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Risks of Virtual Professionalism

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The software engineering and online gaming communities have been rocked by the conviction in a Texas court of an Icelandic programmer for crimes committed in the secret virtual world Third Life, which is entered via a hidden trap door in Second Life®.

Two years ago, the Fifth Third Life Bank (FTLB) outsourced the programming of a "virtually invulnerable" security system to David Josephssen, known online as dvdjo. Following a major theft from FTLB last year, he was charged with malpractice, being an accessory to grand theft before and after the fact, and practicing software engineering without a license—which is an aggravated felony in Texas, if done in furtherance of a crime.

The charges of malpractice and accessory before the fact were based on the success of the theft. FTLB’s CIO testified "It was supposed to be invulnerable. He either bungled or betrayed us." The charge of accessory after the fact was based on the absence of any evidence of intrusion in the FTLB security log. He was supposedly the only person who had the password to remove these records.

After the trial, the jury foreman said that the only charge the jury really understood was practicing software engineering without a license. "But we figured, if he did that, he’s a hacker, and heck, he probably did all those fancy virtual things the DA said."

In a related civil case, the Recording Institute of American Avatars (RIAA) has sued demanding "the return of items stolen from the virtual vault of Fifth Third Life Bank, namely 1,023 virtual cloaks of invisibility and 255 virtual gold master CDs, and all copies thereof," plus $100,000,000 in exemplary damages. Second Hollywood insiders say that the RIAA was about to launch a campaign in Second Life featuring CDs as costume jewelry. The cloaks of invisibility were to assist RIAA avatars tracking down avatars listening to CDs instead of wearing them (part of a "Bling, not Sing" campaign). Ima Ghofer, spokesman for Dewey, Cheatham, and Howe, which is representing the RIAA in the case, refused to comment, "because the matter is being litigated."

Josephssen was lured from Iceland to Texas for the trial by a pretexting avatar who met dvdjo in an encrypted Third Life chat room, surrounded by a virtual Faraday cage. Excerpts from the log of the meeting were placed in evidence: "xyzzy. gota j0b 4u dvdjo. RL & vir $MMz, chaNc 2 bcum 133t haxorz karamat, lotsa RL sx," "TBH n2ez d00d. I cnt expln it hEr. we tink d NSA mA hav brkn our cript0. JIC LMIRL," and "ul hav 2 cum 2 TX 2 get d Dtails."

Legal experts say that there were several reasons to bring the actions in Texas. It is one of the few states that requires software engineers to be licensed. Its courts follow the doctrine of habeas grabus; how a criminal in custody was captured is irrelevant. And the death penalty can be based on the gravity of the crime, rather than the guilt of the accused.

The court in the small town of Diagon is known to trial lawyers as the "Kazoom Courtroom," for its obscurity, quick trials, and hanging juries.

Perhaps the RIAA hoped that Josephssen could be executed before his case drew the attention of the national media. ("Once dead, dvdjo would make a great scarecrow," said an RIAA insider.) And indeed, that could have happened, except for the posts of a lone blogger, writing as texasdirt at http://westofpecos.blogspot.com. His reports of the trial and sentence stirred up a storm in the blogosphere that attracted the attention of the ACLU and Amnesty International.

In its emergency appeal, the ACLU cited the inadequacy of Josephssen’s defense. According to West of Pecos, the public defender played Tetris throughout the trial, failed to cross-examine any witnesses, and when asked if he wished to call defense witnesses, said "Are you nuts? I’m getting paid by the case." He also waived the right to appeal, apparently over Josephssen’s objections. AI’s amicus brief said that the pretexter violated federal law by using promises of sex to lure a teenager across state lines.

But other groups are unsympathetic. The Motion Picture Artists Association says "hanging is the traditional remedy for piracy," and Electronic Frontier Fighters says "vigilante justice is a vital part of any frontier."

Asked to comment on the severity of his sentence, Judge Roy Bean replied, "This is Texas. If you can’t stand the heat, stay off the Internet."

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