crime

Why disclosure laws are good

From Bruce Schneier’s “Identity-Theft Disclosure Laws” (Crypto-Gram Newsletter: 15 May 2006):

Disclosure laws force companies to make these security breaches public. This is a good idea for three reasons. One, it is good security practice to notify potential identity theft victims that their personal information has been lost or stolen. Two, statistics on actual data thefts are valuable for research purposes. And three, the potential cost of the notification and the associated bad publicity naturally leads companies to spend more money on protecting personal information — or to refrain from collecting it in the first place.

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A profile of phishers & their jobs

From Lee Gomes’s Phisher Tales: How Webs of Scammers Pull Off Internet Fraud (The Wall Street Journal: 20 June 2005):

The typical phisher, he discovered, isn’t a movie-style villain but a Romanian teenager, albeit one who belongs to a social and economic infrastructure that is both remarkably sophisticated and utterly ragtag.

If, in the early days, phishing scams were one-person operations, they have since become so complicated that, just as with medicine or law, the labor has become specialized.

Phishers with different skills will trade with each other in IRC chat rooms, says Mr. Abad. Some might have access to computers around the world that have been hijacked, and can thus be used in connection with a phishing attack. Others might design realistic “scam pages,” which are the actual emails that phishers send. …

But even if a phisher has a “full,” the real work has yet to begin. The goal of most phishers is to use the information they glean to withdraw money from your bank account. Western Union is one way. Another is making a fake ATM card using a blank credit card and a special magnetic stripe reader/writer, which is easy to purchase online.

A phisher, though, may not have the wherewithal to do either of those. He might, for instance, be stuck in a small town where the Internet is his only connection to the outside world. In that case, he’ll go into an IRC chat room and look for a “casher,” someone who can do the dirty work of actually walking up to an ATM. Cashers, says Mr. Abad, usually take a cut of the proceeds and then wire the rest back to the phisher.

Certain chat rooms are thus full of cashers looking for work. “I cash out,” advertised “CCPower” last week on an IRC channel that had 80 other people logged onto it. “Msg me for deal. 65% your share.”

The average nonphisher might wonder what would prevent a casher from simply taking the money and running. It turns out, says Mr. Abad, that phishers have a reputation-monitoring system much like eBay’s. If you rip someone off, your rating goes down. Not only that, phishers post nasty notices about you on IRC. “Sox and Bagzy are rippers,” warned a message posted last week.

Phishers, not surprisingly, are savvy about their targets. For instance, it wasn’t just a coincidence that Washington Mutual was a phisher favorite. Mr. Abad says it was widely known in the phishing underground that a flaw in the communications between the bank’s ATM machines and its mainframe computers made it especially easy to manufacture fake Washington Mutual ATM cards. The bank fixed the problem a few months ago, Mr. Abad says, and the incidence of Washington Mutual-related phishing quickly plummeted. …

Mr. Abad himself is just 23 years old, but he has spent much of the past 10 years hanging out in IRC chat rooms, encountering all manner of hackers and other colorful characters. One thing that’s different about phishers, he says, is how little they like to gab.

“Real hackers will engage in conversation,” he says. “With phishers, it’s a job.”

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Al Qaeda hijacks web server to distribute video

From Matt Tanase’s Don’t let this happen to you:

Smaller companies often assume they have nothing of interest to hackers. Often times that is the case, but they are still after resources, as in this case. Unfortunately, the hackers in this case are tied to Al Qaeda. They placed the recent hostage video on a California companies server. Imagine all of the lovely publicity this brought in.

From New24’s US firm spread hostage video (17 June 2004):

Video images of a US engineer taken hostage in Saudi Arabia, possibly by the al-Qaeda network, could have been put on the internet via a US firm based in California, Der Spiegel magazine reported on Thursday.

The video was released on Tuesday and shows relatively high-quality film of hostage Paul Johnson, who kidnappers from a group called “al-Qaeda in the Arabian Peninsula” have threatened to kill by Friday.

The origin of the video was traced to Silicon Valley Land Surveying Incorporated, a California land surveying and mapping company, said Spiegel online, the internet service for the respected German weekly.

The magazine said that according to its research the move was the first time al-Qaeda had “hijacked” a website to broadcast its propaganda.

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Providing an opening for criminals without realizing it

From Bush, Kerry cross paths in Iowa (BBC News: 4 August 2004):

US President George W Bush and his Democratic rival John Kerry have spent the day hunting votes within blocks of each other in the state of Iowa.

Mr Bush met supporters at a rally in the town of Davenport, while Mr Kerry held an economic roundtable discussion with business leaders nearby. …

Political pundits were not the only ones taking advantage of the day’s events.

Three local banks were robbed as the campaigns hit Davenport.

The first robbery occurred just as Mr Bush stepped off his plane, local police say.

The second and third robberies – at different banks – took place while the two candidates were addressing their respective Iowa crowds.

