Re: Are booby-trapped... [Detailed treatment]

[Black Unicorn <unicorn@access.digex.net>]

From tcmay@got.netWed Sep  6 00:30:39 1995
Date: Tue, 5 Sep 1995 20:49:25 -0700
From: "Timothy C. May" <tcmay@got.net>
To: cypherpunks@toad.com
Subject: Are booby-trapped computers legal?


(I've changed the name of this thread.)

At 2:30 AM 9/6/95, Lucky Green wrote:

>>I am wondering about the legalities of booby trapped computer 
equipment.
>>Would it be legal if a clear warning to the fact was posted on the
>>hardware?

>There are two types of "booby traps" to consider:

>* Type 1 Booby Trap: a shotgun is placed inside a home, set to fire if 
>and when a burglar enters. Or an electrified region of a room is set to 
>"get energized" when an intruder enters. These are "surprises" and are 
>canonical booby traps.

>These have been found to be illegal in several court cases. (I'm not a
>lawyer, but I've been reading about them for 20 years. Famous cases 
>where a burglar sued, and won, because he was injured when breaking 
>into a house.)

Katko v. Briney, 183 N.W.2d  657  (Iowa 1971).

The defendants owned an old, boarded-up house, located several miles 
from their home, in which they stored various old bottles, fruit jars 
and the like, which they considered to be antiques.  Several times 
during the previous several years the windows in the house had been 
broken and the entire place "messed up."  The defendants first posted 
"no tresspass" signs to keep off intruders, but the break-ins continued.  
Shortly before the injury to the plaintiff, the defendants placed a 
"shotgun trap" in one of the bedrooms.  The gun was first positioned so 
as to hit an intruder in the stomach, but Mr. Briney, at his wife's 
insistance, lowered it to hit at the legs.  He said that he set the gun 
"because I was mad and tired of being tormented," but insisted that "he 
did not intend to injure anyone."

The plaintiff was shot in the legs and permantly injured when he entered 
the defendant's bedroom shortly after the gun was set.  He had been to 
the place several times before, and had intended upon this occasion to 
steal some of the defendant's possessions.  The plaintiff pleaded guilty 
to a charge of larceny and paid a fine of $50.  He also sued the 
defendant for personal injuries and was awarded $20,000 in actual 
damages and $10,000 in punitive damages.

[Jury instruction #6 was one of the items at issue in the appeal to the 
Iowa Supreme court]

Instruction 6 stated: "An owner of a premises is prohibited from 
willfully or intentionally injuring a tresspasser by means of force that 
either takes life or inflicts great bodily injury and therefore a person 
owning a premise is prohibited from setting out "spring guns" and like 
dangerous devices which will likely take life or inflict great bodily 
injury, for the purpose of harming tresspassers.  The fact that the 
tresspasser may be acting in violation of the law does not change the 
rule.  The only time when such conduct of setting a "spring gun" or a 
like dangerous device is justified would be when the tresspasser was 
committing a felony of violence or a felony punishable by death, or 
where the trespasser was endangering human life by his act."

[Upheld on appeal]

Note that the case caused a literal riot in Iowa.  Checks poured in to 
the Briney's (the boobytrappers) from everywhere (by one account, even 
from prisons).  They raised over $10,000 this way.  Briney was heard to 
comment: "They used booby traps in Viet Nam didn't they?"  Asked if he 
would do it again:  "There's one thing I'd do different, though, I'd 
have aimed that gun a few feet higher."  Reference is given to a front 
page story in the Chicago Trib. of April 25, 1975.

See also, Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237 (1951).
[Plaintiff could collect damages when he was injured by a booby trap 
consisting of two sticks of dynamite even though he was feloniously 
breaking into defendant's warehouse with intent to steal.]

Some states allow a criminal liability, even of homocide, to landowners 
installing booby traps.

The basic rule today in most states resembles the restatement position:

Section 85.  Use of Mechanical Device Threatening Death or Serious 
Bodily Injury.

The actor is so far privileged to use such a device intended or likely 
to cause serious bodily harm or death for the purpose of protecting his 
land or chattels from intrusion that he is not liable for the serious 
bodily harm or death thereby caused to an intruder whose intrusion is, 
in fact, such that the actor, were he present, would be privileged to 
prevent or terminate it by the intentional infliction of such harm.

Some states have deviated from Section 85, however, California included.

