So, as I feared,¬†Lori Drew has been found guilty. Not of the most serious charge, a conspiracy charge, but of three misdemeanor counts (for three separate times she posed as the fictitious “Josh Evans.”) Still, that’s a potential 3-year jail term.
But that’s a minor matter for the public, serious as it is for the Drews and Meiers. The important point is the one the New York Times quotes attorney Matthew L. Levine as making:
As a result of the prosecutor‚Äôs highly aggressive, if not unlawful, legal theory, it is now a crime to ‚Äòobtain information‚Äô from a Web site in violation of its terms of service. This cannot be what Congress meant when it enacted the law, but now you have it.
It wasn’t what Congress had in mind. Congress was legislating against hacking the databases of banks and credit card companies. The “unauthorized access” was password cracking and the like, not violation of the obscure terms in those multipage agreements we all click “I agree” on without reading them. The “obtaining information” was was getting credit card and bank account numbers, not the thoughts of teenage girls who happened to be expressing those thoughts on their MySpace pages.
In Thomas Paine’s The Rights of Man, Christopher Hitchens quotes an argument Paine made in France against the execution of King Louis XVI during the French Revolution. It is chillingly apt:
[Paine] argued that ‘an avidity to punish is always dangerous to liberty’ because it can accustom a nation ‘to stretch, to misinterpret, and to mis-apply even the best of laws. ‚Ä¶ He that would make his own liberty secure must guard even his own enemy from repression; for if he violates this duty he establishes a precedent that will reach to himself.’
Paine lost that argument, and the defense lost the Lori Drew case. Drew was convicted on charges completely unrelated to the awful fact that Megan Meier committed suicide. She would be just as guilty of having violated the Computer Fraud and Abuse Act if her daughter and Megan Meier had returned to being friends and all had lived happily ever after. The only difference is that the federal prosecutor would never have charged her under those circumstances. His interpretation of the law will give federal prosecutors enormous discretion about whom to put in jail simply because, as he said in about the Lori Drew trial,¬†‚ÄúThis was obviously a case that means a lot to me.‚Äù That should not be the standard for who gets prosecuted under a law and who doesn’t.
Postscript. Some commenters over at the Volokh Conspiracy have noted another interesting consequence of the fact that violation of a Web site’s Terms of Service can now be interpreted as a serious crime: When you agree to the typical ToS, you are agreeing that the site can change the ToS at any time and it is your own damned fault if you violate them because you didn’t check to see that they had changed! The relevant ToS in this case are MySpace’s, so let’s see what they say:
MySpace.com may modify this Agreement from time to time and such modification shall be effective upon posting by MySpace.com on the MySpace Website. You agree to be bound to any changes to this Agreement when you use the MySpace Services after any such modification is posted. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
The federal prosecutor has apparently established his right to construe “unauthorized access” to include access in violation of terms to which the user never explicitly agreed, if a clause like this is in the original agreement. Now if you’ll excuse me, I have to go back to the other side of the looking-glass ‚Ä¶.