May 16, 2008
Posted by Bill Herman
Will EFF Defend MySpace Bully Mom?
In a post on Threat Level discussing the scary legal precedent set by the Lori Drew prosecution, EFF civil liberties director Jennifer Granick says she would want to talk to Drew.
I doubt Granick supports Drew’s behavior, but the EFF is all about preserving our online freedoms, and the interpretations pushed by prosecutors to make their case are highly problematic. In a nutshell, here’s their argument:
1. It is against MySpace terms of service (ToS) to post false information, impersonate another person, or solicit personal information from a minor.
2. By breaching these ToS, Drew was engaged in unauthorized access to MySpace computers.
3. Unauthorized access to computers is a violation of federal law–the same law used against those who crack into companies’ servers to steal data, deface websites, etc.
Using the law in this way sets a terrible precedent. It would make me a felon every time I use BugMeNot.com to log into a mandatory-registration website with ToS demanding accurate information. From the post:
By way of example, Granick notes that some terms-of-use contracts prohibit users from making negative comments about the company. “If you write on a blog something disparaging about that company, are you in violation of criminal law?”
Other contracts have prohibited visitors to a website from linking to that site. …
[Andrea Matwyshyn, law professor at the University of Pennsylvania's Wharton Business School,] says she understands the impulse, but is concerned that if successfully prosecuted the case could set a bad precedent for turning breach-of-contract civil cases into criminal ones.
“Terms of use have been progressively getting more Draconian and restrictive,” she notes. “So as these provisions get drafted and users agree to them, we may find ourselves in a situation where a company that drafts one may try to leverage this kind of case law to take a breach-of-contract action and turn it into a computer-intrusion [case].”
The EFF has hardly made a commitment to defend Drew, but Granick definitely left the door open.
When asked if this is the kind of case Granick would want to litigate, she said, “If [Drew] calls me I’d be very interested in talking with her about this case. I think there is such an extreme reading here, and I do think it’s dangerously flawed for other cases. I think it’s scary and it’s wrong and something should be done about it.”
If I were Drew, I’d call right now. With a lynch mob federal prosecutor at her door, she needs all the friends she can get.
(For the record, we at ShoutingLoudly do not support adults engaging in psychologically devious online behavior with minor children. Anger at this behavior and sympathy for the victim’s family, however, need not be coextensive with willingness to disregard the dangers of bad case law.)
1 Comments
May 16, 2008
ToS is not a contract. Agreement to ToS cannot be inferred from use of service.
ToS merely informs the user as to the circumstances under which the provider reserves the right to terminate the service – signified by explicitly and directly informing the user and denying their further use of the service (in so far as the service provider is able).
If the service has not been so terminated, then the user remains a legitimate user of the service.
A more appropriate offence would be ‘Conspiracy or malicious behaviour liable to induce self-harm, suicide or suicidal tendencies’.
It is irrelevant whether this is achieved via real or virtual identities.
It would be comparable to inciting violence or racial hatred say. But in this case, it’s like inciting self-violence or self-hatred.
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