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1
An Urban Outcast on the Digital-Legal Frontier
The Technical Litigation of J.
Noah McClain
Assistant Professor of Sociology
Illinois Institute of Technology
Chicago, IL, USA.
mcclain1@gmail.com
*Note: the final version of this essay was published in 2019 in The Digital Radical and is
available at https://cdcs.asc.upenn.edu/noah-mcclain/
Illustration: Jeff Gipe
User interfaces which successfully clean
up and suppress the intricacies of underlying
technology are generally considered
triumphs of crisp design, giving us a
seamless experience without troubling us
with all the complexity within. We users can
tell that, say, an email sent from here ends
up there without seeing or thinking through
the interactions, systems and networks
which make email possible. We can use
2
technology without understanding it, and
without needing to understand it, either.
Imagine, however, doing some things
with the technologies in your pocket or on
your desk which seem pretty benign to you,
or even a little bit mischievous, and being
told that, within a sub-surface plane of that
technology - within those properties hidden
behind the interface - you are actually
committing a serious offense against law or
contract. The inner workings of technology
become a means of describing your action in
ways you probably don’t understand and
could not anticipate, not only because those
workings are complex and hidden, but
because – as is true of so many of the digital
systems with which we interact – elements
are actively kept secret.
For a pre-digital analogy, I think of the
Fonz, and how that TV character would
elbow a jukebox in a 1950’s diner and his
little jolt would start to play a song. Picture
this: Fonz is arrested. Prosecutors, who are
going by the jukebox company’s description
of how the machine recognizes credits,
reason that Fonz’s jolt make the machine see
credits that do not exist, and charge Fonz
with the rather serious crime of forgery. The
charge sticks not only because Fonz did his
trick in front of witnesses, but also because
what allegedly makes it a forgery is all
sealed up in a machine to which he has no
access, and to which no one beyond the
jukebox company has access.
Something just like that happened to
someone I will call J
1
in New York City in
the mid-2000s, involving an everyday digital
technology. Actually, it happened to lots of
1
Just about everything in this story is public record,
some of it instantly retrievable online. Still, because
this story connects some dots across a person’s
biography, I use only his initial (including in the
Bibliography) to give J. some insulation from a
people, but one person’s case proved pivotal
for all the others, in a criminal case that
legitimated thousands of felony arrests and
hundreds of prosecutions. It also laid the
foundation for a radical new form of legal
thinking in which individuals can be held
legally culpable through features of a
technology withheld from their inspection
and experience, for actions interpreted at the
junction of expert knowledge and law.
Equally radical is the sorts of social
marginality that can extend from this form
of thinking, when people ill-equipped to
dispute accounts of technology cannot then
dispute accusations of guilt for the misuse of
technology implied by those accounts.
J’s story illustrates a form of
defenselessness we all potentially suffer as
our lives are led increasingly surrounded by,
and imbricated with, technologies we
probably do not understand but which might
somehow, someday be cited as a framework
for redefining our legal rights and liabilities
in relation to their mysterious inner
workings. Digital technology became a
vector of social marginality for J, who did
not seek a radical relationship with
technology; that relationship happened to
him.
J is an African-American man born in
late 1950’s. I’ve never met J and know him
only through the paperwork traces of his
life, and a few accounts of people who have
crossed his path. As a teen, he boxed in New
York City’s Police Athletic League,
2
but by
his early 20’s, became entangled with the
criminal justice system, through a string of
simple web search. Certainly, anyone starting with
this story can uncover his name; my strategy is to
offer an obstacle to those who know his name to so
readily uncover this story.
2
No Author a; b, “Gloves’ Results.”
3
felony convictions for robbery or attempted
robbery, each followed by prison terms
which together landed him in prison for
much of the 1980’s and 1990’s.
3
According
to court documents, J has never held a job
but had succeeded, once, in renting a
furnished room of his own after successfully
qualifying for Social Security disability
benefits but lost his home and the benefits
within a year because he was incarcerated
again.
J’s subsequent addresses trace back to
city jails, state prisons and psychiatric
hospitals, with no mailing address in the free
world on record, in an adult life that has
been deeply entwined with controlling
institutions. While J has no cell phone
number or email address, his life has also,
for fifteen years, been deeply entwined with
a digital technology, how that technology
has been interpreted in legal venues, how
human action is framed by that
interpretation, and the criminal
consequences then attached to it.
