Tobold's Blog
Thursday, November 27, 2008
 
You can go to jail for lying on the internet

Via Kill Ten Rats I got the news that Lori Drew has been convicted of violating the Terms of Service, by setting up a fake MySpace account. She has not been convicted for driving a girl to suicide, which is probably a good thing, because you don't want to find yourself in the situation where you e.g. dump your girlfriend, she commits suicide, and you end up in jail. So the court decided that the only thing illegal going on was lying on the internet about your identity, and breaking the Terms of Service.

Hmmm, I better head for the hills. I must admit that the name in my passport is *not* Tobold, thus I'm apparently committing a federal crime right now. My only chance is that the US will run out of prison space rather quickly if they enforce this. Because not only lying on the internet is a federal crime according to this, but any violation of a Terms of Service. If you named your World of Warcraft character "Ipwnyou", spam in trade chat, or use any vulgar language for example, you are breaking the Terms of Service of WoW, and are thus by this ruling committing a federal crime. Is that a knock at your door? Must be the FBI! But if you're lucky they'll start with MySpace first, and jail the 100 million users that weren't entirely truthful in their profile there first.

Fact is that Lori Drew played a rather evil prank on a teenage friend of her daughter, with tragic consequences. It is understandable that many people have a gut feeling that she should somehow be punished for that. But there is no law against what she did. And the district attorney, jury, and judge bending a completely unrelated law into shape just to punish that women, without thinking of the consequences, is reckless and stupid.
Comments:
I hardly think the Lori Drew episode is comparable to using a handle on the internet. Or breaking up with your girlfriend and having her off herself. Normally you do pretty solid analysis Tobold, but this article is ridiculously glib. Do some research and see how Lori Drew went way beyond simply using a fake name.
 
I hate to say it but commenter #1 is correct... this is a whole different issue from you breaking up with your girlfriend (who I assume is an adult).

Drew basically cyber-stalked the girl. She knew her personally and set out to torment, humiliate and hurt her. If the activity had taken place over the phone, or via U.S. mail, or even via a guy she hired to "play the role" of the boy who supposedly liked the girl, then would you be defending her behavior? No, you would not, and it would have been easier to convict her, too.

Drew used the power of the internet to harass and exploit not just another person, but a child. We have plenty of laws that protect children from exploitation by adults in cyberspace, but sadly we don't yet have adequate laws about this kind of online stalking of children.

So yeah, she deserves to be convicted of whatever crime that the legal system can support.
 
Be afraid! we know your villianous aliases...
 
Do some research and see how Lori Drew went way beyond simply using a fake name.

I did much more than that research. And I would suggest you do the same. The research said that what Lori Drew did was certainly morally reprehensible, but that there is no law against that. I'm certainly not defending the woman, but making up laws or corrupting other laws to fit the case is battling one evil with an even greater evil. If you do something legal, you must be able to rely on not going to jail for that, even if your action is repugnant to others. If we start to make up laws on the go, based on gut feeling, we are moving away from law and order, not towards it.
 
This is a weird and very messed up case. She wasn't convicted of harassment, or intentionally driving someone who was already nuts over the edge. What she was convicted of was "intentionally" breaking the TOS of MySpace. If a TOS is a legal document that is agreed upon between the company and the user much the same way as a paper contract is then this is a completely valid ruling and one that is good for eCommerce. Just because she hadn't read the TOS doesn't mean she can't be found guilty of breaking it. I think the question should boil down to how valid is a "I agree" checkbox with a submit button compared to a signature on the paper contract. Perception is different, and most people perceive the internet submit button to be meaningless, this ruling means it is now a legally binding contract between you and the provider.
 
Ok, maybe this is my own morality taking over but shouldn't trying to get someone to commit suicide be a crime? Drew was egging the victim on to commit suicide, was she not?
 
"I did much more than that research. And I would suggest you do the same. The research said that what Lori Drew did was certainly morally reprehensible, but that there is no law against that. I'm certainly not defending the woman, but making up laws or corrupting other laws to fit the case is battling one evil with an even greater evil. If you do something legal, you must be able to rely on not going to jail for that, even if your action is repugnant to others. If we start to make up laws on the go, based on gut feeling, we are moving away from law and order, not towards it."

Where do laws come from in the first place? Somebody does something that society thinks is wrong and then the government enacts laws.
 
Drew was egging the victim on to commit suicide, was she not?

Not exactly. One of the several persons involved wrote the victim "the world would be better off without you" from the fake boy's account. The defense was able to prove that it wasn't Drew, but one of her co-conspirators. And, under the current law, telling somebody the world would be better off without him is *not* illegal. I'm pretty sure thousands of people use that expression every day. Do you want to put them all into jail? There are very solid legal reasons for why "causing someone to commit suicide" is *not* a criminal offense.

