Re: Editors note incl. Dangerous Precedence Set - Federal Criminal Charges for Violation of Commercial Online ToS?

[David Farber <dave () farber net>]

Begin forwarded message:

From: Lauren Weinstein <lauren () vortex com>
Date: November 29, 2008 12:08:28 PM EST
To: dave () farber net
Cc: lauren () vortex com
Subject: Re: [IP] Re: Editors note incl. Dangerous Precedence Set -  
Federal Criminal Charges for Violation of Commercial Online ToS?


It's so nice to have brilliant legal minds like Brett's available --
presumably based on many years of courtroom experience -- to firmly
interpret vaguely written statutes like 18 USC 1030 -- the sort of
law that is particularly vulnerable to selective enforcement abuse,
especially since monetary loss (a key aspect of the statute) is a
can of worms to honestly determine for services that don't charge
users for access.

No surprise, Brett is muddying the situation more than clarifying it.

In fact, another key aspect of 18 USC 1030 is supposed to be
intent.  Even in the case of the suicide under discussion -- which
itself was supposedly not on trial in the case -- there was
apparently no showing that serious bodily injury or death was
*actually intended*.

By Brett's logic -- which he endorses as "a very good thing,"
perhaps disrupting computers in a manner that causes harm even when
that disruption was itself not the intended effect would be a
crime.  But what might this include?

P2P is his favorite whipping boy, and he constantly decries the use
of the Internet for sending video -- seemingly unable to accept the
fact that we're moving rapidly from a "everybody watches the same
thing at the same time" to a "watch what you want, when you want"
modality.

But what else could get sucked into this?

How about Slashdot, for example?

A few days ago, I wrote a piece discussing how to send secret
messages through Google SearchWiki
( http://lauren.vortex.com/archive/000476.html ).  The item got picked
up by Slashdot.  The secret message example search string that I
included in my original entry was tried by so many people over a
relatively short period of time, that it pushed this seemingly
random set of three words up to #1 in Google's "Hot Trends" for a
while.  I heard reports of clogged systems from various locales.

Should Slashdot's operators be charged with a crime for
intentionally posting an item that happened to cause this
disruption?  How about me for writing the original item?  Perhaps
Dave's a criminal if sending out *this* message in IP causes another
burst of similar activity?  As Alice would say in Wonderland,
"Stuff and nonsense!"

In the suicide case, it's very clear what was going on.  The original
jurisdiction chose not to prosecute, since no appropriate
"cyberbullying" statute was on the books.  This is additionally
demonstrated by the fact that I believe they have now enacted a
specific statute to address such behavior.

But given the understandable sense that a wrong had been committed,
and public outrage must be calmed, the authorities came up with the
utterly inappropriate computer fraud approach, and to make matters
even worse -- and arguably this is the most dangerous part in terms
of precedent -- brought the case here to the L.A. area since that's
where MySpace's offices are located.  News stories said that their
servers are here -- but I would assume that they have servers
scattered in various places.  By the way, why does MySpace feel it
necessary to have a private (hidden) domain registration?  Very
unusual for a significant corporate entity, to say the least.

This case is an example of tortuous prosecutorial reasoning, that
even the jury refused to buy into at the felony level.  The judge
hasn't made his final ruling on dismissal yet, and it seems likely
that appeals courts will be involved.

As much as everyone is saddened by an innocent girl's death, that
doesn't change the fact that this particular prosecution and its
implications for Internet-related law and even for average Internet
users are extremely alarming.

--Lauren--
Lauren Weinstein
lauren () vortex com or lauren () pfir org
Tel: +1 (818) 225-2800
http://www.pfir.org/lauren
Co-Founder, PFIR
  - People For Internet Responsibility - http://www.pfir.org
Co-Founder, NNSquad
  - Network Neutrality Squad - http://www.nnsquad.org
Founder, PRIVACY Forum - http://www.vortex.com
Member, ACM Committee on Computers and Public Policy
Lauren's Blog: http://lauren.vortex.com


- - -


> I held this note for a while while I let my temper cool a bit.
> According to Brett the use of P2P  may be a law violation not just a
> isp s. Many sites are now doing updates using p2p in a non obvious
> fashion. Will my ISp claim I interfered with a VOIP call (voip is a
> lousy reliable channel since my ISP does not quote any reliability
> numbers) end me in jail? and just what is a P2P usage?? .
>
>
> Still steaming
>
> Dave
>
>
>
> Begin forwarded message:
>
> From: Brett Glass <brett () lariat net>
> Date: November 27, 2008 4:08:57 PM EST
> To: dave () farber net, "ip" <ip () v2 listbox com>
> Subject: Re: [IP] Dangerous Precedence Set - Federal Criminal Charges
> for Violation of Commercial Online ToS?
>
>
> > A very dangerous legal precedence was set today.
> >
> > In the case of the 13 year old who committed suicide supposedly  
> > over a
> > MySpace hoax, the mother involved was found guilty on three federal
> > counts.
> > What of? Not of a serious criminal act.
> >
> > She was found guilty on three criminal counts (misdemeanors), in a
> > federal court, of violating the Terms of Service agreement.
>
> This is not new. In fact, the splash pages for the hotspots operated  
> by
> our ISP for retail establishments and hospitality venues have
> mentioned it
> for many years. "Exceeding authorized access" to a computer network   
> and
> causing damage to anyone or anything -- including injury or a  
> nontrivial
> financial loss -- is a per se violation of 18 USC 1030. See
>
> http://www.law.cornell.edu/uscode/18/1030.html
>
> for the details.
>
> This is, in fact, a very good thing. Now that disrupting a computer
> network
> can easily endanger life and limb (e.g. when someone needs to make a
> VoIP
> call in an emergency), it's important that an ISP be able to prevent,
> say,
> someone who is using P2P from disrupting the operation of the network,
> preventing that call from going through by creating excessive jitter  
> or
> hogging bandwidth. The statute is fair in that the person can't be
> charged for causing a "de minimus" loss or injury. Someone actually
> has to
> be substantially harmed, and in this case of fatal online bullying  
> that
> threshold was certainly exceeded.
>
> --Brett Glass
>
>
>
>
>
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