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Offshoring danger: identity theft

From Indian call centre ‘fraud’ probe (BBC News: 23 June 2005):

Police are investigating reports that the bank account details of 1,000 UK customers, held by Indian call centres, were sold to an undercover reporter.

The Sun claims one of its journalists bought personal details including passwords, addresses and passport data from a Delhi IT worker for £4.25 each. …

The Sun alleged the computer expert told the reporter he could sell up to 200,000 account details, obtained from fraudulent call centre workers, each month.

Details handed to the reporter had been examined by a security expert who had indicated they were genuine, the paper said.

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Most PCs are rife with malware, & owners don’t know it

From Robert Lemos’s Plague carriers: Most users unaware of PC infections (CNET News.com: 25 October 2004):

A study of home PCs released Monday found that about 80 percent had been infected with spyware almost entirely unbeknownst to their users.

The study, funded by America Online and the National Cyber Security Alliance, found home users mostly unprotected from online threats and largely ignorant of the dangers. AOL and the NCSA sent technicians to 329 homes to inspect computers. …

Nearly three in five users do not know the difference between a firewall and antivirus software. Desktop firewall software regulates which applications on a PC can communicate across the network, while antivirus software detects malicious code that attempts to run on a computer, typically by pattern matching. Two-thirds of users don’t have a firewall installed on their computer, and while 85 percent of PC owners had installed antivirus software, two-thirds of them had not updated the software in the last week. The study found one in five users had an active virus on their machines.

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Identity theft method: file false unemployment claims

From Michael Alter’s States fiddle while defrauders steal (CNET News.com: 21 June 2005):

More than 9 million American consumers fall victim to identity theft each year. But the most underpublicized identity theft crime is one in which thieves defraud state governments of payroll taxes by filing fraudulent unemployment claims.

It can be a fairly lucrative scheme, too. File a false unemployment claim and you can receive $400 per week for 26 weeks. Do it for 100 Social Security numbers and you’ve made a quick $1.04 million. It’s tough to make crime pay much better than that.

The victims in this crime–the state work force agencies that tirelessly oversee our unemployment insurance programs and the U.S. Department of Labor–are reluctant to discuss this topic for obvious reasons. …

The slow response of state and federal agencies is quickly threatening the integrity of the unemployment insurance system. It turns out that crime is a very efficient market and word spreads quickly. Got a stolen Social Security number? You can more easily turn it into money by defrauding the government than by defrauding the credit card companies.

The net result of this fraud is that unemployment taxes are going up, and that makes it that much harder for small businesses and big businesses to do business. Even more, higher payroll taxes slow down economic growth because they make it more expensive to hire new employees.

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Arrested for directory truncation

From Sol Terra’s [IP] Use the Dots, Go to Jail – that’s the law (Interesting People: 24 October 2005):

Today, Daniel Cuthbert was found guilty.

Daniel Cuthbert saw the devastating images of the Tsunami disaster and decided to donate £30 via the website that was hastily set up to be able to process payments. He is a computer security consultant, regarded in his field as an expert and respected by colleagues and employers alike. He entered his full personal details (home address, number, name and full card details). He did not receive confirmation of payment or a reference and became concerned as he has had issues with fraud on his card on a previous occasion. He then did a couple of very basic penetration tests. If they resulted in the site being insecure as he suspected, he would have contacted the authorities, as he had nothing to gain from doing this for fun and keeping the fact to himself that he suspected the site to be a phishing site and all this money pledged was going to some South American somewhere in South America.

The first test he used was the (dot dot slash, 3 times) ../../../ sequence. The ../ command is called a Directory Traversal which allows you to move up the hierarchy of a file. The triple sequence amounts to a DTA (Directory Traversal Attack), allows you to move three times. It is not a complete attack as that would require a further command, it was merely a light =knock on the door˜. The other test, which constituted an apostrophe( ‘ ) was also used. He was then satisfied that the site was safe as his received no error messages in response to his query, then went about his work duties. There were no warnings or dialogue boxes showing that he had accessed an unauthorised area.

20 days later he was arrested at his place of work and had his house searched. In the first part of his interview, he did not readily acknowledge his actions, but in the second half of the interview, he did. He was a little distraught and confused upon arrest, as anyone would be in that situation and did not ask for a solicitor, as he maintained he did nothing wrong. His tests were done in a 2 minute timeframe, then forgotten about.

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Banks have more to fear from internal attacks than external

From electricnews.net’s Internal security attacks affecting banks (The Register: 23 June 2005):

Internal security breaches at the world’s banks are growing faster than external attacks, as institutions invest in technology, instead of employee training.

According to the 2005 Global Security Survey, published by Deloitte Touche Tohmatsu, 35 per cent of respondents said that they had encountered attacks from inside their organisation within the last 12 months, up from 14 per cent in 2004. In contrast, only 26 per cent confirmed external attacks, compared to 23 per cent in 2004. Click Here

The report, which surveyed senior security officers from the world’s top 100 financial institutions, found that incidences of phishing and pharming, two online scams which exploit human behaviour, are growing rapidly.

