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Lori Drew is the Missouri woman implicated in the death of Megan Meier, who committed suicide after being jilted on MySpace by the fictitious boy allegedly created by Drew and a teenage accomplice. When we finished Blown to Bits, Drew had not been charged with any crime, because no statute seemed to cover what she had done, horrible though it was. We wondered in the book if she might simply have done something evil but lawful.

Drew is now being tried in California, not Missouri, on federal charges, of violating the Computer Fraud and Abuse Act. Interpreting this law to cover what Drew did is an overreach with scary implications. Let’s look at the language under which she is being charged, section a(2)(c):

whoever … intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains …  information from any protected computer if the conduct involved an interstate or foreign communication …

The government’s position is that by creating a hoax MySpace account, Drew violated this section because MySpace’s computers were in California, across state lines, and she obtained from that computer information about Megan Meier.

Now this is not what Congress had in mind when it wrote this language, and it is not the way it has ever been applied. This is a clause about computer break-ins (“hacking”). The “information” the law is talking about is information stored in the computer. It’s not a law about getting someone to tell you something using email or instant messaging. And the “unauthorized access” is also about breaking in to systems that are protected by passwords, for example, not about violating the terms of service of a service provider such as MySpace by misrepresenting who you are.

I understand the temptation to stretch to find a tool to throw at Lori Drew, but think of how many other situations would be covered if this clause were read that broadly. Fib about your age on a dating site? Jail time. Use Google or set up a Gmail account when you are only 17 years old? Jail time (2.3 of the TOS reads, “You may not use the Services and may not accept the Terms if you are not of legal age to form a binding contract with Google.”) Use different middle initials on different accounts so you can see who’s leaking your name to direct mailers? Jail time.

Would the Feds go after anyone for such minor offenses? If Lori Drew is convicted under this law, they will have carte blanche to do exactly that. That is precisely the point — they don’t really care if Lori Drew created a hoax MySpace account, they want to get her for causing Megan Meier’s death. But they can’t think of a way to do that, so they are turning MySpace hoaxing into a federal crime.

By that standard, if they can’t get you for what you’ve really done, they may settle for jailing you for failing to update your Facebook profile when you change jobs. After all, you agreed to do that when you signed up:

[Y]ou agree to ‚Ķ provide accurate, current and complete information about¬†you as may be prompted by any registration forms on the Site (“Registration¬†Data”) ‚Ķ [and] maintain and promptly update the Registration Data, and any¬†other information you provide to Company, to keep it accurate, current and¬†complete.

(Thanks to the amicus brief by Phil Malone of the Berkman Center, among others, for these hair-raising examples.)

I hope Lori Drew burns in hell, if there is one. But the federal government should not take us all down with her in its zeal to get her punished on earth as well.

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For years, people have been observing that the wonderful surfeit of information sources available through the Web can result, paradoxically, in a narrowing of our perspectives. In the political realm, for example, liberals can now get all their news from liberal sites, and conservatives from conservative sites. As Cass Sunstein observes in Infotopia, speaking and listening only to people who think like us has a polarizing force — everyone just gets more extreme.

The Boston Globe has a good review today of a paper published in Science some months ago reporting that groupthink is affecting even scientific research publications — the lists of cited papers are becoming more homogeneous, not more varied, as the information sources diversify. There is even an analogy with popular music — yes, there is a “long tail” of music now available for special tastes, but the small number of big winners dominate music sales now more than ever. And so it is with scientific papers — with most available online, a smaller number are cited more often than in the past.

The paper suggests that Web search is fundamentally different from search through paper records, which puts more context around sources and causes us to be more critical before pursuing a reference. Clicking on links thoughtlessly is just too easy, and we are losing something in the process.

Hardly an open-and-shut case — the article mentions several dissents — but it makes sense to me.

Tennessee State University and Hampton University, two historically black institutions, are blocking students’ access to JuicyCampus.com, the leading site for vicious, anonymous gossip about (the sex lives of) college students. The administrators who made the decision cite the Virginia Tech tragedy. One said, “We need to be more thoughtful, and we really need to be more careful in targeting and attacking each other.”

I understand the impulse, but limiting what speech reaches a college campus is not a good idea. The arguments are hard to sustain. The administrator goes on to say, “¬†JuicyCampus gossip blog does not fit with the legacy, spirit, and reputation of Tennessee State University.” Surely true — so will he remove from the libraries works that do not meet that standard? Or filter students’ email to make sure their communications are fitting?

Of course, a blog is not exactly a book and not exactly an email, but can we define the ways in which it’s different that would justify a different standard?

We keep saying that the digital explosion has good and bad sides. For every meatspace tradition that dies because physicality isn’t what it used to be, a dozen digital innovations are born. But this morning, I’m going to grieve an irreplaceable loss.

The Out-Of-Town News Stand in Harvard Square is closing.

I remember how astonishing it was in 1964 when I arrived at Harvard from Wellesley, Massachusetts — hardly the ends of the earth — and found I could buy French newspapers and magazines (it was the only modern language I could read) and newspapers from a hundred cities across the U.S. It was like Widener Library except that when you came back a few days later, it was all different.

When the huge renovation of the public transportation system took place in the 1980s, the old T station, through which you used to emerge into Harvard Square, became the new home of the newsstand.

The digital explosion has killed the business. Newspapers are shrinking in general as news moves online. But the market for foreign newspapers — days or weeks old by the time they have arrive — has all but disappeared.