People v. Caballos, 12 Cal. 470, 526 P.2d 241, 116 Cal. Rptr. 233 
(1974).  "It seems clear that the use of such [mechanical] devices 
should not be encouraged.  Moreover, whatever may be thought in torts, 
the [Restatement] rule setting forth an exception to liability for death 
or injuries inflicted by such devices 'is inappropriate in penal law for 
it is obvious that it does not prescribe a workable standard of conduct; 
liability depend on fortuitous results.'  (i.e. what the trespasser was 
doing in there in the first place)

What constitutes reasonable force is generally a question for the jury.  
Some exceptions exist.

When the invasion is peaceful, and in the presence of the possessor, the 
use of any force at all will be unreasonable unless a request has been 
made to depart.  Chapell v. Schmidt, 38 P. 892 (1894) (Defendant caned 
elderly person who was picking flowers); A request need not be made 
however when conduct of the intruder would indicate to a reasonable 
person that it would be useless or that it could not safely be made in 
time.  See Higgins v. Minagham, 47 N.W. 941 (1891).

>* Type 2 Booby Trap: electrified perimeter fences. So long as these are
>adequately marked ("If you touch this fence, you will probably die"), 
>and are not public nuisances where children and pets will inadvertently
>validate Darwin's theory, these are--I think--legal. There may be 
>license fees required, to build an electrified fence, but I think it is 
>possible to build a lethal voltage electrified fence on one's property.


While clear notice of the danger of deadly force is a partial defense to 
criminal and civil liability in some states, (Starkey v. Dameron, 21 
P.2s 1112 (1933) [Colorado] State v. Marfaudille, 92 P. 939 (1907) 
[Washington State]) and implicit or constructive notice in others 
(Quigley v. Clough, 53 N.E. 884 (1899) (Presence of barbed wire may 
constitute notice of deadly or injurious force)), some prohibit it 
outright, notice or not (State v. Plumlee, 149 So. 425 (1933) [La.]

An obnoxiously exhaustive treatement of the entire subject can be found 
in Bohlen and Burns, The privilege to Protect Property by Dangerous 
Barriers and Mechanical Devices, 35 Yale L.J. 535 (1926); or for a more 
interesting treatement (IMHO) Hart, Injuries to Trespassers, 47 Law 
Q.Rev. 92 (1931).


>Thus, I suspect it is fully legal to build an electrified fence around
>one's PC, providing suitable warnings are included.

Varies by state.  If your intent is to prevent ACCESS to the computer, 
as opposed to THEFT, I cannot see how electrocution could be considered 
"reasonable force" to prevent it, given the host of other methods to 
prevent access without harm to the trespasser.

>I would not call the second type a real booby trap, though some courts
>might, depending. A properly labelled electrified fence seems legal, on
>one's own property, but may not be.

I don't know that CRIMINAL liability will insue in those states that 
exempt defenses with warnings, but certainly civil liability might.  
Never know what a jury will do.

>And certainly I think any explosive-rigged system is illegal, for 
>explosives reasons if not for booby trap reasons.

Again, reasonable force will be a question for the jury.  Explosives are 
a bit dramatic for a jury to swollow as "reasonable."  Explosives 
charges will likely be in counts 4&5.

>I know of no case law on this, and suspect that if an FBI agent were to 
>be electrocuted or blown up upon trying to open/use/disconnect the PC, 
>even with clear warnings, that a prosecution would happen. Results are 
>unclear (to me).
>(I think that if an FBI agent were to be electrocuted while climbing on 
>a clearly labelled electrified fence, no prosecution would result.)
>Of course, if a PC were to be clearly labelled as being rigged, then 
>steps could presumably be taken to defuse the arrangement.

Ominously, the possessor is responsible for determining the 
'trespasser's' right to enter the property.  In other words, if a 
officer with legal rights to enter the property was injured or killed by 
a booby trap (warnings or not) liability would almost without question 
insue.  The only defined defense available would be the officer's 
contributatory negligence (ignoring the sign- etc.).

My guess is that FBI enters, sees the PC, calls bomb squad, a member of 
bomb squad is injured by explosive or electrocution or whatever, 
liability insues, warning or not.  At this point warning is not an issue 
as the possessor would not have the right to repell legally entitled 
officers were he present and thus cannot repell them while absent.

I've completely ignored the use of other deadly force in home invasion 
cases.  Mr. Sandfort was pretty close to right on there for Cali.


>--Tim May

>---------:---------:---------:---------:---------:---------:---------:----
>Timothy C. May              | Crypto Anarchy: encryption, digital money,
>tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero

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