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Credit cards sold in the Underground

From David Kirkpatrick’s “The Net’s not-so-secret economy of crime” (Fortune: 15 May 2006):

Raze Software offers a product called CC2Bank 1.3, available in freeware form – if you like it, please pay for it. …

But CC2Bank’s purpose is the management of stolen credit cards. Release 1.3 enables you to type in any credit card number and learn the type of card, name of the issuing bank, the bank’s phone number and the country where the card was issued, among other info. …

Says Marc Gaffan, a marketer at RSA: “There’s an organized industry out there with defined roles and specialties. There are means of communications, rules of engagement, and even ethics. It’s a whole value chain of facilitating fraud, and only the last steps of the chain are actually dedicated to translating activity into money.”

This ecosystem of support for crime includes services and tools to make theft simpler, harder to detect, and more lucrative. …

… a site called TalkCash.net. It’s a members-only forum, for both verified and non-verified members. To verify a new member, the administrators of the site must do due diligence, for example by requiring the applicant to turn over a few credit card numbers to demonstrate that they work.

It’s an honorable exchange for dishonorable information. “I’m proud to be a vendor here,” writes one seller.

“Have a good carding day and good luck,” writes another seller …

These sleazeballs don’t just deal in card numbers, but also in so-called “CVV” numbers. That’s the Creditcard Validation Value – an extra three- or four-digit number on the front or back of a card that’s supposed to prove the user has physical possession of the card.

On TalkCash.net you can buy CVVs for card numbers you already have, or you can buy card numbers with CVVs included. (That costs more, of course.)

“All CVV are guaranteed: fresh and valid,” writes one dealer, who charges $3 per CVV, or $20 for a card number with CVV and the user’s date of birth. “Meet me at ICQ: 264535650,” he writes, referring to the instant message service (owned by AOL) where he conducts business. …

Gaffan says these credit card numbers and data are almost never obtained by criminals as a result of legitimate online card use. More often the fraudsters get them through offline credit card number thefts in places like restaurants, when computer tapes are stolen or lost, or using “pharming” sites, which mimic a genuine bank site and dupe cardholders into entering precious private information. Another source of credit card data are the very common “phishing” scams, in which an e-mail that looks like it’s from a bank prompts someone to hand over personal data.

Also available on TalkCash is access to hijacked home broadband computers – many of them in the United States – which can be used to host various kinds of criminal exploits, including phishing e-mails and pharming sites.

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Search for “high score” told them who stole the PC

From Robert Alberti’s “more on Supposedly Destroyed Hard Drive Purchased In Chicago” (Interesting People mailing list: 3 June 2006):

It would be interesting to analyze that drive to see if anyone else was using it during the period between when it went to Best Buy, and when it turned up at the garage sale. We once discovered who stole, and then returned, a Macintosh from a department at the University of Minnesota with its drive erased. We did a hex search of the drive surface for the words “high score”. There was the name of the thief, one of the janitors, who confessed when presented with evidence.

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Kids forcibly sent to re-education programs

From Nadya Labi’s “Want Your Kid to Disappear?” (Legal Affairs: July/August 2004):

RICK STRAWN IS AN EX-COP WHO STARTED HIS COMPANY in 1988 to help police officers find off-duty work guarding construction sites. Ten years later, he was asked by a member of his United Methodist church to transport the churchgoer’s son to Tranquility Bay in Jamaica. The school is run by the World Wide Association of Specialty Programs, a company headquartered in Utah that owns eight schools in the United States and abroad, including Louis, Jr.’s destination. …

Three years ago, Strawn escorted Valerie Ann Heron, a 17-year-old from Montgomery, Ala., to Tranquility Bay. The school is the most hardcore in the WWASP system, the one to which students are sent when they repeatedly cause trouble at other schools. …

The world according to Strawn is based on choices and consequences. The world according to WWASP is designed to reinforce the same principle. Students enter Casa by the Sea at the first of six levels. To advance, they have to earn points through good behavior and schoolwork. Until they reach level three, which takes an average of three months, they can communicate with the outside world only through letters to their parents, which the school monitors. After that, they can talk on the phone to their parents but no one else.

Casa costs nearly $30,000 for a year – as much as a year’s tuition at Harvard – but offers no traditional academic instruction. Instead the schoolwork is self-paced; the students sit at tables with a workbook and take a test on a section when they decide they’re ready. They can retake the same test as many times as necessary to achieve an 80 percent passing grade. According to the Casa parent handbook, the school does not ensure that “the student will even receive any credits” or that the teachers who monitor the study sessions will have U.S. credentials. The school does not track how many of its students go on to high school or college. “You’re not going to have a teacher riding your back,” Dalton told Louis. “It’s all independent study. I just read the module, and did the test. I finished class in a week. That’s how easy it is.”

