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

[David Farber <dave () farber net>]

Begin forwarded message:

From: Thomas Lord <lord () emf net>
Date: December 1, 2008 12:41:29 PM EST
To: dave () farber net, dave () wilson net
Cc: ip <ip () v2 listbox com>
Subject: Re: [IP] Re:    Editors note incl. Dangerous Precedents Set -  
Federal Criminal Charges for Violation of Commercial Online ToS?



> From: "Dave Wilson" <dave () wilson net>
> Date: December 1, 2008 5:24:25 AM EST

> Very nice analysis of the decision on Groklaw;



This reminds me of the same way patent law got
so much paranoid hype around it.  As near as
I can tell, Bilski didn't reverse a darn thing
except for public perception after the implications
of State Street were widely misreported.
But, to the case at hand:


People are reacting as though suddenly
a ToS is an extension of criminal law.
For example, if a newspaper requires
"free registration" to view archives and
a person whimsically supplies the name
"J. Q. Average", and that is not the real name,
and the ToS says "you must supply your real
name" -- suddenly that would be criminal.

But the indictment in U.S. v. Lori Drew
does not argue so.  They argued, on the
three counts for which she was found guilty,
thus:

Person or persons committed the common
law tort of intentional emotional distress
upon Ms. Meier.  The tests here are that
the on-line harassment showed reckless
disregard for the possibility of creating
such distress, the acts were systematic,
and severe distress resulted.

The acts were furthered by Ms. Drew
obtaining and causing to be obtained
information about Ms. Meier via acts which
MySpace explicitly does not authorize and
which MySpace is even commonly known to not
authorize.   This access involved interstate
communication.

That seems open and shut.  It clearly
satisfies the plain language of 18 USC 1030(a)(2)(C)

Some people have said that if that's the case,
then Ms. Meier herself, by registering for MySpace
at age 13, also violated the same statute.

That's false, though.  Ms. Meier did not commit any
tortious act.   18 USC 1030 explicitly does NOT
criminalize unauthorized access if the sole
outcome is the mere use of the computer system and
the value of that use does not exceed $50,000.

Similarly, giving a pseudonym to a "free registration"
site would not rise to the level of a crime under
18 USC 1030.

I fail to see how the sky is falling or why it
would be important to reverse this verdict or
dismiss the case.   The only precedent here is
that if you directly contribute to committing
certain serious crimes and do so by obtaining information
or causing information to be obtained via
blatantly violating extremely unsurprising elements
of a ToS for a service provided from a different
state then you're guilty of this charge (18 USC 1030(a)(2)(C)).

In fact, this conviction seems like a pretty *good*
application of the law in this sense:

Nobody has been found criminally guilty of intentionally
inflicting emotional distress on Ms. Meier and likely
nobody will be.   The evidence leaves reasonable doubt
for each potential defendant to repudiate the acts
in question even though there is no doubt that the
acts took place and that some or all of the potential
defendant's are guilty.

It's a case of three shots ringing out from a dark
alley from which three suspects emerge
but none of them are talking and the sole gun used
was cleaned of prints.

We can't convict any of the suspects of pulling
the trigger but suppose that we can prove that suspect
A purchased the gun, giving fraudulent information
for a background check, and in order that it be available
for the crime.    Is there then something wrong with
convicting suspect (A) for charges arising from the
fraudulent purchase of a gun for use in a criminal
activity?

The charge for which Drew was acquitted required that
she be found to have participated in a conspiracy.
The jury could not find so.  By analogy to our
suspects emerging from the dark alley:

Suspect (A), we know, bought the gun for the crime
but it is equally possible, on just the evidence,
that (A) acted alone in the crime or that (A) conspired
with (B) and/or (C).   So we don't know for sure that a
conspiracy took place although, if one did, then (A) would
be a guilty conspirator.

Similarly, Drew couldn't be convicted on the harsher
charge for an ironic reason:  there is reasonable doubt
she conspired because she *might* have been solely responsible.

If provably solely responsible, perhaps she even could have been
convicted of manslaughter.   In that sense we could say
she appears, based on the jury's findings here, to have committed
either or both conspiracy or manslaughter, but because we
can't be certain which is the case she can't be convicted
on either charge.

But we do know that she fraudulently obtained or caused
to be obtained the weapon....


-t







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