rather choose the everyday reality rather than an apparently preferable simulated reality. Despite the fact his thought experiment deals with a notion that is opposite to punishment, we can rely on the conclusion that the reality we commonly experience matters more than our subjective experience of it. As a consequence, one should not forget that the victim’s subjective perception of justice matters as well. Therefore, it may appear difficult for them to know that a criminal is out of jail after having spent a little time there and is able to enjoy the rest of their life free. Even if we only focus on retributive goals, such technology seems to have subjective limitations.

In the end, there seems to be no argument but the economic advantage for allowing the use of such psychoactive drugs able to distort the prisoners’ perception of time. On the contrary, it can be seen as torture and does not serve any rehabilitation aim, which is the main focus of prison sentences nowadays. The use of such technology would therefore appear to be regressive rather than progressive.

Caroline Thiriot, who has a Master’s in International Law and Human Rights from the Université Panthéon-Assas and an LL.M. in international and transnational law from Chicago-Kent College of Law, is currently a Master’s student in Bioethics at Université Paris Descartes.

Fake News: A Little White Lie or a Dangerous Crock?

Blog Photo CroppedBy Michael Goodyear

Since early November, press coverage on the problem of fake news stories has exploded.  These fake stories have included everything from the Pope endorsing Donald Trump to a woman stealing 24 dogs from an animal shelter. While they may seem harmless enough, the impact of people releasing such stories can range from simple confusion to active violence.

But what happens when the police create fake news? Even if it is well-intended, police dissemination of fake news can lead to a series of consequences, such as negative impact on neighborhoods, increased danger for citizens, violence, and distrust.

A few days ago, the Santa Maria Times uncovered a fictional news release in court documents, ten months after it had reported the same story as fact. The news release stated that two cousins, Jose Santos Melendez and Jose Marino Melendez, had been taken in for identity theft and were now in the custody of immigration authorities. It seemed like a simple report; in actually, it was part of an elaborate, but deceitful, plan—not by crooks, but by the police. .

The Santa Maria Police Department had been running Operation Matador for months at this point. The police had been eavesdropping on members of MS-13, a dangerous international gang, in the goal of eventually arresting gang members. Through wiretaps, they learned that MS-13 planned to murder the Melendez cousins. This raised a new issue: if they acted to save the two cousins, their operation would be exposed and the progress of the past months would be lost. A fake news story could solve this problem. The police took the Melendez cousins into hiding for their safety while the fake news story provided a cover, explaining the disappearance of the Melendez cousins without arousing suspicion and also protecting the cousins’ family, which might have been harmed by MS-13 if they believed the cousins were merely hiding.

In the following weeks, the police brought Operation Matador to a successful conclusion: 17 gang members were arrested on charges of murder and intent to kill in March. In July, a criminal grand jury indicted all 17 of them on a combined 50 felony counts. Lives were saved and gang members were successfully arrested, so what is the problem?

Whether well intentioned or not, fake news can have real consequences. By releasing false information about crime or police action, the police alter public perceptions of their community. If the police falsely report a crime in one neighborhood to divert attention from another, that reported neighborhood will seem more dangerous to the populace, even though in actuality the stated crime didn’t occur there.  This could lead to a downturn in local business and desire to live in that neighborhood. It would also make the neighborhood where the crime actually happened seem better in the eyes of the unwitting public, who might go to that neighborhood despite the dangers it could present.

Similarly, reporting that a crime has been solved, while in fact it has not, would also alter the public’s perceptions and possibly their actions. For example, the police could falsely report that they had solved crimes or reduced crime rates in a neighborhood in order to improve confidence in the police and intimidation of criminals. But it could also make people unreasonably more confident in the safety of an area, causing more people to go into what in actuality is still a dangerous neighborhood.

In addition, reporting that a crime has been solved when it has not could lead to greater violence or harm the police’s chances of actually solving the crime. For example, saying that the police have uncovered information about a crime or solved a crime when they haven’t could lead a perpetrator to harm those whom he thinks may have informed the police about him. It could also cause the perpetrator to flee the area to avoid arrest.