Students spend more time studying themselves than any other subject. They write daily reflections in response to self-help tapes and videos such as Tony Robbins’s Personal Power, You Can Choose, and Price Tag of Sex. They answer questions like “What feelings/emotions did I experience today and how did I choose to respond?”

Students also attend, and eventually staff, self-help seminars. The entry-level seminar, called Discovery, encourages participants to “learn to interrupt unconscious mental and emotional cycles which tend to sabotage results.” Kelly Lauritsen participated in Discovery at Casa in 2000 and said she was encouraged to hit the walls with rolled towels to release her anger. The price of tuition includes versions of these seminars for parents. Like Oprah on speed, sessions run nonstop from morning until midnight. Many parents and kids say they benefit from the self-analysis. “I didn’t realize that I had so much anger inside,” the 14-year-old girl whom Strawn transported in November wrote to her mother. …

Strawn told Louis that the hardest thing about Casa would be abiding by the school’s intricate system of discipline. “It’s not the big rules that get you. It’s all the little rules,” Strawn said. Casa docks students, according to its handbook, for telling “war stories” about inappropriate experiences, for being unkind to each other, and for making “negative statements about the School, the staff, the country, or other students.”

“There’s a whole page of rules,” said Shannon Eierman, who attended Casa last year. “That page is divided into sections of categories, into different codes, and a million subcategories. You could be there forever and the next day and learn a new rule.”

Students at Casa who commit “Category 5 infractions” can be punished with an “intervention,” for example, which is defined as being left alone in a room. Students say that the punishment can last for weeks, though Casa insists that the maximum penalty is three days. “I had to sit with crossed legs in a closet for three days,” said Kaori Gutierrez, who left Casa in 2001. Interventions may be used to punish out-of-control behavior, drug use, and escape attempts. But they’re also the way the school handles “self-inflicted injuries,” which can range from cracked knuckles to self-mutilation with pens or paper clips to an attempted suicide.

At the root of this long list of punishable violations is “manipulation,” which includes lying or exaggerating. Strawn repeatedly uses the word to dismiss a kid’s behavior – it’s the way he said Valerie Heron acted the day before her suicide. In the WWASP universe that he inhabits, manipulation is a term of art that refers to just about anything a teen does or says that the staff doesn’t like.

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Japan’s 99.8% criminal conviction rate

From Hiroshi Matsubara’s “Trial By Prosecutor” (Legal Affairs: March/April 2003):

In 1990, a retired high-court judge gave an influential speech that indicted the criminal justice system [of Japan], citing the nation’s 99.8 percent conviction rate as evidence that prosecutors, not courts, decide the fate of criminals. Criminal trials, he declared, are merely “formal ceremonies” en route to conviction. …

Prosecutors are vested with tremendous authority, and courts routinely defer to prosecutorial judgment. The prosecutor, in collaboration with law enforcement, is expected not only to enforce the laws but to decide how to use them to serve the public good. He is given far broader powers of investigation than his American counterpart, including the ability to search, seize, and interrogate without the interference of defense counsel. Justice in Japan is often equated to cooperating with the prosecutor. One of the earliest changes made by legislators to the American legal framework was the addition of a “societal duty” to submit to questioning upon arrest.

Because of their importance in the Japanese system, prosecutors have an overwhelming need to be right. A single loss can end their career. Prosecutors nearly always go to trial with a confession in hand, meaning that criminal courts are rarely asked to decide guilt or innocence. At trial, the counsel for the defendant usually spends his time trying to demonstrate the client’s contrition, his chances of being rehabilitated, and the low risk he poses to society – factors that affect the sentence, not the verdict.

Even in contested cases, the outcome for defendants is bleak. In American federal courts, about one-fifth of all criminal defendants plead innocent – and of those, one-third are subsequently convicted (state numbers indicate a similar trend). Meanwhile, in Japan, despite the fact that only 7 percent of defendants choose to contest their prosecution, the conviction rate in such instances is still about 99 percent. …

But in the aftermath of this unlikely victory, the system turned on Mainali. A higher court stayed his acquittal and ordered him detained while the finding at trial was reconsidered. In the United States, where defendants are protected against double jeopardy, Mainali’s acquittal would have ensured that he went free. Japan has no such standard: The opportunity to appeal a criminal acquittal is just one more weapon in the prosecutorial arsenal. Critics have pointed out that the stigma of losing a case puts prosecutors under great pressure to appeal each and every acquittal. In the notorious Kabutoyama case, prosecutors spent 21 years unsuccessfully appealing not-guilty verdicts handed down against a teacher charged with killing one of her students. …

Japanese prison terms, for both violent and nonviolent offenses, are shorter than those for comparable crimes in the United States. Murder, for instance, can carry a sentence of as little as three years. What is indisputable, however, is that in failing to emphasize procedural justice – a system based on rights and vigorous advocacy – Japan entrusts the integrity of its system to the good judgment of its prosecutors.