In an East Harlem subway station one
night back in 2005, two police officers
assigned to the city’s Transit division
reportedly observed J hanging around the
turnstiles “selling swipes” of subway
farecards. Selling swipes is unique to the
New York subway, and starts with a
farecard magnetically coded with digital
data known as a “metrocard”. Metrocards
depleted of value and discarded by users are
collected by so-called “swipers” who crease
them in a very specific way that can - if
done right, with the right kind of metrocard
– be used to enter the subway without
3
Information comes from the New York State
Department of Correctional Services and Community
Supervision Inmate Lookup Database,
http://nysdoccslookup.doccs.ny.gov/.
paying. Swipers stand near the turnstiles at
subway entrances, recruiting customers for
discount subway entry. Using a skilled
technique necessary to produce the outcome,
they swipe the metrocard through a turnstile
reader several times according to a distinct
pattern until the turnstile allows entry. The
bent metrocard cannot be used in this way a
second time.
In my observation of swipers and in my
interviews with subway personnel, people
don’t sell swipes if they have other options.
Station staff are constantly trying to warn
them off; police are often called; there is
stiff competition between swipers for
discarded metrocards and for coveted
positions next to turnstiles. Violence has
occasionally been reported. Swipers have
been accused of intimidating station staff
and riders; riders have stabbed swipers; and
swipers have stabbed one another over
station turf.
4
While most characterizations
of swipers are as a nuisance, subway
employees have also recounted to me that
swipers can also play benevolent roles,
giving free subway entry to those in need, en
route to an unmissable appointment or
stranded without a fare.
Several months before J’s 2005 arrest, a
new law targeting swipers had taken effect,
introducing “unauthorized sale of
transportation services” as a misdemeanor
with a maximum penalty of three months’
incarceration. The legislation had been
proposed under some rather heavy
hyperbole, under claims that swipers
distracted police from protecting subway
riders from terrorism,
5
but the law answered
calls for clarity on just what kind of crime
selling swipes actually is. People who jump
4
No Author c. “Man Who Stabbed Swipe Seller”;
Burke, “Sparring Subway Swiper.”
5
Golden, “Assembly Inaction.”
4
subway turnstiles have long been charged
with “theft of service”, but swipers don’t
generally use the service they provide to a
subway rider, leaving police to get a little
creative with tangential charges like
malicious loitering or criminal trespass. The
new law stood to clear up the ambiguity
with a straightforward charge.
But J wasn’t charged under the new
misdemeanor law. Instead, the Manhattan
District Attorney’s Office asked a grand jury
to indict J for “criminal possession of a
forged instrument in the second degree”,
which is a felony. The grand jury returned
with a fourteen-count indictment, one for
each bent metrocard police say they found
on J, each carrying a potential penalty of 2-4
years in prison.
Authorities had long used forgery laws to
combat subway fare fraud. Back when the
subway relied on tokens, police charged the
ringleader of a major counterfeit-token
operation with criminal possession of a
forged instrument. But the slug kingpin - a
dropout grad student in sociology from the
New School for Social Research – was
caught in a counterfeiting factory containing
a hundred thousand fake tokens, not just
with a few slugs in his pocket.
6
J was not the first alleged swiper to be
prosecuted under forgery laws, either. The
Manhattan District Attorney had begun to do
it in 2001. By the time of J’s 2005 arrest,
two very different – but nonbinding -
judicial opinions had been published on the
question of how bent metrocards relate to
forgery law.
The first came in the case of a juvenile,
known as D.U., caught with a bent
6
Sullivan, “Subway Cheats.”; Dwyer, “Fare-Beater.”
7
In the Matter of D.U.
metrocard which, the kid claimed, he was
using to help a friend with no money get
home. He was charged in Queens Family
Court “with acts which, if committed by an
adult, would constitute crimes of forgery
and criminal possession of forged
instruments.”
7
D.U.’s Legal Aid Society lawyer
challenged the classification of a metrocard
as a “written instrument” as state forgery
laws describe them. The question is not
without merit. A metrocard full of value is
visibly indistinct with one that is absolutely
devoid of data, much less value.
Commercial technologies are no help in
reading them; once, a group of resourceful
computer hackers interested in the
metrocard couldn’t find any digital
information on them at all. As the hackers
later discovered, the metrocard does contain
data, but only to proprietary software
running on proprietary hardware.
