Re: Registration Code Resident Evil 6l
Berry Spitsberg
While the steps taken to inject the malware into the firmware are somewhat involved, the end result is quite simple: creating a resident software evil that makes sure companion malware is loaded up when a compromised system boots up.
The dissent relies substantially on Toussie, supra, 397 U.S. 112, but that decision is distinguishable in several respects. To begin, the case involved a different statutory scheme addressing a different substantive evil enacted by a different legislative body. While the Supreme Court in Toussie provided useful guidance for determining whether an offense is continuing in nature, that guidance was advisory only and not premised on any constitutional mandate or general rules of construction. (See Toussie, supra, 397 U.S. at p. 133 [90 S.Ct. at p. 870] (dis. opn. of White, J.).) Nor did the court purport to formulate an analytical template applicable to all failure-to-register statutes. On the contrary, it reiterated the fundamental principle that the touchstone of all statutory interpretation is legislative intent. (Id. at p. 115 [90 S.Ct. at p. 860]; see, e.g., Study v. State (Ind.Ct.App. 1992) 602 N.E.2d 1062, 1068 [finding legislative intent that failure to register with securities commissioner constituted continuing offense]; State v. Morse, supra, 54 N.J. at p. 35 [252 A.2d at p. 725] [finding it "more consonant with the objective of the statute to deem noncompliance [with registration requirement] a continuous offense"]; John v. State, supra, 96 Wis.2d at pp. 190-192 [291 N.W.2d at pp. 505-506] [finding failure to report change in status of household a continuing offense based on legislative intent].) Perforce, the intention of Congress concerning selective service registration can only marginally, if at all, inform our present inquiry. [15 Cal. 4th 531]
Furthermore, although the high court was "convinced" that construing failure to register for the draft as an instantaneous offense would not "significantly impair either the essential function of raising an army or the prosecution of those who fail to register" (Toussie, supra, 397 U.S. at p. 123 [90 S.Ct. at p. 864]), for the reasons discussed above we are not similarly convinced regarding section 290(f). As long as a reasonable number of eligible draftees comply, the noncompliance of some will not discernibly frustrate the purpose of selective service registration. By contrast, failure by any sex offender to comply with any provision of section 290, including subdivision (f), would substantially undermine the goal of assuring that such persons "shall be readily available for police surveillance at all times ...." (Barrows v. Municipal Court, supra, 1 Cal.3d at p. 825.) The very nature of the "substantive evil [the Legislature] sought to prevent" virtually compels our conclusion since "each day's acts [leaving the offender's location unknown] bring a renewed threat." (Toussie, supra, 397 U.S. at p. 122 [90 S.Ct. at p. 864]; United States v. Bailey, supra, 444 U.S. at p. 413 [100 S.Ct. at p. 636].)
Referring to the draft registration law's history, the court continued, in language particularly relevant to the case at hand: "There is also nothing inherent in the act of registration itself which makes failure to do so a continuing crime. Failing to register is not like a conspiracy which the Court has held continues as long as the conspirators engage in overt acts in furtherance of their plot. [Citations.] It is in the nature of a conspiracy that each day's acts bring a renewed threat of the substantive evil Congress sought to prevent. The fact that the first draft registrations clearly were viewed as instantaneous events and not a continuing process indicates that there is nothing inherent in the nature of failing to register that makes it a continuing offense." (Toussie, supra, 397 U.S. at p. 122 [90 S.Ct. at p. 864].)
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