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Google’s data trove tempts the bad guys

From “Fuzzy maths” (The Economist: 11 May 2006):

Slowly, the company is realising that it is so important that it may not be able to control the ramifications of its own actions. “As more and more data builds up in the company’s disk farms,” says Edward Felten, an expert on computer privacy at Princeton University, “the temptation to be evil only increases. Even if the company itself stays non-evil, its data trove will be a massive temptation for others to do evil.”

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Why it’s hard for prisoners to sue prison systems

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

When inmates seek civil damages against the prison system, as [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] has done, they must prove not merely that prison officials should have done more to prevent abuse but that they showed “deliberate indifference” – that is, that they had actual knowledge that an inmate was at risk and disregarded it. Showing that a prison guard should have known is not enough, no matter how obvious the signs of abuse.

This standard was established by the Supreme Court in the 1994 case Farmer v. Brennan, in which a transsexual inmate imprisoned for credit card fraud sued federal prison officials for ignoring his rape behind bars. While the court affirmed that prison rape is a violation of an inmate’s constitutional rights and stated plainly that sexual assault is “not part of the penalty that criminal offenders pay for their offenses,” it set up formidable barriers to establishing the culpability of corrections staff. At the cellblock level, the “deliberate indifference” standard discourages prison guards from shining a light into dark corners. What they don’t know can’t hurt them.

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History & numbers on prison rape

From Daniel Brook’s “The Problem of Prison Rape” (Legal Affairs: March/April 2004):

In his 18 months at [the maximum-security Allred Unit in Iowa Park, Tex.], [Roderick Johnson, a 35-year-old African-American who is suing the Texas Department of Criminal Justice] did time as the property of the Bloods, the Crips, the Mandingo Warriors, and the Mexican Mafia, all of whom forced him to have sex with their members. They also sold his services to other inmates, usually for between $5 and $10. (A cigarette in Allred goes for $1.50.) …

The prevalence of rape in prison is fearsome. Line officers recently surveyed in one southern state estimated that one in five male prisoners were being coerced into sex; among higher-ranking officials, the estimate was one in eight. Prisoners themselves estimated one in three. (Female prisoners are the victims of rape as well, though they are usually assaulted by male guards, not other inmates; the phenomenon of male-on-male prison rape is generally studied separately.) …

The traditional rationale for prison rape is the lack of women, but most psychologists consider this facile. They see prison rape mainly as a means by which people who have been stripped of control over the most basic aspects of their lives – when to eat a meal, take a shower, or watch TV – can reclaim some sense of power. As one Louisiana prisoner, Wilbert Rideau, wrote, “the psychological pain involved in such an existence creates an urgent and terrible need for reinforcement of [a prisoner’s] sense of manhood and personal worth.” Others believe that prisoners become rapists out of fear of becoming victims themselves; it’s a choice between becoming predator or prey. The psychologist Daniel Lockwood, in his study Prison Sexual Violence, calls this strategy “pre-emptive self-defense.” …

IN 1826, IN WHAT WAS LIKELY THE FIRST PUBLISHED MENTION of prison rape in the history of the republic, the Rev. Louis Dwight wrote that “Boys are Prostituted to the Lust of old Convicts” throughout the institutions he surveyed from Massachusetts to Georgia. Dwight, the founder of the Prison Discipline Society of Boston, a prison reform group, wrote that “Nature and humanity cry aloud for redemption from this dreadful degradation.” It was not until the 21st century, however, that the nation saw its first anti-prison-rape legislation.

Last year, Congress passed the Prison Rape Reduction Act, which allocates $60 million to support rape-prevention programs run by federal, state, and local corrections staff and to aid investigations and punishment of perpetrators. The bill, which enjoyed bipartisan support in the House and the Senate, also requires states to collect statistics on prison rape.

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The Mann Act as problematic law

From Roderick M. Hills, Jr.’s “The Federalist Capers” (Legal Affairs: May/June 2005):

BY CONTRAST WITH THE COURT’S RECORD IN ECONOMIC MATTERS, the pre-New-Deal court was oddly reluctant to impose any limits on federally sponsored cultural conservatism. The Mann Act, which prohibited any person from aiding in the interstate transportation of a “woman or girl” for “prostitution, or debauchery, or for any other immoral purpose,” provides a useful illustration of the limits that judicially enforced federalism will go to.

Congress enacted the Mann Act in 1910 by comfortable majorities, in the wake of a national furor over allegations that young women were being kidnapped by syndicates of brothels and forced to work as prostitutes. In retrospect, historians explain the panic over “white slavery” as largely attributable to anxieties over immigration (the syndicates were said to be run by foreigners, especially foreign Jews) and urbanization, which led to a rise in the numbers of unaccompanied single women visible in public places.

