Blackmail paradox
Oct. 14th, 2005 05:01 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
jackHmmm. I don't regret not doing law, whatever online tests say. The consensus seems to be there are some parts I'd find very interesting, the jurisprudence, the constructing arguments and playing nomic with the law, but most of it I'd hate.
But every so often I come across something and go 'hmmm', I should have covered that in a lecture somewhere. Witness the response to my factual and moral truths musings.
Today, I ended up reading about blackmail[1]. Why is it illegal? Obviously if you're threatening an illegal act it should be, but showing pictures of a neighbour leaving a lover's house of to their spouse is legal, and receiving gifts from them is legal, but both together aren't. Though *them* proposing to pay *you* not to still is.
It's illegal because lots of bad things would happen if it isn't. It would encourage lots of snooping, stealing to pay blackmailers, etc.
But apparently there is no good test for *what* threats constitute blackmail. Publishing information? Too restrictive. Any threat? Too broad: that would cover hard bargaining.
Can anyone propose a better?
There are other common examples of laws where the harm is hard to define, that "libertarians" would like to abolish, and are problematic in inexactitude, but are probably necessary. Prostitution. Ticket scalping. Telling lies on TV. (OK, that isn't, but shouldn't it be?)
[1] Or extortion. Used here in the sense of "threatening to X unless you do Y" where X may or may not be legal, and may or may not be an inaction, and Y may or may not be giving money.
But every so often I come across something and go 'hmmm', I should have covered that in a lecture somewhere. Witness the response to my factual and moral truths musings.
Today, I ended up reading about blackmail[1]. Why is it illegal? Obviously if you're threatening an illegal act it should be, but showing pictures of a neighbour leaving a lover's house of to their spouse is legal, and receiving gifts from them is legal, but both together aren't. Though *them* proposing to pay *you* not to still is.
It's illegal because lots of bad things would happen if it isn't. It would encourage lots of snooping, stealing to pay blackmailers, etc.
But apparently there is no good test for *what* threats constitute blackmail. Publishing information? Too restrictive. Any threat? Too broad: that would cover hard bargaining.
Can anyone propose a better?
There are other common examples of laws where the harm is hard to define, that "libertarians" would like to abolish, and are problematic in inexactitude, but are probably necessary. Prostitution. Ticket scalping. Telling lies on TV. (OK, that isn't, but shouldn't it be?)
[1] Or extortion. Used here in the sense of "threatening to X unless you do Y" where X may or may not be legal, and may or may not be an inaction, and Y may or may not be giving money.
no subject
Date: 2005-10-14 04:24 pm (UTC)There can clearly be extortion that isn't blackmail ("ten grand or Guido comes round with the baseball bat"). I don't think there can be blackmail that isn't extortion. So first define extortion and then think about what makes a particular kind of extortion blackmail or not.
A transaction that you're a willing participant in isn't extortion (err, unless you're doing the extortion, obviously). Another view might be that a transaction in which you don't get any benefit is extortion. Both of these get uncomfortably close to including taxation (certainly not everyone is willing to pay tax, even if I personally am...) but I don't want to say that if the state does it it's not extortion because that is the thin end of the state being by definition unable to commit crimes, and states can certainly commit crimes against their citizens.
However I'm not sure these worries apply to the blackmail case: the threat states use are fines and imprisonment, not shopping you to your wife. Or we could just assume that solving it is another conversation.
So - extortion in which the threat is to publish or reveal something?
no subject
Date: 2005-10-14 04:54 pm (UTC)Whether threatening-to-reveal should be legal is a good question, but seems amenable to definition.
What other threats are legal is the difficult question. "Willing" could work, but definitely requires case-by-case judgement. You're generally trying to define a base state deviation from which is an unreasonable threat. Not publishing photos is a default. Granting a tender to the best bidder is a default. But it's very subjective.
no subject
Date: 2005-10-14 06:13 pm (UTC)There are many reasons why the state takes an interest in blackmail.
Firstly, 'blackmail' refers to any form of extortion, threats against the person and his property as well as information warfare, and the state reserves a monopoly of violence: modern states also seek to moderate the terms of contract that one citizen can impose on another - a monopoly of oppression, if you will.
That's the 'top-down' view of the enlightened dictator, and it is matched by the expectations of free citizens in a democracy. Expropriation, the threat of violence, punitive or malicious acts to destroy your reputation and private life - people don't enter freely into 'agreements' with these potential outcomes, and they expect a democratic state state to curb the power of those who seek to impose such terms.
Considering the narrow definition, the publication of embarrassing details of your private life (say, medical records) calculated to destroy your public life and family relationships, it's fair to ask: who has the prower and the right to do that? At the very least, such punitive actions should be a momopoly of the state and, if used at all, they should be dispensed by the courts.
It might surprise you to learn that the CPS will often prosecute a blackmailer and reserve charges on the victim when he's being blackmailed over fairly serious criminal offences. The reasoning is simple: blackmail is more damaging to society than a whole range of criminal acts and contractual failings.
As an extreme example, blackmail's a powerful motive to murder. Injustice is always expensive for someone, and the state has interest in its prevention because the state ends up dealing with the mess.
no subject
Date: 2005-10-16 08:39 pm (UTC)the publication of embarrassing details of your private life calculated to destroy your public life and family relationships, it's fair to ask: who has the prower and the right to do that? At the very least, such punitive actions should be a momopoly of... who has the prower and the right to do that?
OTOH, should there hence be more restrictions on the publication? If I see A going into B's house, it should normally be legal to say so, shouldn't it? Should that be restricted when it becomes damaging??
It might surprise you to learn that the CPS will often prosecute a blackmailer and reserve charges on the victim when he's being blackmailed over fairly serious criminal offences.
And if they didn't, they'd probably be generally unable to prosecute *either*...
no subject
Date: 2005-10-16 11:09 pm (UTC)Whether it should be or not, it is. The law of defamation - slander and libel - is more often decided on the easy test that a statement is damaging, rather more than on the balance of probabilities that it is factually true.
no subject
Date: 2005-10-17 01:51 pm (UTC)