Most Internet Users May Be Violating Federal Law

Wired's Kim Zetter reports:

Orin Kerr, professor of law at George Washington University Law School, was a criminal trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice as well as a special assistant U.S. attorney for the Eastern District of Virginia.

But earlier this year when federal prosecutors in Los Angeles indicted a woman named Lori Drew with violating the Computer Fraud and Abuse Act -- an anti-hacking law -- for allegedly violating the MySpace terms of service in providing false information to set up the MySpace account used to harass the teen, Kerr didn't hide his disagreement with the charges.

Kerr wrote on the Volokh Conspiracy blog that the government was essentially charging Drew with criminal trespassing on MySpace's server for allegedly providing false information to open a MySpace account under the false identity of a nonexistent teenage boy. Kerr said this essentially made it a federal crime to violate any contractual agreement... Continue reading.

Though I don't think any of my active online accounts contain false information, I have created pseudonymous accounts in the past. Almost everyone probably has. And, given that neither I nor virtually anyone else actually read any of the terms of service agreements that we all theoretically agree to when we use almost any website, very few of us have any idea whether we're violating these supposed contracts. The notion that this behavior makes us all federal criminals is insane.

This just goes to show the enormous moral hazard of prosecutors looking for a way to punish people for bad behavior that turns out not to have fit well into the existing criminal code. The US Constitution is quite clear that people cannot be prosecuted for acts that were not illegal when they were committed. And the government's bizarre reading of the federal statute they're trying to use in this case would pretty obviously make that law unconstitutional under the doctrines of substantial overbreadth and vagueness.

So, yes, the woman in this case did a horrible thing. But she committed only a moral, not a legal wrong. Prosecuting her in this way is terribly dangerous. I have difficulty imagining that any conviction could possibly survive the appeals process. The government should give up now and stop wasting valuable resources.