In my opinion Drew and the others should be condemned for "intentionally causing emotional distress". That would be a civil suit, but one easily won. Putting her into jail for a Terms of Service violation is just a crutch, and a bad one. It's even worse than jailing Al Capone for not paying his income tax.
 
Where do laws come from in the first place? Somebody does something that society thinks is wrong and then the government enacts laws.

Yes, in that order, and those laws aren't valid retroactively. The whole notion of "fair trial" goes out of the window if somebody does something legal, and is then jailed because the law is changed after his deed to make it illegal.
 
The circumstances are prejudicial: the only relevant factor in what she was convicted of is whether she intentionally violated the Terms of Service. Done. If that counts as federal hacking charges, so does every other such violation. And doing so to further a tortious act is a federal felony. Intentional infliction of emotional distress is a tort, and harassment is almost always a ToS violation, so trolling and harassment are federal felonies under the prosecution's theory. Also note that most ToSs say that the site/game operator can define harassment at will, so if you support the prosecution's case, you support the ability of every game and web site operator to turn people into federal felons.

But hey, it's fine because we can undermine the rule of law and only apply it when the defendant did something else that we disapprove of, right? Odds are against your being the victim of malicious prosecution. It's not like the federal government uses laws targeted at drug dealers to prosecute doctors who prescribe painkillers for the terminally ill or to imprison people following their state's medical marijuana laws. Wait, no, crap. Well, at least the last two American administrations have not misused FBI files or engaged in wiretapping of American citizens. No? Dang, this internet sarcasm is getting hard.

Jailing Al Capone for income tax evasion is fine: he actually evaded income taxes. It would have been nice to get him for something else, but at least they got him for something that was illegal. If you want to stretch federal hacking laws to cover "I lied on my MySpace profile," you no longer really have laws.

Oh, and the Google ToS says you cannot use the service unless you are old enough to make legal contracts with Google. All those kids will probably be tried as minors, though, so no year in federal prison.
 
One wonders how many of the jurors adhere to, or have even read, the terms of service of the software they have on their PCs at home and at work.

I think there is a recurrent problem in law of judges and juries wanting to convict people for emotional reasons setting bad precedents and using bad law to convict them.

It may well get overturned on appeal

Just in case it doesn't I'll amend the terms of service of my own blog to require that anyone clicking on it leave me all their possessions in their will ^^
 
Some (most) of you guys obviously missed the point here... Tobold isn't saying what the woman did was right or wrong, he's saying that 'all' they've actually found her guilty of is breaching her Terms of Service.

By finding her guilty of this, it indicates that is is a crime to break the rules laid down by your ISP / Instant Messenger provider / Social Networking site(s). And that you could now, potentially, be prosecuted for telling google that your real name is "1337 Haxx0r", unless it really is.
You would have commited the same offence that Lori Drew did. Just because she did it maliciously, and you did it because you thought it was cool, doesn't make it any less of an offence.

Luckily I'm in the UK, so the Feds will need an extradition order before they come knocking on my door. But it opens up a whole can of worms for everyone.
 
Should 13 year olds be allowed to freely roam the internet without adult supervision?

If you have a 13 year old would you let them smoke weed?
 
This goes beyond the internet. What if she'd used another communication tool?

It would be hard, but maybe a case could be made for reckless endangerment? Or some kind of adult to minor harassment? These kinds of things are broad moral quandaries that *are* covered by the legal system; it's just maybe harder to get a conviction because it's far more subjective.
 
"Hmmm, I better head for the hills. I must admit that the name in my passport is *not* Tobold, thus I'm apparently committing a federal crime right now"

On the one had we have a prosecution using a legal loophole to nail someone for doing something morally wrong..

On the other hand, your saying a court could convict you for using Tobold as your name on a blog?

Sensationalist opinions generates hits more than logical thinking I guess...
 
That would actually depend on whether Google says I have to use my real name for blogs in their Terms of Service. I *do* say that a court could convict you for using "Ipwnyou" as character name in WoW, if they take this judgement as precedent. The thing is that "using a legal loophole to nail someone for doing something morally wrong" is tyranny, and has nothing to do with the rule of law. What if you do something legal, but morally wrong tomorrow, and are jailed for it? Who decides what is morally wrong? What if it was Jack Thompson who decided that, in which case you certainly did something morally wrong in your past.
 
This is a pretty bad case. She did a bad thing, but it's completed unrelated to the law being twisted here.