Although the act was inspired by fears of coerced prostitution, it was soon enforced by the federal government as part of a crusade against nonmarital sex in general. As David Langum has shown in Crossing Over the Line, a large majority of the FBI’s Mann Act investigations during the 1920s was for noncommercial offenses, typically prosecutions of unmarried but romantically involved couples who crossed state lines. Even the purpose of protecting women from coercion was soon dropped. The Department of Justice took the view that the female “victim” should generally be prosecuted as a co-conspirator if she consented to “immoral” travel. Charges were frequently foregone if the “victim” married the perpetrator, suggesting that the statute was really a federal effort to protect males’ control over their wives and daughters. Though the federal government abandoned the effort to enforce the Mann Act in the 1930s against noncommercial sex, J. Edgar Hoover later used it in raids on brothels to collect information about public persons, like Charlie Chaplin, whom he regarded as subversive.

In short, the Mann Act was everything that you would expect from centralized enforcement of sexual morality – oppressive, gratuitous, and subject to all the abuses of prosecutorial discretion. The regulation of interstate transportation was a thin pretext for federal intervention, given that the act’s authors surely were not concerned that the states were somehow incompetent to regulate sexual morality within their boundaries.

In light of all of these concerns, you might expect that the Supreme Court would have found the Mann Act to be an easy case for invalidation under principles of federalism. But the court unanimously upheld the act in 1913 in Hoke v. United States, and then also upheld its application to noncommercial consensual sexual liaisons four years later in Caminetti v. United States.

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Arnold Rothstein, criminal kingpin

From Daniel A. Nathan’s “The Big Fix” (Legal Affairs: March/April 2004):

THE BLACK SOX SCANDAL was the sports crime of the 20th century. In a complicated and poorly conceived and executed conspiracy, several prominent Chicago White Sox ballplayers teamed up with gamblers to lose the 1919 World Series to the Cincinnati Reds. …

Of those artfully deceitful manipulators, Arnold Rothstein was the most skillful, a criminal kingpin who had his hand in all manner of illicit endeavors. Known as “the Big Bankroll” and “the Great Brain,” Rothstein helped invent organized crime, and his influence survived his death in 1928. …

There is no denying that Rothstein was clever. A former pool shark, Rothstein managed to graduate from being a small-time bookmaker to what one historian describes as an important “intermediary between the underworld and upper world of New York.” He established successful gambling houses in New York City and Saratoga (then, as now, a popular summer resort town for the well-to-do, especially for those who like to play the ponies) and political connections with Tammany Hall. Rothstein, Pietrusza notes, “pretty much invented the floating crap game,” the illicit diversion later made famous by the Broadway musical Guys and Dolls, on his way to becoming “America’s most notorious gambler.” He was a bootlegger, a labor racketeer, a racetrack owner, a real estate magnate, a bail bondsman, a loan shark, a fence, and, according to [David Pietrusza, author of Rothstein: The Life, Times, and Murder of the Criminal Genius Who Fixed the 1919 World Series], the “founder and mastermind of the modern American drug trade.”

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The history of solitary confinement

From Daniel Brook’s “A History of Hard Time” (Legal Affairs: January/February 2003):

Dickens wasn’t the first European intellectual who had crossed the Atlantic to visit Eastern State Penitentiary. A decade earlier, Alexis de Tocqueville had been sent by the French government to study the Philadelphia prison. …

What drew the attention of Americans and Europeans was an innovative method of punishment being pioneered at the prison called solitary confinement. While the practice had roots in medieval monasteries, where it was used to punish disobedient monks, solitary confinement came to prominence as a form of criminal punishment in the United States soon after the Revolution. …

In colonial America, capital punishment had been common, and not just for murder – burglary and sodomy could earn an offender the death penalty as well. For less serious offenses, criminals were generally subjected to physical punishments meted out on the public square. In a frontier nation of small towns, public embarrassment was seen as the key to deterring crime. Physical punishment, whether in the form of the stockade or the whipping post, was combined with the psychological punishment of being shamed in front of the community. Jails existed, but they were used mainly to hold criminals before trial and punishment. There were no cells and few rules: Men and women were housed together, and alcohol was often available. …

In 1787, at a soiree held in Benjamin Franklin’s living room, [Dr. Benjamin Rush of Philadelphia, a signatory of the Declaration of Independence & widely regarded as America’s foremost physician] presented an essay titled, “An Enquiry Into the Effects of Public Punishments Upon Criminals, and Upon Society.” Rush declared that “crimes should be punished in private, or not punished at all.” He claimed that public punishment failed to rehabilitate the criminal and risked letting the convict become an object of community sympathy. In lieu of public, physical punishments, Rush endorsed the creation of a “house of repentance.” Grounded in the Quaker principle that each individual is blessed with “Inner Light,” Rush envisioned a place of anonymity, solitude, and silence, where prisoners could dwell on their crimes, repent, and return rehabilitated into society. …

In 1821, the reformers finally convinced the Pennsylvania legislature to approve funding for Eastern State Penitentiary, which would be the largest public building in the country; with a price tag of nearly $800,000, it was likely the most costly one as well. No expense was spared: To prevent disease, each cell in the new prison was equipped with a toilet, a rare luxury at the time. When the penitentiary opened in 1829, President Andrew Jackson was still using an outhouse on the White House lawn.

