Breaking the Law to Help Enforce It?
The Student Who Put Boxcutters on Planes

By JULIE HILDEN


julhil@aol.com
----
Tuesday, Oct. 28, 2003

Sometimes you have to be cruel to be kind - or so the song claims. Those who expose security flaws by breaking security, and thereby breaking the law, seem to agree.

Consider Nathaniel L. Heatwole, a twenty-year-old North Carolina college student. Heatwole is charged with leaving bags containing sets of apparently terroristic materials - box cutters, bleach, modeling clay (apparently intended to mimic plastic explosives), and matches - in the bathrooms of two Southwest Airlines planes.

Apparently, the bags were not found there for over a month. When they finally were discovered, airlines reportedly had to embark on a labor-intensive search of planes nationwide, to make sure that no other such items had been placed aboard.

Last Monday, October 20, Heatwole appeared before a Baltimore federal district court. He is being charged with a felony: Carrying prohibited items onto an airplane. If convicted, he could fail serious jail time - up to 10 years. (As a first offender, however, he is likely to receive a sentence on the low end of that range.)

So far, the case against Heatwole seems open-and-shut - at least technically. But of course, there's a twist: Unlike a typical culprit, Heatwole apparently meant no harm. Indeed, according to the notes he left in the bags, he meant to illustrate flaws in airline security - not to exploit them.

Does that mean Heatwole should be treated differently - and much less severely - than an evil-intentioned culprit who did the very same thing?

Heatwole Should Be Sentenced Leniently Because His Actions Had Benefits

The first -- and most obvious -- reason Heatwole should be sentenced comparatively leniently derives from the balance of the costs and benefits of his actions.

At this point, it seems quite clear that Heatwole performed a service to the country: He alerted us that airline security still leaves a great deal to be desired. His stunt has made headlines - as he must have known it would. And those headlines have political power. Doubtless, pressure will now be exerted to tighten up airline security, which is a good thing.

However, Heatwole's stunt also created risks - partially because Heatwole was foolish in using items that were actually prohibited, not just items that appeared to be prohibited. Granted, he did use modeling clay, not explosives. But he also should have swapped a harmless liquid for actual bleach; substituted fake matches for real ones; and left out the box cutters entirely.

Still, the risks Heatwole created were relatively modest. Heatwole's actions, while dangerous, were not extraordinarily so. Realistically, the chance was very slim that someone else would go into the airline bathroom; spot the items Heatwole left there; and then impulsively use them in a terrorist act.

Besides creating that risk, the stunt also caused some other significant costs. Searching every airplane in the country, as reportedly may have been done, is a daunting task. Finding Heatwole - who wasn't brave enough to sign his name to his notes - consumed precious investigative resources too.

However, as I've pointed out in an earlier column about anthrax hoaxsters - who have far less admirable motives than Heatwole - costs like these can be addressed through civil liability, not the criminal law. It's one thing to ask Heatwole to pay for the costs he caused, and quite another to send him to jail.

Thus, these costs are properly taken into account in figuring out what fine, or civil settlement, Heatwole should pay. But they should not pay a large role in assessing what prison term he should serve -- since they can be recouped separately.

The benefits of Heatwole's actions, in contrast, should be a factor toward mitigating his sentence. If he's going to get the blame, he ought to get the credit, as well.

Heatwole Should Be Sentenced Leniently to Strike the Right Deterrent Balance

The second reason to sentence Heatwole leniently is that to do so otherwise would upset a delicate equilibrium. This equilibrium reflects the reality that we are all better off if, in certain areas, there is a modest amount of lawbreaking that goes on alongside law enforcement - and, when caught, is not overpunished.

For instance, sometimes society is better off when there are illegal information "leaks" - such as when Jeffrey Wigand exposed his tobacco company employer despite a confidentiality agreement (as I discussed in a prior column); and when websites like FuckedCompany.com post confidential corporate information of great public interest (as I discussed in another column.) Similarly, hackers who expose security flaws, but don't exploit them, can also serve society's interest at the very same time that they are breaking the law.

In areas such as these, we need to get used to the idea that while breaches should be punished, they should be punished only moderately - because these breaches also have benefits.

Sending Heatwole to jail for years would discourage many future Heatwoles from acting - and it's good for America to have a Heatwole once in a while. Letting Heatwole off the hook entirely, however, might create too many - and more dangerous - Heatwoles. In sum, it's important to preserve the equilibrium, and punishing Heatwole as if he were simply a terrorist, would likely destroy it.

Heatwole Should Be Sentenced Leniently For Fairness Reasons

Finally, Heatwole should be sentenced leniently for fairness reasons. It seems quite clear that if he'd been a professional journalist (and had left out the boxcutters), he might never have been prosecuted at all.

If you doubt it, consider a similar stunt that ABC News has now carried out two years in a row - each time, close to the anniversary of September 11, 2001. In 2002, with the advice of three nuclear terrorism experts, ABC News put together a suitcase bomb that, according to one of the experts, "replicate[d] everything but the capability to explode." It contained 15 pounds of depleted uranium, covered by a steel pipe lined in lead. After being carried through Europe, the suitcase entered New York Harbor on July 29. It escaped detection.

Then, this year, ABC News repeated the stunt - with the suitcase traveling from Jakarta, Indonesia, to Los Angeles. It also escaped detection.

In both cases, the government investigated the incident, but no charges were ever brought. Indeed, Senator Charles Grassley wrote a letter to Attorney General John Ashcroft and Tom Ridge criticizing the government's investigation on the ground that it had "a chilling effect on legitimate investigative reporting" in the ABC News case. And Senator Diane Feinstein complimented ABC on having exposed "the soft underbelly of national security and homeland defense in the United States."

ABC News, then, was not prosecuted even for a stunt that, like Heatwole's, ate up investigative time and resources -- and then was repeated at the same time, the next year! Put another way, the news organization was not prosecuted even for recidivism.

Of course, it may be fair to make some distinction between ABC News (which says its materials were legal, and posed no risk) and Heatwole, who was less careful about the materials he used. But it seems unfair to let ABC News get off scot free, while at the same time locking up Heatwole and throwing away the key.

(Significantly, Heatwole's is the not the first case in which individuals who do not enjoy the protective cover of a journalistic institution have suffered. In the context of the war on Iraq, "human shield" Faith Fippinger, as I discussed previously on this site, has been targeted for doing some of the same things journalists apparently have done with impunity. And when the government subpoenaed writer Vanessa Leggett's interview notes in a murder case, as I noted in another column for this site, it contested whether she even was a journalist in the first place because she was acting on her own behalf as a would-be author.)

The right to dissent, the right to investigate, and the right to protest are not the exclusive province of those who belong to the institutions of mainstream journalism. Among the lessons of the Heatwole case is that a single college student can mount a powerful and important expose. If Heatwole is sentenced harshly, it will only show that we have not learned that lesson well enough.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Her first novel, 3, was recently published by Plume Books. It will also soon be published in the U.K., by Bantam, and in French translation, by Actes Sud. Kirkus Reviews wrote about 3, "When tragedy intervenes, it's no surprise but shocking nonetheless -- testament to Hilden's rather uncanny abilities." Hilden maintains a website at www.juliehilden.com that includes MP3 and text downloads of the novel's first chapter.

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