Do You Accept the Terms?

You know those "Terms of Service" agreements that are ubiquitous in the computer world? You've clicked through them a hundred times installing software or registering for a web forum. Do you ever take the time to read them? Yeah, I didn't think so. Me either. You might want to start, tho', lest the weight of the federal government come crashing down upon you.

Folks are no doubt familiar with the case of Megan Meier. If not, here's the short version:

Megan was an awkward 13-year-old girl with a MySpace page. Via MySpace, she struck up a friendship/love interest in "Josh," a 16-year-old boy. After lots of communication, Josh turned on Megan, sending all kinds of vicious messages. The last one, essentially, told Megan that the world would be better off if she was dead. She took Josh's criticism to heart and killed herself shortly thereafter.

As tragic as that would be, there was an even more sinister story lurking behind the facts. "Josh," was not, in fact, a 16-year-old boy. He was a fake MySpace identity created by Lori Drew, a mother who lived down the street from Megan. She was motivated to do what she did, allegedly, to gain information about nasty things that were being said about her daughter online. By all accounts, Drew is a horrible human being who has done some evil shit.

But does that make it criminal? Authorities in Missouri, where Meier and Drew lived, eventually concluded it was not. But prosecutors in the US Attorney's Office in Los Angeles (where MySpace's servers are located) concluded otherwise. They've charged Drew with 18 USC 1030, the Computer Fraud and Abuse Act. As Orin Kerr explains:

To understand this case, you need to understand the government's theory. The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS).

Here's the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn't comply with these terms, the theory goes, so she was criminally trespassing onto MySpace's computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).

Orin goes on to explain the vary serious problems with this theory. He's not the only one who is troubled (via TalkLeft).

Two thoughts.

First, if the Government's theory gets approval from a judge and jury, it will instantly make millions of computer users criminals, as we've no doubt all violated some minor TOS that we glossed over by checking a box. Needless to say, that's a bad thing. It would be a livable consequence if the Government's theory wasn't such a stretch and seemed to be merely a prosecutor seeking to cash in on popular outrage.

Second, bad cases, as they say, make bad law. What is criminal is not necessarily evil, and what is evil is not necessarily criminal. Is has always been so. We, as a society, need to realize the potentially negative consequences of trying to burn the latest heretic at the stake in a blaze of outrage. We might be next.