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Digital Age Samaritans Boston College Law Review Volume 62 Issue 4 Article 3 4-29-2021 Digital Age Samaritans Zachary D. Kaufman University of Houston Law Center, [email protected] Follow this and additional works at: https://lawdigitalcommons.bc.edu/bclr Part of the Criminal Law Commons, Internet Law Commons, and the Science and Technology Law Commons Recommended Citation Zachary D. Kaufman, Digital Age Samaritans, 62 B.C. L. Rev. 1117 (2021), https://lawdigitalcommons.bc.edu/bclr/vol62/iss4/3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. DIGITAL AGE SAMARITANS ZACHARY D. KAUFMAN INTRODUCTION .......................................................................................................................... 1119 I. OBSERVATION OF CRIME IN THE DIGITAL AGE ...................................................................... 1129 A. Opportunities ................................................................................................................... 1129 B. Challenges ....................................................................................................................... 1133 II. THE GATES-LONINA CASE .................................................................................................... 1139 III. GOOD AND BAD SAMARITANS IN THE DIGITAL AGE ........................................................... 1144 A. Transmitters ..................................................................................................................... 1144 1. Transmitters Generally ................................................................................................ 1144 2. Marina Lonina as a Transmitter ................................................................................... 1146 B. Receivers .......................................................................................................................... 1159 1. Receivers Generally ..................................................................................................... 1160 2. Receivers in the Gates-Lonina Case Generally ............................................................ 1163 3. Specific Receivers in the Gates-Lonina Case .............................................................. 1165 IV. PRESCRIPTIONS FOR BAD SAMARITAN LAWS IN THE DIGITAL AGE .................................... 1176 A. Modernize and Refine Bad Samaritan Laws .................................................................... 1177 1. Physical Presence ........................................................................................................ 1177 2. Evidence Preservation and Reporting Recipients ........................................................ 1178 3. Scope of Bad Samaritan Laws ..................................................................................... 1179 4. Penalties for Violation ................................................................................................. 1180 5. Exemptions from Reporting ........................................................................................ 1182 B. Proliferate and Publicize Bad Samaritan Laws Throughout the United States ................ 1184 C. Enforce or Leverage Bad Samaritan Laws ...................................................................... 1186 D. Model Bad Samaritan Law for the Digital Age ................................................................ 1189 CONCLUSION ............................................................................................................................. 1191 1117 DIGITAL AGE SAMARITANS ZACHARY D. KAUFMAN* Abstract: Modern technology enables people to view, document, and share evi- dence of crimes contemporaneously or soon after commission. Electronic trans- © 2021, Zachary D. Kaufman. All rights reserved. * Associate Professor of Law and Political Science, University of Houston Law Center, with addi- tional appointments in the University of Houston’s Department of Political Science and Hobby School of Public Affairs. J.D., Yale Law School; D.Phil. (Ph.D.) and M.Phil., both in International Relations, University of Oxford (Marshall Scholar); B.A. in Political Science, Yale University. Thank you to the following individuals for helpful comments and conversations: Jennifer Barrow; Emily Berman; Hannah Bloch-Wehba; Michal Buchhandler-Raphael; Darren Bush; Jenny Carroll; Seth Chandler; Danielle Keats Citron; Stephen Cody; Mihailis Diamantis; Richard Dole, Jr.; Doron Dorfman; David Dow; Meredith Duncan; David Fagundes; Victor Flatt; Brandon Garrett; Paul Gowder; Chris Griffin; Catherine Hancock; Fareed Hayat; Tracy Hester; Elliot Higgins; Elizabeth