Back in May I blogged about the prosecution of Lori Drew by the U.S. Attorney's Office in Los Angeles based on Drew's cruel MySpace-based hoax that led to the tragic suicide of Megan Meier. I think that prosecution presents a dangerous expansion of federal criminal law by giving prosecutors discretion to criminalize violation of the terms of service of private sites.
The Electronic Frontier Foundation agrees and has filed an amicus brief in the case. They do a better job than I did of explaining the perils. Thanks to Talking Out of Turn for the link and for pointing out this aspect of the EFF's argument:
For example, this interpretation of the law would attach criminal penalties to anyone under the age of 18 who uses the Google search engine, because Google's terms of service specify all users must be of legal age to enter into a contract.
The counterargument will be that the government will exercise discretion and only criminalize TOS violations when the defendant has done something truly vile that society should punish (Drew's conduct is unquestionably vile). Your reaction to that argument may well depend on how you feel about government. Or it may depend on your experiences with the criminal justice system. Though I worked in the office prosecuting this case and have a great deal of respect for its line prosecutors, I don't trust the current U.S. Attorney one bit.
Last 5 posts by Ken White
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