Surveillance State

The MySpace suicide case concluded last week, with the jury finding Lori Drew guilty of three misdemeanor counts of gaining unauthorized access to the popular social-networking site.

While most of the press attention has been focused on the specifics of the case, the more important issue is the potential impact this could have on the Internet in general.

Web site terms of service, which end users universally ignore, suddenly have teeth: violating them is a federal hacking offense, punishable with jail time. The days of being able to freely lie on the Web could be coming to an end. This could mean serious trouble for people who lie about their age, weight, or marital status in their online dating profiles.

Bad cases and bad laws
The specifics of the Lori Drew case are messy and emotional. The important fact is that there is no federal cyberbullying statute, so the U.S. attorney in Los Angeles turned to a novel interpretation of existing computer hacking laws to try to punish the woman. The general idea is that in creating terms of service, a Web site owner specifies the rules of admission to the site. If someone violates any of those contractual terms, the "access" to the Web site is done without authorization, and is thus hacking.

Unfortunately for Internet users everywhere, a jury bought the theory last week and found Lori Drew guilty of three misdemeanor violations of the Computer Fraud and Abuse Act, punishable with up to one year in a federal prison and a $100,000 fine for each of the three counts.

Horrible terms of service
Until the Drew case is overturned, terms of service would appear to have the power of federal hacking laws to back them up, at least in cases where an ambitious federal prosecutor is interested in making a name for himself.

Back in March, I wrote about Google's insane terms of service--which forbid the use of the site's search engine, free e-mail service, or any of its other offerings by people under the age of 18. The site's terms state:

"You may not use...Google's products, software, services and Web sites...and may not accept the Terms if...you are not of legal age to form a binding contract with Google.

Under the Department of Justice's current interpretation of hacking laws, every high schooler who uses Google to do homework is in theory a criminal.

However, it gets even better than that. As the Electronic Frontier Foundation noted in its amicus brief to the court, the dating site Match.com prohibits married persons from using the Web site to cheat on their spouses:

"You must be at least eighteen (18) years of age and single or separated from your spouse to register as a member of Match.com or use the Website."

Dating site eHarmony takes this even further, forbidding its users from lying in their online profiles:

"You will not provide inaccurate, misleading or false information to eHarmony or to any other user. If information provided to eHarmony or another user subsequently becomes inaccurate, misleading or false, you will promptly notify eHarmony of such change.

All those people who have lied about their age or weight in an eHarmony profile would now appear to be computer hackers. Oh, and if you gain 30 pounds after posting your profile and don't promptly update your profile--yep, jail for you.

Silver lining...a weapon against RIAA
Back in the early days of the Digital Millennium Copyright Act, activists discussed the creative use of terms of service to keep agents of the RIAA and MPAA from visiting their sites, and collecting evidence for later trials. In a few minutes of searching, I was able to find at least one Web site whose terms of service still forbid such activity.

Notice to RIAA & MPAA and affiliated contractors: Pursuant to DMCA statutes, you are forbidden from accessing or reproducing any content on this site, due to a violation of our terms of service. This is not a matter for discussion. You must exit this Website now.

These amateur click-wrap agreements didn't seem to hold much weight back then. Could the precedent set by the Lori Drew case provide ammunition to pirates, activists, and the thousands of other Internet users who have an anti-RIAA ax to grind?

Parry Aftab, a lawyer and executive director of an anti-cyberbullying group hailed the court case as a victory, telling the Associated Press that the "verdict has made it very clear if you use the Internet as a weapon to hurt others, especially young, vulnerable teens, you're going to have to answer to a jury. This is not acceptable."

For those of us who see the over 30,000 lawsuits filed by the RIAA as an abuse of the legal system and an organized shakedown of vulnerable high school and college students who know little about the law, perhaps this warning will hold true.