8
The
juvenile was being construed as modifying a
document unreadable to him, in ways not
observable by him.
The implications of this theory are
extraordinary: Anything - literally any thing
at all – could be a written instrument if its
properties are shaped to record information
and, jointly, some machine is engineered to
read those properties as information;
accusing people who disturb those
properties of a weighty crime when they
cannot discern what properties they are
disturbing might subject a broad range of
human action to interpretation in that light.
The Queens Family Court, however, was
untroubled by the inaccessibility of the
document, and drew from precedents
treating the data on cable boxes and cellular
8
Balaclava, “Metrocard.”; Redbird, “MTA
Exposed.” See also Harmon, “What Galls a Hacker
Most?”
5
phones as documents, and rejected D.U.’s
challenge.
A contrary opinion came in 2005, months
before J was arrested in Harlem, when a
Brooklyn criminal court weighed a
misdemeanor forgery charge against an
accused swiper. The judge asserted that a
bent metrocard is a written instrument, but
that it does not satisfy the language of state
forgery laws which define a forgery as one
which, after alteration, “appears or purports
to be in all respects” authentic. The subway
authority does not sell or issue bent
metrocards, the judge reasoned, and one
bent down the middle is obviously not
genuine.
9
The Brooklyn judge’s opinion proposed
an essential question: whose perception
counts in determining what a forgery is? A
person’s, or a machine’s? Perhaps more
important is the question that no one
considered in evaluating selling swipes as a
forgery: does it matter at all that the
substance of the crime – the alteration of
digital information – is not observable by
the accused? Or that it is not observable at
all beyond a circle of those with both
expertise and institutional access to the
technology’s innards, who merely represent
the phenomena to courts without even the
possibility of independent challenge?
The Manhattan D.A.’s office put the
perception of a machine front and center in
charging J with felony forgery. J was offered
no plea deal; according to a prosecutor, J
was targeted for special treatment because,
in the prior 36 months, he had “been
convicted ten times for Metrocard or
9
People v. Lopez.
Transit-related crimes”, all misdemeanors.
10
It is also true that J’s three prior felony
convictions had been for crimes which
include threat of violence. But at the same
time, he had not been tried for any felony,
much less one involving violence, since
1990 – an improved, if imperfect trajectory.
Nonetheless, the Manhattan D.A.’s office
decided to label him a “super-repeat
offender” and make his prosecution a
priority.
J’s criminal trial was conducted in a
Manhattan court, where J protested his
innocence, claiming he had been in the
subway station seeking shelter. If police saw
him cavorting with others near the turnstiles,
he claimed, he was doing no more than
talking to area acquaintances.
Prosecutors called an official with the
MTA, introduced as an expert in “metrocard
security”. The defense did not contest that
designation, but how could it? The whole
system is proprietary, engineered by an
outside firm in San Diego, which had also
designed the only machines able to read and
write data in the metrocard’s proprietary
format. Only the MTA can inspect the
technology along with the database which
records all the transactions accomplished
through it. There is no expertise in
metrocard- anything at all beyond the
systems’ developers and the MTA. At the
same time, access to expertise in J’s trial
was not entirely one-sided according to J’s
defense lawyer in that case, who recalled to
me that the MTA expert had made himself
available to the defense for pre-trial
preparation. But shared access to one expert
10
Mignola, Brief for Respondent, Supreme Court,
Appellate Division, First Department, New York, in
People v. J. (2009).
6
opinion still leaves that expert opinion
uncontested.
11
Familiarly, expert-witness testimony is
employed to impress facts on an event. Who
shot the victim? The defendant did, because
a ballistics expert says that the bullet was
certainly fired from her gun. Metrocard
transaction records have been used in
exactly this way in the past, such as to
dispute the alibi of a man accused of killing
a former partner, and to show that a teenager
arrested for fare-beating had actually paid
what was due.
12
But in J’s trial, the MTA
expert was asked to describe the metrocard
technology in the first place, then share how
a bent metrocard interacts with the fare-
processing logic to produce and unpaid ride,
and then to testify that J’s bent metrocards
stood to obtain unpaid subway entry,
according to examinations through the
MTA’s proprietary equipment. In other
words, the expert was not only asked to
share data supporting an allegation that J
committed an offense; they were asked to
describe a whole domain of technology in
which an offense could even occur in the
first place. It is a little like a ballistic expert
having to describe a physics in which there
is such a thing as a “shooting” in which a
“bullet” can travel and injure someone, to a
jury that has heard of neither.