The police making it seem like crimes are being committed when they actually aren’t could also lead to harmful individual action. For example, earlier this week a fake conspiracy theory that Hillary Clinton was operating a child sex ring from Comet Ping Pong, a popular Washington, D.C., pizza parlor, led to a vigilante action. Edgar Maddison Welch decided to go investigate “Pizzagate.” Inside the restaurant, he fired a shotgun, damaging the interior of Comet Ping Pong but not injuring anyone inside. Although bloodshed was adverted in this case (Welch surrendered peacefully when he found no sign of the fabricated child sex ring), fake news undoubtedly put people’s lives at risk.

Although the Pizzagate example was not caused by the police, the police reporting fake crimes could lead to similar results: vigilantism and violence. As CNN aptly put it in regards to Pizzagate, “fake news, real violence.”

Fake news also harms our collective knowledge and our ability to tell truth from lie. While any piece of fake news has the potential to mislead and harm others, the police releasing such a story is especially harmful to our trust. We look to the police as honest defenders of justice; releasing fabricated stories undermines that, duping the public and the press as well as the suspect. As Louis Dekmar, vice president of the International Association of Chiefs of Police, pointed out, such ruses create “a real distrust between the police and the folks we rely on.” Such a lack of trust undermines the relationship between police and the community, and, according to the Department of Justice, trust is one of the key factors in maintaining public safety and effective policing. Although fake lures are often used in sting operations, such as fake prizes, fake news on this scale is unprecedented.

Although police use of fake news may be rare, the police have a widely-used precedent for faking: fake Facebook profiles. Cops across the country have created fake Facebook profiles to uncover more information about suspects and even help track them down. For example, back in 2009 the police created a fake profile picture of an attractive young woman and friended Adam Bauer, a 19-year old college student, to access pictures of him drinking that were posted on his account, later ticketing him for underage drinking.

And even though Facebook officially bans the practice, a federal judge ruled back in 2014 that cops can create fake social network profiles for investigative purposes. The Department of Justice even said that police usage of fake Facebook profiles is ethical. Yet this is at odds with the Department of Justice stressing the importance of trust between police and the community. Bauer and other college students that were charged with underage drinking through photographic evidence from Facebook stated that the fake Facebook profiles undermined trust between college students and police.

This mostly likely will not be the last time the police fake a news story. In regards to the fake news story in Operation Matador, Ralph Martin, the Santa Maria police chief, defended the tactic, even saying he would not rule out releasing a fake news story again in order to protect lives. But given the risks with fake news, in general and especially when the police are behind it, such a tactic could have much more costly ramifications than predicted.

Michael Goodyear, who has a BA in History and Near Eastern Languages and Civilizations from the University of Chicago, is part of the ISLAT team.

The Need for Speed: When Apps Inspire Dangerous Behavior

Photo for ISLAT 1-croppedBy Nadia Daneshvar

Mobile apps may be designed with good intentions, but what happens when those aims lead to dangerous user behavior? This is the case for Strava, a popular cycling app whose promotion of speed led to deadly consequences and spurred new questions regarding the responsibilities of app developers.

Strava lets users record cycling data using a smartphone or GPS device and upload that information to track, analyze, and share with friends or the public. The app records where cyclists rode and how long and how fast they rode. It then compares a user’s times with personal records as well as the fastest times of other users.

The app also tracks a cyclist’s performance on “segments”—any stretch of road, path, or trail mapped out by a user for the purpose of a multiplayer competition of who can go the fastest, whether up a hill, down the street, or on a descent. Strava compares each user’s times on a particular segment to the times of everyone else who has ridden it before and uploaded the data to the app. The fastest riders are given the title “King of the Mountain” (“KOM”) or “Queen of the Mountain” (“QOM”).

Although the app may record data virtually, the cycling and decisions of users are very much in the real world. A Strava employee admitted that Strava does not account for safety, danger, stop signs, speed limits, or the fact that in order to beat certain KOM records, users would have to break the law. But, after at least three people have died in incidents related to the Strava app, perhaps we should expect Strava app developers to account for such factors, adjusting app design to comply with the realities—including the laws and regulations—of the real world.

