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Check out my review in the current issue of American Scientist of Jonathan Zittrain’s The Future of the Internet – and How to Stop It, online at http://www.americanscientist.org/bookshelf/pub/keeping-the-net-stupid.

And read Zittrain’s book.,

In Blown to Bits we discuss not just the case of Lori Drew, but the case of Jeffrey Berman, who allegedly groped a girl on public transportation near Boston. Another teenager snapped his picture with a cell phone, it was on the evening news, and he was arrested the next day. I used this case as an example of the good side of digital little-brotherism.

Berman has now copped a plea to keep out of jail, if he behaves himself. (Three years, if he doesn’t.) The Boston Herald reports this story under the wonderful headline, Girl’s pluck, pic put pusillanimous perv in his place.

I have a weird relationship to this case. Ever wonder what happened to that red-headed kid you were in Mrs. Dowd’s kindergarten class with? In my case, he turned into the groper on the T. I hadn’t seen or heard of him in at least 50 years, until I read the original Herald story about the incident and noticed that the Jeffrey Berman who was arrested was exactly my age ‚Ķ. Sounds like a pretty sad situation, and I’m glad he was apprehended.

The debate in which I participated (and won!) affirming that “Google Violates Its ‘Don’t Be Evil’ Motto” has been edited down to an hour for radio broadcast. It is available on the NPR web site.

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’s highly aggressive, if not unlawful, legal theory, it is now a crime to ‘obtain information’ 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. ‚Ķ 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.

Use of the term “Broadband” is unregulated in the US, but more and more people know they want it. Those conditions are ideal for shading the truth.

A new report in Great Britain states that more than 40% of “broadband” connections there are less than 2MB/sec. I’m not aware that any similar figures are available in the US, but I know some services offered as “broadband” are less than 1MB/sec. That’s still a lot better than dialup, which is limited to .06 MB/sec., but nowhere near the rates of at least 4MB/sec that make web surfing pleasant.

Another thing to realize is that ISPs split the channel capacity into upload and download speeds, generally allocating much more for download on the theory you shouldn’t be uploading movies (and they don’t care if you actually make your own). So they will give you two different numbers for the two directions — but it’s hard to be sure you can believe them anyway.

A few weeks ago we noted a case in England where data giving access to the records of 25 million Britons was found on a flash drive that some clown dropped in the parking lot of a pub.

Now the AP is reporting that the Pentagon is banning all flash drives, and is collecting the drives that are in the hands of Pentagon workers, with no assurance they will ever be returned. The goal is apparently not to prevent data from leaking out, but to prevent viruses from being imported on infected drives that people plug into the USB port of their desktop machines.

There’s a generally favorable review by Dan Clapper in the Asheville (NC) Citizen-TImes. (Or at least on the web site. You can never tell these days what’s actually printed on paper!)

Last week’s Intelligence Squared debate (about which I blogged earlier) is now up for viewing on YouTube, in 13 parts. You can find them by searching for “intelligence squared google”. My initial presentation is #4, and I respond to a question from Larry Lessig in #8.

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.

:

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.