Wednesday, November 26, 2008

MySpace Ruling: Intentional Violation of a Website's Terms of Service is a Federal Crime

One of the many perversities to arise from today's misdemeanour conviction of Lori Drew in the so-called "My Space Suicide Trial" is summed up by Orin Kerr at Volokh:

The government's theory in the Lori Drew case is that it is a federal crime to intentionally violate the Terms of Service on a website, and that it becomes a more serious crime — a felony rather than a misdemeanor — if the Terms of Service are violated to further a criminal or tortious act. The tortious act the government alleged is intentional infliction of emotional distress, which in this case was alleged to have led to Meier's suicide.

The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website, and that Drew directly or indirectly did so, but it acquitted Drew of having violated Terms of Service in furtherance of the tortious act. That is, the jury ruled that Drew is guilty of relatively lower-level crimes for violating MySpacs Terms of Service (for being involved in the setting up of a fake MySpace account). It acquitted Drew for any role in inflicting distress on Meier or for anything related to Meier's suicide... (emphashis added)

A federal crime to violate the Terms of Service of a private website?

If this surprising ruling stands (it will be appealed, of course), each website's Terms of Service will effectively be elevated to a status of virtual equivalency with Criminal Code legislation.

Thus, noms de plume online may hereinafter land you in the slammer if used on websites such as MySpace that publish service terms requiring that an actual name be provided.

By extension, how about time behind bars for those who "finesse" their ages or weight on online dating sites?

Talk about slippery slopes. also pipes in on the decision:

Drew was not directly charged with causing Megan's death. Instead, prosecutors indicted her under the federal Computer Fraud and Abuse Act, which in the past has been used in hacking and trademark theft cases.

Among other things, Drew was charged with conspiring to violate the fine print in MySpace's terms-of-service agreement, which prohibits the use of phony names and harassment of other MySpace members.

"This was a very aggressive, if not misguided, theory," said Matt Levine, a New York-based defense attorney and former federal prosecutor. "Unfortunately, there's not a law that covers every bad thing in the world. It's a bad idea to use laws that have very different purpose."

- Garry J. Wise, Toronto

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