D. Katz; Steven Koh; Sapna Kumar; David Kwok; Myrisha Lewis; Ken Levy; Daniel McConkie; Daniel Morales; James Nelson; J. Thomas Oldham; Laura Oren; Shelly Taylor Page; Riana Pfefferkorn; D. Theodore Rave; Shalini Bhargava Ray; Anna Roberts; Jessica Roberts; Peter Schuck; Jay S. Silver; Jocelyn Simonson; Kate Stith; Mark Storslee; Sarah Swan; Sandra Thompson; Robert Weisberg; and Rebecca Wexler, and audiences at Yale Law School, Stanford Law School, Duke Law School, Boston College Law School, Washington University in St. Louis School of Law Junior Faculty Retreat, Uni- versity of Houston Law Center, and the 2020 conferences of the Law and Society Association, Ameri- can Bar Association—Association of American Law Schools Criminal Justice Sections Workshop, Southeastern Association of Law Schools, Criminal Law Works-in-Progress, Feminist Legal Theory Series, and Chicagoland Junior Scholars. I am indebted to my students at Stanford Law School in the reading group on “The Law of Bystanders and Upstanders” that I led in spring 2019. I am also grate- ful to the following individuals for their valuable feedback: Fahim Ahmed, Adrienne Bernhard, Kyle Carter, Samuel Charap, Jana Everett, Thomas Ewing, Noah A. Feldman, Brendon Graeber, Luke Holbrook, Howard Kaufman, Jim Mitre, Allison O’Neill, and Regina Yau. Thank you, as well, to the following individuals involved in the Gates-Lonina case for granting interviews for this Article: Ron J. O’Brien, the lead prosecutor; Jennifer M. Rausch, the assistant prosecutor of Marina Lonina; Samuel H. Shamansky, Lonina’s defense counsel; Brent A. Close, the lead detective; and the only identified upstander, who requested anonymity and is referred to as “the Reporter” in this Article. I also appreciate that Azizah S. Tabler of the Columbus Division of Police’s Public Records Unit processed my public records request for the police department’s investigatory materials concerning the case. For thorough, thoughtful research assistance, I thank, most of all, Katy Badeaux, the best law librarian with whom I have had the privilege and pleasure of working. Other phenomenal research assistants were Alex Barclay, Chelsea Carlton, Daniel Gonzalez, Matthew Hines, To Nhu Huynh, Matthew Jackson, Brad Raymond, Ghazal Ullah, and Xperanza Uviedo. Thank you to the University of Houston’s Office of the Provost for awarding me the “Provost’s 50-in-5 Award for faculty” grant to financially support my research. Finally, I thank the editors of the Boston College Law Review—particularly Editor in Chief Cait- lin Durand, Executive Articles Editor Katherine King, and Articles Editor Matthew Farina—for their excellent editorial assistance. This Article is current as of December 1, 2020. Any errors are mine alone. 1118 2021] Digital Age Samaritans 1119 mission of this material—including through social media and mobile devices— raises legal, moral, and practical questions about spectators’ responsibilities. In the digital age, will these actors be bystanders or upstanders? What role can and should the law play in shaping their behavior? This Article argues that certain witnesses who are not physically present at the scene of a crime should be held criminally accountable for failing to report speci- fied violent offenses of which they are aware. Focusing on rape, police brutality, and other misconduct, this Article demonstrates that recent technological innova- tions create new opportunities and challenges to pursue justice and accountabil- ity. Such culpability centers on “Bad Samaritan laws,” statutes that impose a le- gal duty to assist others in peril through intervening directly (also known as “the duty to rescue”) or notifying authorities (also known as “the duty to report”). Many of these antiquated laws, however, arguably apply only to witnesses who are physically present, which limits their potential effectiveness today. Not all virtual witnesses should be subject to liability. This Article introduces a novel typology of bystanders and upstanders in the digital age to consider cate- gories of actors that may warrant criminal punishment. This typology draws on an original case study of the first known sexual crime livestreamed in the United States by a third party, which more than 700 people viewed. Harnessing insights from that case study and other episodes, this Article recommends that legislators should modernize, refine, proliferate, and publicize Bad Samaritan laws, and that law enforcement should enforce these statutes or leverage them to obtain witness testimony. To that end, this Article proposes a model duty-to-report statute that applies to virtual presence and includes
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