The picture of the metrocard system that
emerged through questioning the MTA
expert showed a technology at once
complex, counterintuitive and arcane. A
metrocard has two variable data fields on
which its value is recorded, but one value is
lower than the other. When used at a
turnstile computer, the computer will treat
the lower of these two values as the current
11
Telephone conversation, Adam Freedman,
Attorney, September 16 2019.
12
Donohue, “Taking a Swipe”; Kennedy, “Proof
From MetroCard.”
number of fares on the metrocard. As the
metrocard is swiped through the slot, it will
deduct a fare from that number, and write a
new, lower value to the other data field,
leaving the value it had just treated as the
“current value” untouched, but making it
obsolete once the new, lower value is
written on the adjacent field. Thus, the two
data fields take turns holding the “current”
value of the metrocard. The two-field
system was explained as a way for each to
back the other one up; if a user’s metrocard
were somehow damaged, the prior value is
still written to the card and can be used to
enter the subway.
In the two-field arrangement, a metrocard
depleted of value will have one data field
indicating one fare and another indicating
zero. Swipers’ bend exploits this
configuration, according to this expert
account, by creasing the metrocard right
where the field indicating zero fares sits on
the magnetic strip. When swiped at a
turnstile, the computer will defer to the one
value it can read, and allow entry.
13
Further questioning of the MTA expert
revealed that just three of J’s fourteen bent
metrocards met essential criteria for use in
selling swipes: unexpired at the time, the
right sort of metrocard, with the proper
arrangement of data on the magnetic strip.
We should take note that the eleven others
were found by the MTA expert to lack these
properties, but each had still served as a
basis for a felony charge in J’s indictment.
Along with the testimony of police, a jury
found J guilty of one felony count and
sentenced him to 2-4 years in prison.
13
Expert Trial Transcript, James Eastman, PhD,
Supreme Court of New York, in People v. J. (2009).
See also Chan, “Appeal Fails.”
7
The paperwork traces of J’s life are
populated by grievances in civil lawsuits
reflecting a person unusually disposed to
challenge the wrongs they believe they’ve
suffered. Though J has often sought to have
courts appoint a lawyer to represent his
grievances, those efforts have failed and J
has gone it alone. J once sued the MTA for
mistreatment at the hands of a subway
police officer.
14
Another time, after being
found guilty of a misdemeanor crime, J sued
both the Assistant District Attorney and his
own lawyer, alleging each had filed false
information in the case, but the courts
rejected both suits.
15
When he was
incarcerated in an upstate prison, J filed a
suit agaisnt his prison’s warden in a federal
court in Buffalo, and even advanced the case
through the discovery process, but once
released back to New York City, could not
make the nine-hour journeys back upstate to
see the case through.
16
Most recently, J sued
the city of New York after, he says, a City
corrections officer assaulted him after telling
him, “Its people like you that we fuck up
and then go up in your ass and fuck.” The
case was dismissed after J could not satisfy
the court that a certain statute of limitations
should not apply in his case.
17
In what is the only instance in which J
has not been the unambiguous loser in a
legal proceeding, the City of New York
settled a case with J. in which he alleged a
Captain of the jail guard at Riker’s Island
had choked him. The case took a long time,
and was put on hold twice while J. was sent
for psychiatric examinations of his fitness to
stand trial in his criminal proceedings. Key
14
J. v. New York City Transit.
15
J. v. Cherrington; J. v. Klang.
16
J. v. NY Correctional.
17
J. v. Perez.
correspondence often did not reach J; during
the four years the case was open, records
show that he had sixteen institutional
address changes, but a penal system that
counts every inmate several times a day
apparently could not find him for the
purposes of delivering his mail, even when J
had simply been transferred from one
building on Rikers Island to another. In
many of these transitions between facilities,
and between occasional release and re-
incarceration, J would lose his legal
paperwork, and had to write to the court for
fresh copies. “The inmates”, he wrote to a
federal judge in one instance, “took all my
legal work and other stuff out of my locker
while I was at the sick cell in the clinic.”
18
In the end, the City paid J two thousand five
hundred dollars and admitted no
wrongdoing.
