1. Introduction

   In a June 17, 2003 U.S. Senate Judiciary Committee hearing, entitled
   "The Dark Side of a Bright Idea: Could Personal and National Security
   Risks Compromise the Potential of Peer-to-Peer File-Sharing
   Networks?," U.S. Senator Orrin Hatch (R-Utah), the chair of the
   committee, said he was interested in the ability to destroy the
   computers of people who illegally download copyrighted material.  He
   said this "may be the only way you can teach somebody about
   copyrights."  "If we can find some way to do this without destroying
   their machines, we'd be interested in hearing about that," Mr Hatch
   was quoted as saying during a Senate hearing.  He went on to say "If
   that's the only way, then I'm all for destroying their machines."
   [Guardian]

   Mr. Hatch was not the first U.S. elected official to propose
   something along this line.  A year earlier, representatives, Howard
   Berman (D-Calif.) and Howard Coble (R-N.C.), introduced a bill that
   would have immunized groups such as the Motion Picture Association of
   America (MPAA) and the Recording Industry Association of America
   (RIAA) from all state and federal laws if they disable, block, or
   otherwise impair a "publicly accessible peer-to-peer file-trading
   network."

   The attitude of some of the copyright holders may be that it's OK for
   a few honest people to have their computers or networks executed as
   long as the machines and networks of the dishonest are killed.  But
   it is not likely that any measurable error rate would be acceptable
   to the public.  Clearly, anyone implementing laws of this type need
   some way to reduce the error rate and be sure that they are dealing
   with a real bad guy and not an innocent bystander.

   Part of determining if someone is a "bad guy" is determining his or
   her intent.  Historically, western jurisprudence has required that
   prosecutors show that a person intended to commit a crime before that
   person could be convicted of committing that crime.  [Holdsworth,Restatement,Prosser,United States v. Wise,Garratt v. Dailey]
   Because it can be quite difficult to establish a person's intent
   lawmakers have, in some cases, reduced the requirement for
   prosecutors to establish intent and mere possession is now proof
   enough of intent.

   This memo proposes a set of requirements for a new protocol to be
   used by prosecutors to determine a person's intent, thus reducing the
   need to dilute the historical legal requirement to show intent and by
   groups such as the MPAA and RIAA to be sure they are dealing with
   lawbreakers and not 60 year old non computer users.