Jennifer A. Chandler (University of Ottawa - Faculty of Law - Common Law Section) has posted Technological Self-Defense and Equality on SSRN. Here is the abstract:
This article seeks to clarify the relationship between extra-legal self-help, technology and equality.
Self-help refers to a set of otherwise illegal actions that the law permits people to take in the pursuit of certain rights and interests, and technological self-help refers to the use of technologies for these purposes. One of the policy concerns at the heart of the rules about self-help is the issue of human equality. Limits on self-help are sometimes justified because they are said to reduce the extent to which “might makes right.” However, the legal system is not always an effective or accessible method to protect one’s rights and interests, leaving self-help as another option. Technology becomes relevant in this context in assessing whether self-help is a viable option where an attacker and a defender are unequal in strength.
A legal approach that would limit resort to technological tools in self-help would ratify and preserve that inequality. In these cases, a technology could neutralize an inequality in strength, a property suggested by the choice of “the Equalizer” as the 19th century nickname for the Colt handgun.
However, the relationship between technology and human equality is complex, and this article proposes an analytical structure for understanding it. The objective is to understand which technologies promote equality while imposing the least social costs when used in self-help.
The article proposes principles (including explicit consideration of the effects on equality) for setting limits on technological self-help, and illustrates their use by applying them to several forms of cyberspace counter-strikes against hackers, phishers, spammers and peer-to-peer networks.