19
J’s propensity to fight perceived wrongs
had long taken shape when he was charged
with felony forgery for selling swipes
(during that trial, incidentally, he fought
with his lawyer, too), so we should not be
surprised that he appealed the conviction. J
was appointed a lawyer from the Office of
the Appellate Defender, a sort of Legal Aid
Society for appeals. His new lawyer, Brian
McCloskey, raised questions about the
arresting officers’ shaky basis for probable
cause to arrest J, but the main thrust of the
appeal questioned the treatment of bent
metrocards as forgeries even while another
law clearly specifies selling swipes as a
misdemeanor.
In a brief to an intermediate court,
McCloskey advanced the argument made by
18
J. v. City of New York.
19
Settlement amount obtained via Freedom of
Information Law request to the Office of the New
York City Comptroller, returned September 20, 2019.
8
the Brooklyn judge, that not only does a
bent metrocard fail to fool the human eye, it
fails to fool the turnstile reader, too. The
reasoning was a little tricky: a turnstile
computer, according to McCloskey,
establishes the value of a metrocard as the
lowest number of fares between two data
fields. If one of those data fields is
obliterated, then the metrocard is invalid on
its face. Just because the MTA chose to have
its computers accept invalid metrocards does
not mean that an invalid metrocard is a
forgery.
20
The intermediate court didn’t buy it. But
J was granted permission to appeal up to the
Court of Appeals, the highest court in the
state. In a 2008 brief McCloskey submitted
to the court, he offered a careful argument of
law based on the transcript of the expert-
witness testimony from J’s 2005 criminal
trial. McCloskey offered an unsigned check
as a metaphor for a bent metrocard:
information that is necessary to make it
valid is missing. If a bank cashes it on faith,
it does not mean that forgery has occurred,
even if the unsigned check was presented
with fraud in mind.
21
The Manhattan District Attorney’s office
responded with a brief prepared by Gina
Mignola, an Assistant District Attorney.
Mignola’s argument proposed that by
destroying relevant data – the field
indicating zero fares – the written instrument
is altered as read, leaving the turnstile
computer with “no way to determine that the
card has no value.” The brief further
endorsed prior court findings that the eye of
the turnstile scanner is the relevant audience.
“Indeed,” the brief stipulated, “it is only to
20
Reply Brief for Defendant-Appellant to Supreme
Court, Appellate Division, First Department, New
York, in People v. J. (2009).
the eye of the scanner that the writing on the
magnetic strip of the metrocard [invoking
language of the forgery statute -- au]
‘appears or purports’ to be anything at all,
since the writing is invisible to the naked
eye.”
22
We should listen to Mignola. Data coded
to a magnetic strip is not anything at all
except to one specific proprietary
arrangement of hardware and software
which, exclusively, can even detect it as data
at all. That is a troubling point.
Both McCloskey’s and Mignola’s
arguments were based on the transcript of
the expert-witness testimony. If we imagine
that that testimony offered an unambiguous
understanding of the metrocard technology,
we might debate the merits of these
arguments. But bent metrocards do not quite
interact with turnstile computers in the way
that the expert testimony described. The
testimony was not false per se - and I do not
think it was intentionally misleading, either
– but, through the nature of what the lawyers
asked the MTA expert, and what no lawyer
would think to ask without already having
independent knowledge of the metrocard
system, what emerged was an account that
glossed significant details about how a bent
metrocard interacts with a turnstile
computer. The arguments offered by the
litigants thus have the curious property of
making significant interpretations of law
based on misinterpretations of technology.
As I discovered through sustained
research, a turnstile computer won’t ever
grant an entry to a bent metrocard – getting
a free ride with one is a multi-step process
21
McCloskey, Brief for Defendant-Appellant to
Court of Appeals of New York, in People v. J.
(2009).
22
Mignola, Brief for Respondent to Court of Appeals
of New York, in People v. J. (2009).
9
that entails swiping a bent metrocard at the
same turnstile multiple times, first in a bent
state and then twice while it is being held
rigid to counteract the bend. The reasons are
elaborate, and I have explored them
elsewhere,
23
but they mean that a visibly-
bent metrocard may become what
prosecutors want to think of as a forgery, but
they do not actually fit the definition unless
intercepted at a point in this multi-step
process which usually lasts not more than a
split second.
