Fraud and Abuse – by whom?

The possible (mis)use of US federal law designed to deal with hacking for the purpose of the (admittedly tragic) Megan Meier/Lori Drew case is scary. In short, after a high-profile situation where a young person committed suicide after what appears to be a pattern of harassment conducted via MySpace, it emerged that the mother of a ‘friend’ of the deceased had written many of the messages. Charges didn’t follow in the first instance (state law), but after some time, charges were brought under federal law, including the Computer Fraud and Abuse Act (CFAA) as amended, which in effect makes it illegal to access any computer ‘without authorization’; the logic goes that because MySpace requires you to give correct information and not be abusive, not following the conditions means that you aren’t authorised.

The idea that violation of the terms of use of a website is in itself a crime raises all sorts of possibilities that are almost too far-reaching to speculate about without seeming a little unhinged! It’s similar to, yet even more threatening than, the development of knee-jerk “criminal trespass” laws that blur the line between conduct in public places and private places and have been used against peaceful protesters with abandon. I find some tragic humour in the fact that private censorship by hosts, no matter how irrational, is seemingly beyond the scope of the courts (being a private matter supposedly for contract alone) yet when you ‘break’ that ‘contract’, it’s such an offence against the public that the criminal law should be involved. (Never mind the fact that a lot of those now criminal-law-carrying terms are beyond boilerplate!)

We’ve talked about the weasel words (or misuse of words!) of authorised computer access on these pages before – in the context of wifi sharing. I have a bad feeling about all of this.

More from Eric Goldman, Susan Crawford, Wired and Peter Black.

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