On June 19, 2010, William “Kim” Flint, Jr., an avid Strava user, died after he hit an SUV while speeding downhill on a Strava segment on South Park Drive, the steepest road in the East Bay area of San Francisco. Flint had learned that his record was taken by another rider shortly before the accident, and Flint had set out to reclaim his KOM title when he hit the car. He was going too fast to stop.

Despite this incident, in 2012 Strava began fueling even more competition, sending alerts notifying users that their record was broken: “Uh oh! [another Strava user] just stole your KOM….Better get out there and show them who’s boss!” Since then, they changed the message to: “Uh oh! [another Strava user] just stole your KOM….Get out there, be safe and have fun!”

On March 29, 2012, Chris Bucchere was tracking himself using Strava while riding a segment known as the “Castro Bomb” when he hit and killed a pedestrian, 71-year-old Sutchi Hui, who was crossing the street with his wife. According to Bucchere, as he entered the intersection where he hit Hui, he was “way too committed to stop.” According to a witness, “he crouched down to push his body weight forward and intentionally accelerated,” milliseconds before hitting Hui. Bucchere was charged with a felony for vehicular manslaughter. He later pled guilty.

On September 18, 2014, Jason Marshall, an avid Strava user, hit and killed a pedestrian, Jill Tarlov, in Central Park as he was illegally speeding downhill in lanes reserved for pedestrians and child cyclists. According to a witness, Marshall did not stop or slow down at all, but instead yelled to Tarlov to “Get out of the way!” Hours before the accident, Marshall had recorded 32.2 miles of cycling in Central Park, with his highest speed at 35.6 MPH, which is over the 25 MPH speed limit for bikes in Central Park. Marshall had fastidiously recorded every one of his previous rides that year—yet there was no Strava record of his ride that fateful afternoon.

What can be done to avert such tragedies?

Education

Educating the general public about these tragic examples of light-hearted biking gone wrong could help reduce them. The day after Tarlov’s death, Bike Snob NYC launched a “#noStrava” hashtag on Twitter as a “gesture of respect” to Tarlov’s family, arguing that Strava shamelessly capitalizes on cyclists’ competitive inclinations.

Take away the leader board

Strava’s leaderboard is what gives rise to the spirit of competition that has arguably contributed to all of these tragedies. Furthermore, Strava’s arrangement of the cycling data on the leaderboards is problematic. As Suffolk University’s Professor Michael Rustad noted: “[I]t’s like Strava is creating a drag race. [Strava is] not just posting what third parties do—they’re organizing it…. Its [undifferentiated-skill-level] leaderboards are comparable to taking people from the bunny slopes up to the black-diamond run. Even ski trails are marked by degrees of difficulty.”

Legal action against the rider

Some might also consider taking legal action against the rider. As noted, Bucchere was charged with a vehicular manslaughter felony. Additionally, the Huis brought a civil suit against him (which was later dismissed). This approach might make riders think twice before risky riding, nudging them to consider the legal and moral consequences of their actions.

Legal action against the developer

The parents of Kim Flint filed a wrongful death suit, deciding that “enough is enough.” In the complaint, they claimed Strava was negligent, and “breached their duty of care by: (1) failing to warn cyclists competing in KOM challenge that the road conditions were not suited for racing and that it was unreasonably dangerous given those conditions; (2) failing to take adequate measures to ensure the KOM challenges took place on safe courses, and (3) encouraging dangerous behavior.” The complaint went on, “It was foreseeable that the failure to warn of dangerous conditions, take safety measures, and encourage dangerous behavior would cause Kim Flint Jr. to die since Kim Flint Jr. justifiably relied on [Strava] to host a safe challenge. Had [Strava] done the aforementioned acts, Kim Flint Jr. would not have died as he did.”

The Flints’ lawyer argued: “The danger and harm alleged in this case originates out of Strava’s own actions in…manipulating it through its designed software into leaderboards, and then using those leaderboards to encourage cyclists to race at increasingly faster speeds for awards and titles.”

Strava’s attorneys based their argument for the case’s dismissal on the principle that Flint explicitly assumed the risks implied in cycling by agreeing to Strava’s terms and conditions when he joined the network. Strava’s terms and conditions stated: “In no event shall Strava be liable to you or any third party for any direct, indirect, punitive, incidental, special or consequential damages arising out of or in any way connected with… your use of the site.” The case was eventually dismissed on these same grounds.