The Court of Appeals sided with the
Manhattan DA’s office in seeing J’s bent
metrocards as forgeries. The bend applied to
the metrocard, the decision argued, did not
create value where none existed but
concealed to the turnstile reader that the
metrocard had no value, taking advantage of
the system’s presumption that a damaged
card was legitimate. It described J’s offense
in language of intentional action which
purposefully engaged the actionable
properties of the metrocard system, such as:
“By bending the MetroCards, defendant
successfully destroyed the zero-value
information on one of the fields […].
Thus, defendant misused the “benefit of
the doubt” system by intentionally
making the valueless Metrocards purport
to be authentic instruments.”
24
A question never raised in the arguments
– and to which the court’s decision did not
speak – was how this technical criteria for a
crime intersects with the lived experience of
J, who was thus found to have destroyed
something, and misused something, which
he had no real way of knowing existed. The
23
McClain “Caught Inside the Black Box.”
24
Opinion of the Court of Appeals in People v. J.
(2009).
crime described in the court’s decision
“happens” between a bent metrocard and
proprietary software and hardware, on a
technical plane to which J has no access.
The way that swipers can experience how
turnstile computers interact with bent
metrocards is through cause-effect
relationships heavily mediated by a user
interface which displays truncated messages
to turnstile users. On that level – the one
accessible to J – the court could not find a
basis to support a charge of felony forgery,
and had to look inside the technology, at
least as it was reported to the court in the
expert-witness transcript.
The court’s decision stabilized the
legitimacy of felony forgery charges used in
what totaled, through 2014, eleven thousand
felony arrests for bent metrocards.
J was not present when his case was
heard by the Court of Appeals in 2009. In
the span of 2013-2014, he was arrested three
more times for selling swipes and charged
under felony forgery laws for each. In the
first, he pled guilty to attempting the crime,
and was sentenced to eighteen months in
jail
25
but was likely credited for time served
because he was back on the street to be
arrested twice more in the months thereafter.
Those arrests were consolidated into one
case,
26
but stretched out over years as J was
twice determined psychiatrically unfit to
stand trial. Having spent what appears to be
all of 2014 and 2015 in one form of penal
custody or other, J was eventually convicted
again of felony forgery and sent in early
2016 to state prison for two more years.
25
Referenced by Stephen MacArthur, Affirmation in
Support of Motion to Consolidate, Supreme Court of
the State of New York indictment number 732/2014.
26
Supreme Court of the State of New York
indictment number 732/2014.
10
Bending metrocards for subsistence-level
earnings became, for J, the source of a
chronic legal entanglement for more than a
dozen years, and the counter is still running.
By any measure, J lives deep on the
social margins. Chronically unhoused,
apparently without even a connection to
someone stable enough to receive legal
notices on his behalf, with multiple felony
convictions, and often believed
psychiatrically disabled, powerful actors –
prosecutors, cops, courts – can more or less
do what they want with him. And they more
or less have, whether or not J’s grievances
are all credible. Though he has worked hard
to resist victimization, J is an easy target.
We should think of J and his recent
experience over selling swipes as a canary in
the mine of a legal and technological future,
of radical social marginality enforced
through the interpretation of human action
jointly with the intricacies of technology and
law. The implicit theory that undergirds J’s
incarceration for felony forgery is that,
within a digital technology, there is a plane
of action in which human activity can be
interpreted, for legal purposes, according to
the unique dynamics of that plane. The
theory does not address the relevance of the
awareness of the person, but J’s case sets a
precedent that people can be held criminally
accountable for this alternate, “deeper”
rendering of acts perpetrators cannot even
observe, concealed beneath a user interface
that masks what lies beneath it.
A similar form of thinking has begun to
effect broader privacy rights. Whenever you
send an email to your next-door neighbor,
your message is likely to follow a relatively
short and efficient route to her through
networks and servers. But, if network
27
Daskal, “Un-Territoriality of Data.”
conditions are just right, it is possible that
your message will be routed through
overseas servers, in way that is hard - if not
impossible – to predict, because the
circumstances determining the route
continue to take shape even after you click
‘send’. Most people probably don’t care
how their emails travel. But the paths of
electronic communication can change its
legal status, at least in the U.S.: once beyond
national borders, a message is exempted
from many of the protections against
warrantless search by the National Security
Administration. Our reflexive experience
may be of sending a local, private email to
someone thirty feet away, while a
‘technical” reading of our sent email gives it
the legal status of “overseas
communication.”
