Wednesday, December 3, 2008

Damn Vigilanties Again

This subject may have been done to death already, but I feel it bears repeating for its significance. Last Wednesday, the Lori Drew 'cyberbullying' case ended in three misdemeanor convictions under the Computer Fraud and Abuse Act, a 1986 US Federal law intended to address illegally accessing a computer. The interpretation of the act by the Court to cover violations of a website Terms of Service - a circumstance obviously not considered in the law's formulation - may have profound effects on the common use of the Internet under US law. Referring to an amicus curiae brief filed by online rights organizations and law professors, PJ at Groklaw breaks down the implications of the decision to support her assertion that "unless this case is overturned, it is time to get off the Internet completely, because it will have become too risky to use a computer."

I have a lot of respect for PJ. Some folk think she goes off the deep end at times, but I don't think so here. Referring to MySpace she writes:
"...If it respects this decision, I don't feel safe there. I didn't even want to visit its web site to try to find its terms of use. But according to this decision, MySpace gets to be the one that decides if we've violated their terms:
'MySpace users agree that the social networking site has the final say on deciding whether content posted by users violates a long list of regulations contained in the agreement.'
There is no recourse. They make the law and if you mess up, you go to jail. Since when do web sites have the authority to jail anyone?"

Plain and simple, the ruling says that violating the Terms of Service of a website is a federal crime. The original idea behind the Computer Fraud and Abuse Act was to make "unauthorized access to a computer" - that is, breaking in, a federal crime. Because Lori Drew violated the Terms of Service, her access to MySpace servers was unauthorized and therefore she is convicted of computer hacking. Essentially, she was convicted of using an online social network to be an idiot. Now we're all in trouble.

How is that justice for Megan Meiers? How is that justice for any of us? As the amicus brief points out, treating a Terms of Service violation as a federal offense is absurd. And this should concern you why? Well, how about if someone under 18 does a Google search (Google's Terms of Service state you must be 18)? They violated the Terms of Service. That by itself is hacking. And don't you worry, Google keeps good track of searches. How many of your children use Google to do their homework?

Orin Kerr, one of Lori Drew's attorneys, is a regular contributor to the legal blog The Volokh Conspiracy. He has a summary here, and has updated the blog's terms of use:
"Any accessing the Volokh Conspiracy in a way that violates these terms is unauthorized, and according to the Justice Department is a federal crime that can lead to your arrest and imprisonment for up to one year for every visit to the blog."

What happened to Megan Meiers was a tragedy, but it wasn't a crime. If the US Attorneys office is willing to jump in with the Torch & Pitchfork crowd and demand that Lori Drew be convicted of something, anything, just to prove a point, we all have a lot to lose. To paraphrase Oliver Wendall Holmes: great cases make bad law. Watch your cyber-ass.

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