Kaufman, Zachary D., Digital Age Samaritans (December 1, 2020). Boston College Law Review, Vol. 62, No. 4, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3741017

“Modern technology enables people to view, document, and share evidence of crimes contemporaneously or soon after commission. Electronic transmission of this material — including through social media and mobile devices — raises legal, moral, and practical questions about spectators’ responsibilities. In the digital age, will these actors be bystanders or upstanders? What role can and should the law play in shaping their behavior? This Article argues that certain witnesses who are not physically present at the scene of a crime should be held criminally accountable for failing to report specified violent offenses. Focusing on rape, police brutality, and other misconduct, this Article demonstrates that recent technological innovations create new opportunities and challenges to pursue justice and accountability. Such culpability centers on “Bad Samaritan laws”: statutes that impose a legal duty to assist others in peril through intervening directly (also known as “the duty to rescue”) or notifying authorities (also known as “the duty to report”). However, many of these antiquated laws arguably apply only to witnesses who are physically present, which limits their potential effectiveness today. Not all virtual witnesses should be subject to liability. To consider which categories of actors may warrant criminal punishment, this Article introduces a novel typology of bystanders and upstanders in the digital age. This typology draws on an original case study of the first known sexual crime livestreamed in the United States by a third party, which more than 700 people viewed. Harnessing insights from that case study and other episodes, the Article recommends that legislators should modernize, refine, and proliferate Bad Samaritan laws and that law enforcement should enforce these statutes or leverage them to obtain witness testimony. To that end, the Article proposes a model duty-to-report statute that includes features such as applicability to virtual presence and reasoned exemptions for noncompliance.”