Of course, naming your character "Ipwnyou" already makes you a copyright infringer (in USA) as soon as you double-click the WoW shortcut on your desktop. Might as well pile some more stuff on.
 
It's almost offensive how people are reacting to this. I've heard people argue "Well we have to charge her with SOMETHING! She needs to be punished!" My god people! That is not justice. That is not law. That is a witch hunt. You can't just find something morally reprehensible and then trump up an excuse to punish them when there was no law against it. That is not how law works. Yes, what she did was a horrible act. The parent is perfectly within her right to file a civil case for damages, and she should! The people in the community are right in shunning this woman for what she did. But what she did was NOT illegal.

Article 1 Section 9 of the US constitution: No bill of attainder or ex post facto Law shall be passed.

If we all truely feel this was wrong and needs to be prevented, hey, lets make a law against it! But we can't charge Lori Drew with it. The charges of "accessing protected computers without authorization to obtain information to inflict emotional distress" is about as trumped up as you can get. And criminal conspiracy has always been a ridiculous charge as well.

On the plus side, all it was is a federal grand jury so far, which don't convict, just indict so justice hasn't been murdered yet. Also, they only indicted on misdemeanor charges, not federal charges. If they convict it will be sad, but hopefully the ACLU will take up the appeal.
 
I'd agree with Tobold & Caleb that you can't invent a crime afterwards to punish someone that did something that's wrong, but not illegal. I wonder if there might be a way forward in the long term by adopting laws similar to the UK's anti-stalking legislation.
 
Ok, not a lawyer here. But doesn't 'intent' factor in here? If I want to try an kill somebody and I can figure out a way to do it that is not illegal (lets say I lie to my high-tempered neighbor that I saw his wife sleeping with another man, knowing that there was a good chance that he would kill her), I would get off scott-free? Was Mrs. Drew 'intending' to harm the deceased? Isn't there a law for that?

I know here in Canada the government is looking at creating laws against 'cyber-bullying' though they haven't figured out the best way to go about it yet.
 
ToBold go kill yourself. I am reporting ya
 
I seriously doubt our civil liberties are threatened because the DA is massaging the law to get a conviction, especially when it's the public harassing the court to do something - anything - to make this evil bitch pay.

Let's hope they throw her into the general population )
 
"I seriously doubt our civil liberties are threatened because the DA is massaging the law to get a conviction, especially when it's the public harassing the court to do something - anything - to make this evil bitch pay."

That misses the point entirely. The point is that Law works on precedents, once you have convicted / not convicted someone of something, for a certain reason, that becomes a valid reason to do it again, or a valid defence not to.

The fact that she was a malicious bitch, and that her actions resulted in someones death is irrelevant as far as how the law is applied. (Anyone remember innocent until proven guilty?) And the offence that she's been charged with has no reflection on the morally wrong things she did.
So next time someone is up in court for "Drunkenly Insulting a Police Officer" and they can't get it the charges to stick, what's to stop them taking a look at your computer records, and charging you with "Breach of Terms of Service" as well.
How about using your social netwroking profiles to prove that you're not a liar? If you breached your ToS with your MySpace name, and told all your freinds that you were married to a supermodel and own your own racehorse, why should a jury trust what you say in court?
These are extreme examples, but court cases are full of extreme examples.

This isn't scare mongering, it's how the legal system works. (Both in America, and here in the UK, and in most of the western world).
If it didn't work that way, we wouldn't need lawyers... we'd just stand in front of a judge, and let him / her decide if what we did was "bad".
What else do we employ lawyers for?
 
Don't worry we already let non violent offenders out while only making them serve days, California especially has that problem. (Remember when they let Paris Hilton out after a few days, and then it came out that it wasn't special treatment, they let everyone out that's not violent. Including my relative who got arrested there for drug possession). This despite all the internet claims that our jails are full of non violent pot smoking first offenders.
Of course even a few days in prison is pretty bad.

I seriously doubt our civil liberties are threatened because the DA is massaging the law to get a conviction, especially when it's the public harassing the court to do something - anything - to make this evil bitch pay

Actually that's exactly what happened. Case law is one way how precedents get set for future prosecutions. There are plenty of bad things people do that are not crimes against the people. For those things civil courts are perfectly reasonable. Having the family sue her and garnish her wages for decades to come seems a perfectly reasonable punishment to me, and doesn't set a precedent for prosecuting people for misreprenting themselves. (Fraud is a crime but there was no fraud comitted here).
 
