This week NBC launched The Cape, a superhero series that follows the journey of a framed police officer who dons the hood of a vigilante. I have seen a number of posts criticizing the show for being an unoriginal adaptation of various existing comic characters, most obviously Batman, but personally I welcome the series. Even though the story is obviously heavily borrowed from the Batman origin story, and, like Heroes, will probably mirror other comics as it progresses, I think shows like The Cape bring a new audience to the genre who may not have tuned in for an actual Batman series1.
In addition to bringing additional media attention to our genre, The Cape has already provided me with new Superhero Law topics to write about. I will keep the details of this post fairly general in case reading this persuades any of my readers who missed the premier to catch one of the upcoming reruns.
The Defense of Duress
In the first episode of The Cape, Vince Faraday2 is framed for murder and narrowly escapes police capture. While on the run he is kidnapped by a gang of bank-robbing circus folk and agrees to join their gang in exchange for being allowed to live. Naturally, over time he is accepted by the gang and their leader teaches Faraday many of the skills that he will later use to fight crime. Before leaving to fight crime, however, Faraday does participate in a number of criminal acts. While some of these initial acts were under the pretense that the criminals would kill him if he did not participate, at some point any reasonable defense that situation would have provided began to fade.
In most jurisdictions, the defense of duress is available to someone facing criminal charges where they can show that they were subject to an imminent danger and that they broke the law to avoid some greater evil. The defense is also an admission of guilt as to the acts of a crime but not to the mental state, or intent, required. Also, in order to be eligible for this defense, the imminent danger imposed on the actor cannot be the result of any reckless or negligent behavior of their own.
When Vince is originally being held hostage it is safe to say that any actions he took immediately following his apprehension would have been excused due to duress. He had a reasonable fear that his life was immediately in danger and he was stealing (a lesser offense than murder3) to avoid that fate. As time progressed, however, he was presented with more and more opportunities to escape and his continued participation in criminal activities was less the result of a fear of imminent danger and more the result of a desire to stay with the group and continue to learn. Once the reasonable fear subsided, and more reasonable opportunities for escape presented themselves, Vince would have lost any excuse he once had based on duress.
There are quite a few superheroes who are known for their technological savvy, specifically their ability to infiltrate various computer systems (including those of the government). Heroes such as The Question and The Oracle4 have few other abilities to rely upon, but even Batman and the Red Tornado have been known to do some hacking. While this post will be restricted to laws relating to invasions of electronic privacy, I have previously covered more general privacy issues concerning government actors in Privacy Chapter I – Or why a phone booth is a terrible place to change clothes and against private actors in Privacy Chapter II – Your friendly neighborhood tortfeasor.
When The Question runs a program in order to intercept confidential emails being sent between government agents in real-time, or when Batman puts an unauthorized tap on a suspect’s phone, each would be liable for violations of Title I of the Electronic Communications Privacy Act of 1986 (ECPA).
The ECPA is a Federal statute that criminalizes the unauthorized interception and disclosure of wire, oral, or electronic communications. Anyone who even attempts to intercept these types of communications, attempts to use a device to intercept such communications, or who uses or discloses information that was received through interception, is liable under the law.
In addition to the acts covered above, Title II addresses electronic communications that are stored by a provider, which would be triggered when one of these heroes accesses a restricted database to read past communications or collect evidence of criminal activity. The final section of the ECPA, Title III, covers the use of pen registers and trap and trace devices, which gives a user information about who a person is calling or sending an email to in real-time, rather than the actual content of the communication.
While a government actor (see my first post, Your tax-dollars at work?, for a discussion of which superheroes may be considered government actors) is not even required to obtain a search warrant before applying a pen register, private superheroes and vigilantes face civil damages, punitive damages, and the possibility of paying a victim’s attorney’s fees for violations of the ECPA.
Throughout the premier of The Cape, the mysterious figure of “Orwell” is seen intercepting media transmissions and broadcasting his/her own message of “the truth,” Orwell is already in serious violation of statutes such as the ECPA and I suspect that his/her efforts throughout the series will continue this trend.
IN THE NEXT EXCITING INSTALLMENT
Next time we will be visiting the world of Real Life Superheroes (RLSH) in our first Superhero Law Case Study.
1 – Although I haven’t had a chance to write about it, No Ordinary Family also seems to be doing well with its ratings.
2- Given his last name, I would have expected the main character of The Cape to have some type of magnetism or electricity abilities (See Michael Faraday). Perhaps that was part of an earlier version of the plot?
3 – Many jurisdictions do not extend the defense of duress to homicide, however under the Model Penal Code section 3.02, the only restriction is that the crime avoided is greater than the crime committed, allowing for the possibility of a duress defense even in a case of homicide.
4 – The Oracle is actually Barbara Gordon, formerly Batgirl, who was shot through the spinal cord by the Joker. Now in a wheel chair, she uses her computer skills to detect and solve crime as well as provide aid to other superheroes.