December 2nd, 2008
Does Drew decision criminalize TOS violations?
I suggested that prosecutors and the Meiers think about a deal with Drew in which she waives her right to appeal. Many people wrote in to say no, along these lines:
Drew bullied and by the end of the day a 13 year old girl is dead. The girl did not want to be abused, but Drew had the desire to abuse and take her own ugliness and that of her daughter out on an easy victim and had more than enough experience at it, so she did. …. She should be locked up and get to pay for at the very least $300000 worth of therapy for herself and her daughter.
Others vociferously argued that the prosecution of Drew on a law clearly designed for hackers was a travesty. Many commentators agree, arguing that if the decision is upheld it basically exposes every Internet user to criminal prosecution for violating some obscure item in a click-through license.
One of the more hysterical reactions comes from GrokLaw: “I don’t think it’s overstating it a bit to say that unless this case is overturned, it is time to get off the internet completely, because it will have become too risky to use a computer.”
I think that is overstating it, because it’s not the mere violation of a terms of service agreement that would expose one to criminal prosecution, but causing harm. Indeed, what some people fear is nothing less than that contracts will be enforced at the point of a gun held by the government. That’s clearly not the law and it’s not every going to be the law and it’s not the law of this case.
But it’s also clear that Congress intended this law to penalize hacking, data stealing, and damaging computers and networks, not to stop cyberbullying. Wired quotes Eugene Volokh:
“It’s strikingly broad and can’t possibly be what Congress intended with the statute and what the statute is properly interpreted as meaning,” he told Threat Level. “To say that whenever you breach the contract you therefore become an unauthorized user of the system and are therefore a felon, that can’t possibly be right. I think the court of appeals will correctly conclude that the government’s theory is legally unsound, and the statute ought not to be interpreted this way.”
But I don’t think the verdict is quite that broad. It may indeed be constitutional. I am concerned about the ramifications but I think people are making quite a few leaps here. Frankly, the Meiers’ better remedy is to sue Drew for her tortious acts – those are quite clear. In any case, we shall see what the district court thinks – and ultimately what the Court of Appeals says.