All three of these deaths received attention from news sources across the country, with writers and the public wondering how this could have happened. Even those changes that Strava made since the deaths in 2010 and 2012 did not fix the problem. Although the Flint case may have been dismissed, Strava has played a role in the promotion of risky and illegal behavior. But where exactly the line lies between user agency and developer responsibility remains to be determined.

Nadia Daneshvar is a former ISLAT Fellow, and is currently a second-year student at The George Washington University Law School.

Poképrivacy: Privacy and Legal Issues in Pokémon GO

Blog Photo CroppedBy Michael Goodyear

When Pokémon GO was released in the United States on July 6 it garnered 15 million downloads in just the first week. Pokémon GO has rapidly become one of the biggest apps ever. Its daily active user total has now outstripped Twitter and on current installs it has beat most other popular mobile app games. But despite its quick rise to fame, Pokémon GO has raised a series of concerns about privacy, from what permissions and personal information the app itself accesses to how the app potentially infringes on personal residences.

Pokémon GO is an augmented reality game that inserts virtual imaginary creatures, Pokémon, onto the physical world via your phone. They can appear anywhere, even on your wife’s hospital bed as she is giving birth. The goal is to catch and train Pokémon as part of one of three teams.

Privacy concerns abound with Pokémon GO, even attracting the attention of Senator Al Franken, the Ranking Member of the Senate Judiciary Subcommittee on Privacy, Technology and the Law. The chief initial concern with Pokémon GO was that iOS users had granted “full access” to their Google accounts. While technically this could include being able to see the contents of Gmail and all other Google programs, in reality Niantic, the company that developed Pokémon GO, only accessed basic account information, such as the name of the user and their Gmail address. More than anything it was a combination of Niantic using an out-of-date version of the Google sign-in process and poor wording that led to this seemingly alarming concern. Niantic has since made an update that fixed this problem, with the app now only requesting access to basic information.

Although this problem has received by far the most press, there are other legitimate concerns about how Pokémon GO handles privacy. The app itself has access to your IP address and the most recent webpage you visited, providing some indicators about your location and habits. In addition, the app tracks your GPS location and has control over your camera. While these are essential to using the app, just consider the possible implications if some third party acquired this data. Unless Niantic’s security is ironclad, there is always the possibility that hackers could get this information and have access to your phone. And with an app as huge as Pokémon GO, hackers will definitely be on the lookout.

Others with malicious intent have already started taking advantage of the app’s security shortcomings. A function of the app is that you can create a beacon, which attracts more players and Pokémon to an area. This has been a hotbed for muggers taking advantage of unsuspecting players. Muggers have used the beacons to lure in players and rob them. Police departments from O’Fallon, Missouri to Australia have expressed their concern over the security risks the app creates, especially when players are paying so much attention to the virtual surroundings on their phone that they are not aware of their physical surroundings.

In addition to beacons created by the players, Niantic itself has created virtual Pokémon gyms, basically battle hubs for players to come and play against other teams for control over the gym and win the accompanying prestige, across the globe. Naturally this makes them fairly popular spots. For this reason, Niantic generally locates the gyms at popular sites, although this occasionally goes awry, from the controversial (Trump Tower and the Westboro Baptist Church) to the just plain dangerous (on the South Korea-North Korea border). And sometimes it even registers people’s homes as gyms. Now, it is not as though Niantic asked the permission of Donald Trump or Boon Sheridan to put a gym on their property, but of course the gym itself is a virtual entity, albeit one with very real consequences. As major draws to players, gyms can attract dozens to hundreds of people, infringing on the privacy and peace and quiet of individuals and businesses. And this brings up a host of legal trespassing issues and questions of attractive nuisances that are bound to be raised, all for the benefit of trying to catch a rare Pokémon.

So while players are battling with their captured Pokémon, they also have to be on the defensive. Mind property laws and don’t infringe on real estate, and protect your privacy and safety, or else it might be your information being captured instead of the Pokémon.

Michael Goodyear, who has a BA in History and Near Eastern Languages and Civilizations from the University of Chicago, is part of the ISLAT team.