27
Moreover, in what is
known as the “traffic shaping loophole”, the
NSA has developed means to redirect
domestic Internet traffic through overseas
servers, pushing your email to your neighbor
beyond the governance of U.S. courts and
protections, giving it a new legal status to
then invoke for strategic purposes.
28
Even those taking precautions agaisnt
certain “technical” interpretations of their
acts and artifacts must contend with the way
that our digital technologies are subject to
modification and updates to internal code
but which leave the user experience more or
less the same. Can undetected or
undetectable updates reconfigure our legal
rights and liabilities? (Could an undetectable
change in the subway fare-processing
software make swipers vulnerable to even
more severe charges? Could yet another
update eliminate their vulnerability to
charges of forgery?) How do we confront
these questions not only in light of the
concealed complexity of digital
technologies, but when some technologies
28
Goldberg, “Surveillance Without Borders.”
11
are even purpose-built to deceive users
about just what the innards are doing?
29
In a noxious possible future of which J is
a bellwether, properties of technology stand
to reframe the legal status of how we use our
digital stuff; it becomes possible, in effect,
to engineer criminality around an act, and to
invoke that criminality when the powerful
decide its expedient. Systems over which
there is broad, distributed expertise – such as
the Internet – offer challenge enough in this
regard; J’s experience with a proprietary,
largely unknown technology shows that its
actual engineering may even be different
from how that engineering is understood and
made relevant in legal contexts. It may not
matter how technologies actually work, it
just matters how they are understood to
work, when agents of power cite technology
to interpret the actions of the weak.
J, and vulnerable people like him, stand
on the front lines of that possible future.
When his case was argued before the Court
of Appeals, one of the judges pressed ADA
Mignola on the potential for discrimination
in allowing selling swipes to be prosecuted
either as a low-grade, “B” misdemeanor or
medium-grade felony, in which one charge
could lead to a three-month sentence to a
city jail and the other could lead to a prison
sentence sixteen times as long. “Does it
mean you, the District Attorney, could sit
there and say, ‘we’ve got too many
Hispanics doing this. I think we’ll charge
them with felonies and save the B
29
Monahan, “Built to Lie.”
30
See comments of Hon. R. Smith in oral arguments
before the Court of Appeals, March 26, 2009, in
People v. J. (2009). Video available by request from
the library of School of Law, State University of New
York at Albany.
31
Data come from the New York Police Department
Legal Bureau, via Freedom of Information Law
misdemeanors for others?’” Mignola shot
back, “We would never do that!”
30
But
that’s just what New York City authorities
did.
Or at least they may as well have. Data I
obtained from the New York Police
Department shows that, of the eleven
thousand “bent metrocard” felony arrests
over a dozen years, ninety-two percent of
arrestees were African-American or
Hispanic.
31
We either have a case of
disproportionate policing, or, if somehow
ninety-two percent of all swipes are actually
sold by African-Americans or Hispanics, a
case of saddling those populations with
disproportionately harsh charges for a mild
affront to public order. These demographics
are statistically camouflaged in what
criminal justice data is generally made
public, because arrests and prosecutions of
swipers are aggregated together with arrests
and prosecutions for lots of other sorts of
forgery: of deeds to property, of credit cards,
of drug prescriptions, of contracts and of
wills, which are each specified as second-
degree felonies to possess, and, we might
imagine, are instruments of much greater
harm than a bent metrocard.
J was released from his most recent
prison stint in 2018 and was arrested twice
more in 2019 over bent metrocards. As of
the time of writing, J. has passed his sixtieth
birthday and has just closed both cases by
pleading guilty to misdemeanor forgery
charges in each.
32
The judge sentenced him
to a “conditional discharge” of one year,
Request issued December 2012 and returned in
November 2015. See also McClain, “Caught Inside
the Black Box.”
32
New York criminal case numbers CR-012006-
19NY and CR-026848-19NY, accessed on 16
September, 2019 in the WebCriminal database,
https://iapps.courts.state.ny.us/webcrim_attorney/Att
orneyWelcome.
12
during which he must not be arrested again,
an option a judge can impose when “neither
the public interest nor the ends of justice
would be served by a sentence of
imprisonment and that probation supervision
is not appropriate.”
33
It’s about time
someone realized the futility of locking J up
for more years. But the precedents his 2005
case has set – both in relationship to bent
metrocards, and the underlying idea of
framing human action through hidden
features of digital technologies -- lives on.
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