The principles of the penitentiary system – silence, solitude, surveillance, and anonymity – were incorporated into the architectural plan. Eastern State was designed by John Haviland, a young architect, who proposed a hub-and-spokes model that allowed for constant surveillance. Inmates were housed in 8-by-12-foot cells arranged along a series of cellblocks radiating out from a central observation tower.

Each prisoner remained in his cell at all times, save for a brief daily exercise period held in an individual pen adjoining each cell. Prisoners ate their meals in their cells and did small-scale prison labor there like shoemaking. On the rare occasions when prisoners were allowed to leave their cells, they were prevented from interacting with other prisoners by hoods they were forced to wear to protect their anonymity. They were also forced to use numbers instead of names for the same reason. Silence was maintained at all times in the prison, and reading the Bible was the only activity other than labor that was permitted. Reformers believed that cutting inmates off from the world would foster meditation that would lead to rehabilitation, so visits from family or friends were prohibited. On average, inmates spent two to four years alone in their cells, underneath a single round skylight, known in the prison as the “eye of God.”

The expense of the building limited its influence in the United States, but Eastern State was widely copied in Europe and even in Latin America and Japan, where economic conditions made the model more attractive. Over 300 prisons were built on Eastern States’ hub-and-spokes model, in cities as diverse as London, Paris, Milan, St. Petersburg, and Beijing. Architectural historians consider the hub-and-spokes penitentiary to be the only American building type to have had global influence until the first skyscrapers began to rise in Chicago and New York in the 1880s. …

Dickens, who also interviewed prisoners at Eastern State, was far more skeptical. In his travelogue, American Notes, he described Philadelphia’s system of “rigid, strict, and hopeless solitary confinement” as “cruel and wrong.” …

Dickens didn’t accept that the penitentiary represented human progress over the days of floggings on the public square, or as his prose suggested, even the medieval torture chamber. “I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body.” …

In New York, at the Auburn prison near Syracuse and later at Sing Sing in Westchester County, a modified system of solitary confinement was being put into practice. While inmates spent their nights in solitary cells, they worked together silently in a common area during the day. This allowed wardens to set up profitable prison industries that could offset the costs of prison construction. …

Despite this vehement defense of the solitary system, in the period after the Civil War, the regimen at Eastern State was slowly abandoned. … Without enough funding to keep the system running, inmates were frequently doubled up in cells. In 1913, the solitary system was officially abandoned. Solitary confinement became a short-term punishment for misbehaving prisoners rather than the prison’s standard operating procedure. …

More than half of all U.S. prisons in use today were built in the past 25 years, to house a prison population that has risen almost 500 percent over roughly the same period. The United States has the highest incarceration rate in the world. In raw numbers, it has more prisoners than China, a country with over four times as many people. …

Supermax prisons – high-tech, maximum-security facilities – were the answer politicians and corrections departments were looking for to solve the problem of increasing violence in prisons. Following Marion’s lead, corrections departments around the country began building supermax prisons, or adding supermax wings to their existing prisons to handle the growing number of violent prisoners who could not be controlled in the traditional prison system. Today there are 20,000 supermax inmates in the United States, roughly 2 percent of the total prison population, though in some states the proportion is much higher: In Mississippi, 12 percent of prisoners live in supermax units.

The system of punishment in supermax units resembles nothing so much as the system of punishment pioneered at Eastern State. The Pelican Bay Security Housing Unit, which cost California taxpayers a quarter of a billion dollars, is perhaps the most notorious supermax. From the air it looks like a high-tech version of the Philadelphia prison: Its hub-and-spokes design is clearly descended from John Haviland’s 19th-century architectural plan. Inmates in the SHU (known as “the shoe”) are kept in their cells close to 24 hours a day. As at Eastern State, inmates eat in their cells and exercise in isolated attached yards. …

Dr. Stuart Grassian, a Harvard Medical School psychiatrist who was given access to SHU inmates to prepare for providing expert testimony in lawsuits against the California Department of Corrections, has concluded that the regimen in security housing units drives prisoners insane, and he estimates that one-third of all SHU inmates are psychotic. He writes of what he calls “the SHU syndrome,” the symptoms of which include self-mutilation and throwing excrement.

