Mailyn Fidler (University of New Hampshire Franklin Pierce School of Law) has posted Crime by Tech (Columbia Law Review (forthcoming)) on SSRN. Here is the abstract:
American law has long struggled to identify when the means of committing a crime should matter to punishment. With digital technology, any hesitation seems to be eroding. Many states separately criminalize use of encryption, computers, the Internet, and, most recently, generative artificial intelligence to further otherwise familiar crimes. This Article identifies these crime-by-tech laws as the latest additions to what it terms the “doctrine of criminal means.” The proliferation of crime-by-tech statutes underscores the urgency of developing a coherent account of this doctrine.
This Article provides the first comprehensive account of this doctrine across time and technologies, from mail to guns to encryption. From this investigation, it extracts and defends a normative principle that should guide the doctrine of criminal means. Criminal means laws should only be justified when the means itself embodies distinct wrongfulness, harm, or culpability—not when it merely affects the probability or ease of the underlying crime.
The Article then systematically demonstrates that crime-by-tech laws fail to meet this principle. Instead, these laws are a force multiplier for the pathological politics of American criminal law and act as a cheat code for overcriminalization. Responding to concerns about the criminal use of technology requires state legislatures take a much narrower approach. Otherwise, criminal law risks losing sight of the ends for the means.
Highly recommended.