Lori wasn't convicted or sentenced based on violations of terms of service alone. She was convicted of three misdemeanor counts of "of gaining unauthorized access to MySpace for the purpose of obtaining information on Megan Meier". Since the servers for this action were in a state other than the one in which Lori Drew resided and because there is no existing Missouri state law regarding this specific issue, it became a federal issue. It wasn't only the act of violating terms of service that resulted in the convictions. It was the intent behind the actions that came into play during the trial. Lying online about your identity isn't enough to constitue the intent required to determine an actual crime has been committed. However, using that false identity in a way to obtain information you intend to use for harrassment or public humiliation would be a different story altogether.
 
"It was the intent behind the actions that came into play during the trial"

'Intent' only comes into play with the severity of the offence, and therefore your level of punishment, not whether you're 'guilty' or not.
You are just as 'guilty' of a crime even if you don't know that it is illegal, as you are if you know exactly what you're about to do is against the law.

Examples:
If I was to come to the USA, and drive around at 70mph, I'd still be guilty of 'speeding', even if I didn't know that the speed limit was 50mph.
Littering is banned in almost all countries, but in many places in Germany and Japan it is considered a much more severe offence. If I spat my gum on the ground in the UK, right in front of a policeman, he'd barely even flinch. If I did it over there, I'd be spot-fined, prosecuted, or potentially even jailed.

The same thing applies whether you're going from country to country, city to city, or town to town. Local laws are just as much 'Laws' as any others. And the fact that the Lori Drew case was a 'Federal' issue, that same precedent now applies to the whole of the US.

The fact that I didn't 'Intend' to break the law doesn't mean that I'm not responsible for my actions. I'd still be found 'Guilty'.
However my sentencing would likely be reduced to reflect my 'Intent'.
I'd still end up with a criminal record though.
 
EDIT: 'Intent' can sometimes determine the specific offence with which you are charged, for example 'Murder' / 'Manslaughter' but you are still going to be found 'Guilty'.
 
"What if you do something legal, but morally wrong tomorrow, and are jailed for it?"

Oh come on! Yes, you have a point.. breaking ToS should not end in a trip to court for using a fake name and I agree, technically what this woman did wasnt illegal. But its as good as standing beside someone threatening to jump from a building and berating them till they jump.

You know its wrong, I know its wrong.. any logical thinking person knows its wrong..

Wether they should have nailed her with a loophole is a different discussion altogether..

To imply that the same thing could happen to you for using a fake name to comment on games? You know damn well you are not going to get arrested for using a fake name, against googles ToS or not, you know its not going to happen because using a fake name to talk abotu games is in no way the same as using a fake name to maliciously harass someone with the aim of possible causing a suicide attempt.

Anyone with even a teaspoon of intelligence should be able to see a clear difference here.. and I assume you can because rather than respond to the part of my comment saying the comparison is weak you focus on the part I mention 'morally wrong'

Your hiding a sensationlist opinion behind solid logical facts making it hard to argue your sensationalist opinion without taking on the logical truth of the matter... you shouldnt be convicted for breaking ToS.

It still does not mean your comparison of using a fake name to write about games, and using a fake name to harass someone to the point of suicide, is any more feasible no matter how many logical facts you tack onto your whacky opinion..
 
Tobold,

It seems that only a small handful of the population can differentiate between a moral wrong and a legal crime. Everyone agrees that what this woman did was morally wrong, but regardless, she did not violate any laws that were on the books at the time. Is is possible for someone to do something "wrong" without it also being "illegal"? If not, then we are all criminals and we should all be locked up.
 
You know damn well you are not going to get arrested for using a fake name, against googles ToS or not, you know its not going to happen because using a fake name to talk abotu games is in no way the same as using a fake name to maliciously harass someone with the aim of possible causing a suicide attempt.

From what I understand the intent was only a factor for the felony charges which were dropped down to misdemeanors which had no intent. Her misdemeanor charges were merely for breaking the TOS. She was not convicted of anything that involved intent to harm anyone, she was not convicted of breaking the TOS with intent to do harm - the jury rejected those. She was only convicted of breaking the TOS, technically accessing a computer without authorization which is supposed to be hacking, but he jury convicted her of that crime because the government successfully argued breaking the TOS= hacking. Unless I'm reading Kerr's analysis totally wrong.

Thus we have legal precedent to charge others with the same "crime".

Do not forget as well the average judge does not have tons of experience with computers. Nor does even the average juror. So I would not hold out hope that "common sense" would rule the day.

Now will a prosecutor bother? No they won't come after everyone with a fake persona. But if you are charged with anything else, especially something computer related where they'll be investigating what you do online, now they can happily tack on this other charge if they can, just to stack the deck against you and increase the penalty and increase pressure on you to plea out.
 
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