A controversial proposal that would have seen judges directed to consider the use of Internet proxies when handing down sentences for online crimes has been rejected by the US Sentencing Commission. The initial proposal would have directed judges to consider the use of a proxy as an indication of the sophistication and intent of those who have been convicted, but civil liberties groups and technology advocates strongly opposed the matter, given that there are a variety of common and legitimate uses of proxy servers. The arguments put forth by these advocates apparently held the day.

In the US legal system, being convicted of a crime is only the first step; sentencing can determine just how significant the conviction winds up being. Sentences are typically derived from a combination of mandatory lengths, sentencing guidelines, and the discretion of the judge. At the federal level, the sentencing guidelines are formulated in part by the US Sentencing Commission, a branch of the judicial system that consults with Congress to set sentencing policy.

Since a sentence is meant to take into account things like the intent and societal risk involved with a crime, the guidelines often provide objective measures by which judges can evaluate these generally subjective issues. In keeping with that, Congress last year passed a law that indicated that the level of skill and sophistication demonstrated in the perpetration of an online crime should be considered when sentences are handed down. That left it up to the Commission to decide how to identify things like sophistication, and how any indications of it should change the sentence.

As we noted in our past coverage, offline means of concealing the identity of perpetrators, such as shell corporations, are often considered an indication of this sort of sophistication by existing sentencing guidelines, and the Department of Justice argued that similar standards should apply online. So, it urged that the measure of sophisticated Internet crime should include "using any technology or software to conceal the identity or geographic location of the perpetrator ordinarily indicates sophisticated means." The details appear on page 16 of this Federal Register publication.

Unfortunately, that overly broad language would include the use of proxy servers, which have a variety of legitimate uses. For academic and business purposes, things like local caches and VPN systems use proxy servers to reduce the total amount of outbound internet traffic and to provide access to resources that are otherwise restricted, respectively. Although these may require sophisticated technology skills to set up on the network end, from a user's perspective, they can often be accessed without any intervention whatsoever. Even a deliberate choice to use a proxy server for privacy reasons when Web browsing is no more complicated than obtaining the name of the server and entering it in the browser's preferences.

So the proposed guideline appears to have been deeply flawed, as it attempts to punish people for actions they may have been unaware of, and confuses a technology for an intent. Several people who testified before the Sentencing Commission did their best to point this out.

And, apparently, they were successful. The Associated Press is reporting that the proposal was rejected by the commission in Wednesday's vote. Judges will apparently have to determine the intent of online criminals the old-fashioned way: by examining the totality of their actions.