I might have hoped the place could stay open selling mostly pornography, but that’s moved online too.

I should have seen it coming a few weeks ago when I bought a Christian Science Monitor there. It’s not a paper I usually purchased, but that day’s edition carried a column of mine. It was a newspaper without news, such a small tabloid that it was folded twice and still seemed thin. I felt sorry for it, as I would feel sorry for a victim of famine. And now the Christian Science Monitor is no more as a paper publication (it will continue on the Web).

No Out Of Town News? I should be happy for all the opportunities there will be in its place, but this one is hard to take.

Last night a team consisting of myself, Siva Vaidhyanathan (of UVa, author of Copyrights and Copyrwrongs and The Anarchist in the Library), and Randy Picker (of Chicago Law School) debated a team of Esther Dyson (author of Release 2.0), Jeff Jarvis (author of the forthcoming What Would Google Do?), and Jim Harper¬†(director of information policy studies at the Cato Institute). It was fun for everyone, I think. I could have argued either side, but I was recruited for the affirmative. I focused my argument strictly on Google cooperating with the Chinese government by producing a censored version of its search engine, which I rather too dramatically also referred to as an “instrument of thought control” and likened to a “brainwashing serum” that no responsible American pharma company would make for a foreign government. It was an Oxford-style debate; I took it as my job to sway the crowd and win the argument, without lying but perhaps by exaggerating if the other side would let me get away with it. I think several of the other participants took it rather more as an actual religious war.

In the pre-debate poll, the voting was very much against the motion; when the poll was repeated, it was a dead tie, 47%-47%, with 6% undecided. By the debate rules — winner whoever changes the most minds — our team won. Fitting, on the eve of the 40th anniversary of Harvard’s great comeback 29-29 win over Yale in football!

The debate is in the Intelligence Squared series. A bouquet to the sponsors and staff of the series; it’s a great thing to do. Last night’s will be up on Youtube by the end of the week and in an NPR one-hour edited version shortly thereafter.

There is a very positive review of Blown to Bits on the site of the Progress and Freedom Foundation (crossposted to the Technology Liberation Front).

One detail of which the reviewer was not aware — he wonders why the book is not available for download since we are so critical of copyright law, and the answer is that it will be, under a Creative Commons license, a year after its original publication date (that is, by mid-June 2009).

In a new low for abuse of copyright, Toyota has demanded that a site providing desktop backgrounds remove all images that contain a Toyota, Scion, or Lexus, even in a photography whose copyright is properly held by a third party. The site asked Toyota to identify which images in particular needed to be removed, and Toyota responded that if they had to go to the trouble of identifying what they were objecting to, they would have to be paid for their work.

What’s interesting about this case is what is being used is not the DMCA, but the threat of DMCA. To issue a DMCA takedown, Toyota would have to be specific. The company is apparently claiming that no one can use a photo in which one of their cars appears without infringing their copyright on the design of the car. Extraordinary (and stupid — don’t they want the free publicity of Toyota cars on desktops?).

Also, Professor Charles Nesson has been getting great publicity for his attempt to have the DMCA ruled unconstitutional, essentially because it is a criminal statute dressed up in civil garb. The penalties are extraordinarily high, and none of the protections available to criminal defendants are accorded to those the recording industry comes after. That is why so few cases make it to trial, and the industry can continue its attacks unabated by any risk of losing a case.

Anyone who wants to work in the new administration has to fill out a questionnaire with 63 extremely intrusive questions. Obama is doing everything he can to avoid surprises, like the Clinton nominees with their under-the-counter nanny payments. But many of the questions are questions only being asked because of the digital explosion and the resulting permanence of detailed information. Here are a couple of my favorite queries (emphasis mine):

Writings: Please list and, if readily available, provide a copy of each book, article, column or publication (including but not limited to any posts or comments on blogs or other websites) you have authored, individually or with others. Please list all aliases or “handles” you have used to communicate on the Internet.

Electronic communications: If you have ever sent an electronic communication, including but not limited to an email, text message or instant message, that could suggest a conflict of interest or be a possible source of embarrassment to you, your family, or the President-Elect if it were made public, please describe.

That is, “Of course, your potentially embarrassing private emails may not disqualify you, not at all. But please tell us about them. And thank you for these details! We always wondered who ‘hilarysux2008’ was, glad to know.”

NYT story here.

Seems to me there are three possibilities here. Either people are not going to work in the administration because of these disclosure requirements. Or the ones who do will be adventureless people who have never taken a risk or had much fun.

Or they will be liars.

Whatever it is, in 10 years, I’m betting, the balance will be struck in a different place.

Chris Soghoian has a fascinating article about filtering of search engine results in Argentina. This is different from what we write about that happens in China, where the lens is distorted. In Argentina, if you search for certain people using Yahoo!, you get back nothing at all. And it’s not because of official government policy; it’s because of private litigation. Someone simply goes to court and asks the judge to make them disappear, the judge enjoins the search engine company, and disappear they do. Google responds differently than Yahoo!, and there are many easy workarounds for those who experiment, but it seems to be a great leap forward in treating search engines just as a manipulable tool, not a public utility.

Blogging will be spotty this week as I am traveling. I’m giving two book talks en route, thanks to local Harvard Clubs — Wednesday in Greensboro, NC and Thursday in Chapel Hill.

Next Wednesday, November 19, I will be speaking at the Book House of Stuyvesant Plaza in Albany, NY — a public event organized by the Harvard Club of Eastern New York.