Dr. Terry Kupers, a psychiatrist who has interviewed supermax inmates, writes that a majority of inmates “talk about their inability to concentrate, their heightened anxiety, their intermittent disorientation and confusion, their experience of unreality, and their tendency to strike out at the nearest person when they reach their ‘breaking point.’ ” Even those inmates who don’t become psychotic experience many of these symptoms. Those least likely to become mentally ill in solitary confinement are prisoners who can read, because reading prevents the boredom that can lead to insanity. (The human psyche appears not to have changed since the days of Eastern State, when an inmate told Alexis de Tocqueville that reading the Bible was his “greatest consolation.”) Because roughly 40 percent of U.S. prisoners are functionally illiterate, however, reading can provide solace and sanity to only a fraction of those behind bars.

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Alcatraz: reality & Hollywood

From Dashka Slater’s “Lights, Camera, Lockdown” (Legal Affairs: May/June 2003):

The first two Alcatraz films, Alcatraz Island and The Last Gangster, arrived in theaters in 1937; the most recent, Half Past Dead, came out last November. In the 65 years in between, Alcatraz has been the subject of some two dozen movies and has made guest appearances in many more. There have been prison movies, horror movies, comedies, romances, action films, cartoons, and even porn flicks set on Alcatraz. It’s rare for a Hollywood set to last even a few weeks after a film is complete, but the prison is so popular with filmmakers that a meticulous replica of its cellblock, first created for the Clint Eastwood film Escape From Alcatraz, has resided on a Culver City soundstage for more than 20 years. It has provided penal ambience for hundreds of movies, television shows, commercials, and music videos. …

THE FEDERAL PENITENTIARY AT ALCATRAZ opened on August 22, 1934. It was to be a prison like no other, a high-tech, escape-proof, super-maximum warehouse for the nation’s most incorrigible bad guys. …

The secrecy had been designed to deflate the celebrity reputations of gangsters like Al Capone, who had enjoyed special treatment at other prisons. James A. Johnston, the prison’s first warden, believed that egoism was the chief failing of recidivists. His prescription was total isolation and total anonymity. At Alcatraz, he promised, Capone and his ilk would become “forgotten men.” …

The articles emphasized the prison’s harshness and brutality, chronicling its excruciating rule of silence, which required prisoners to stay mute except during a two-hour recreation period on Sundays, and describing the dank “Spanish dungeons” where prisoners were sent for disobeying rules.

Many of these accounts were embellished, and some of the more lurid tales were pure fabrications. Alcatraz was tough but not barbaric. Inmates were guaranteed the basics of food, shelter, clothing, and medical attention; everything else – work, exercise, visitors – had to be earned. Minor infractions – failing to finish the food on your plate, talking while in the cellhouse, sassing a guard – brought a swift reduction in privileges. More serious violations, like taking a swing at a guard, sent prisoners to the chilly darkness of “the hole.” Particularly obstreperous prisoners were hosed down with cold water from the bay, a practice that earned the warden the nickname “Saltwater” Johnston.

Alcatraz was hardly a country club, but it was still one of the better-run prisons in the United States. Inmates had their own cells, an improvement over bunking with another con. These five-by-nine-foot cells were cramped, but each had its own light and running water, and prisoners could order as many books as they wanted from the prison library. The cellblock was kept at a comfortable 70 degrees and the food was considered some of the best in the prison system. …

Throughout the ’30s, ’40s, and ’50s, films like Train to Alcatraz, Prison Train, King of Alcatraz, San Francisco Docks, and The House Across the Bay picked up the mythology of the “Inside Alcatraz” accounts and ran with it, depicting the prison as a place that made even hardened cons quake in their leg irons. …

… fewer than 300 prisoners [were] kept there at any one time …

The island’s reputation was increasingly out of step with the times, and the prison was facing more tangible problems as well. After years of exposure to the salt air, the fortress was literally falling apart, and the cost of repairs was prohibitive. The prison closed in 1963 …

IN 1972, AFTER LANGUISHING IN BUREAUCRATIC LIMBO for nearly a decade, Alcatraz became a national park, a move that allowed Hollywood to begin making movies on the Rock itself. …

The Park Service originally thought interest in the prison would peter out within five years. Instead, the park receives 1.5 million visitors a year, about five times as many as Antietam or Little Big Horn and nearly as many as Mt. Rushmore. …

Hollywood is responsible, in large part, for making the former penitentiary recognizable as a prison rather than just a decaying collection of empty Depression-era buildings. Escape From Alcatraz brought fresh coats of paint to the mess hall and D block, as well as the yellow stripes (which never existed when the prison was open) that now run down the main cellhouse corridor. Murder in the First funded the restoration of a guard tower on the dock, and The Rock paid for the removal of hazardous waste. Leftover Hollywood props – metal detectors, cell cots, benches, even pillows – have stayed on as permanent adornments, giving tourists a sense of what the penitentiary was like when it was operating. Over time it has become difficult to distinguish Hollywood’s Alcatraz from the real one.

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