We Don't Need No Stinking Laws

Who needs laws when you have emotions?

At first such a question might seem ludicrous, but time after time we see this question asked by millions of Americans, even if it’s not asked explicitly.

Just recently it was asked by many in the wake of the Lori Drew trial, in which Drew—who was found guilty of misdemeanor unauthorized access charges under the Computer Fraud and Abuse Act for signing up for a MySpace profile using an alias—helped to bring together the legal and technology communities as well as bring out the “somebody’s-gotta-pay” segment of American society in full force.

Drew’s act—creating a bogus MySpace profile and then bullying a 13-year-old girl to the point of suicide—was completely heinous, but didn’t actually violate any known crime. That is, until a lawyer named Thomas O’Brien had a creative approach to applying a computer hacking law that would go after Drew for something, no matter what it might be.

Ars Technica’s Julian Sanchez writes:

O’Brien had a legal theory as unorthodox as his assertion of authority. MySpace may be full of bogus or pseudonymous profiles, but the site’s terms of service technically require all users to provide “truthful and accurate” registration information. Since use of the site is conditional on acceptance of those terms, prosecutors argued, use in violation of those terms constituted “unauthorized access” to MySpace’s computers. And “unauthorized access” violated a provision of the federal Computer Fraud and Abuse Act intended to apply to computer hackers.

“Unauthorized access” is a mere misdemeanor—and that’s all the jury was willing to find Drew guilty of. But the charge can be elevated to a felony if that access is “in furtherance” of some other illicit act, whether a crime or a civil tort. So, for instance, upload a few minutes of copyrighted video to YouTube, and you’ve violated the site’s terms of service while simultaneously committing copyright infringement. Congratulations, you’re a felon!

The law, however, matters little when there’s revenge to be sought. The evidence lies in comments left on many Websites that have covered this story. When the story was published on the Website of my local newspaper, one reader left a comment demanding that Drew be charged with first-degree murder. Was it first-degree murder? Absolutely not, but emotions trump the law for many Americans.

Even the comment thread for this Ars Technica story has a few remarks that are just as scary as knowing that people like Lori Drew are out there. One comment states:

This woman should have been locked up.

Having been on the receiving end of an online relationship gone horribly wrong in my past when I was young and naive (I still have the scars to prove it) I think it's unbelievable she got off so lightly.

It’s just another case of people behaving so irresponsibly that the issue has to be legislated, versus individuals showing the good judgement [sic] that is expected of them.

Notice that this comment avoids the actual legal issue completely. Why bother? Emotions win out here.

Another point that has been brought up several times in this case is the aspect of terms-of-service (TOS), which, in this case, were violated because Lori Drew signed up for a MySpace profile using an alias. While the legal aspect was a violation of the Computer Fraud and Abuse Act, quite a few people are quick to suggest that TOS is—or should be—akin to the law itself.

Terms-of-service sound great, but let’s consider two things: (1.) They can be whatever the site manager(s) want(s) them to be, and (2.) do you really want each Website owner/creator to be given the power to simply create laws by writing a TOS agreement?

Think about it: if I come up with a wacky TOS agreement, and you don’t follow it, should you be charged with a crime simply for not following the rule? If I demand in my TOS agreement that you must wear a clown suit and pick your nose while reading this blog, should I have the legal power to enforce that? Should a company be able to enforce it? Should a company be able to enforce it and change the TOS agreement whenever they feel like it?

One other thing that the emotion-driven folks didn’t think about when they quickly demanded that using aliases be prosecuted to the fullest extent: How much speech would be silenced online if we demand that all comments on all Websites be accompanied by full (real) names, addresses, phone numbers, or anything else that will help us to make everything as accurate as possible?

Will you honestly leave a negative comment about something if you know that supporters of the topic could easily catch up to you and find you? Will you be as willing to leave a negative politically-oriented comment if you have to leave your full name with it, or otherwise face criminal prosecution?

Will you be so quick to yell “Hang ‘em high!” then?

Reference

Sanchez, Julian. “Does the Drew Verdict Make ToS Breakers Potential Felons?” Ars Technica. 1 Dec. 2008.

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