"Terms Of Service" Could Become Legally Binding
The U.S. Department of Justice sparked strife with a new reading of the Computer Fraud and Abuse Act at a House subcommittee hearing Tuesday.
The law, which was written to prohibit "exceeding authorized access" on a computer - hacking a system or obtaining classified information without permission, for example - could be read in a way that makes violating a website's "Terms of Service" a federal crime.
A DOJ representative reassured the Subcommittee on Crime, Terrorism, and National Security that it lacks both the desire and resources to prosecute Americans who doctor their online dating profiles. But embellishing your LinkedIn resume (section 8a) might be criminal.
By outlawing terms of service violations, the department would have an easier time prosecuting cyberbullies such as Lori Drew, a 49-year-old woman who involved in a case where a 13-year-old girl committed suicide after interacting with a fake MySpace profile that Drew was involved with. Prosecutors got a conviction against Drew in 2008 for violating the Computer Fraud and Abuse Act, but the case was thrown out by a U.S. District Court judge.
"It basically leaves it up to a website owner to determine what is a crime," U.S. District Judge George Wu said of his verdict in 2009. "And therefore it criminalizes what would be a breach of contract."
The department's heart is in the right place, of course, but as groups like the American Civil Liberties Union and the Electronic Frontier Foundation pointed out in an August 2011 letter to the Judiciary Committee, outlawing terms of service violations is an overly broad way to solve the problem. In addition to snaring cyberbullies, it would also criminalize harmless fibs such as using a fake name on Facebook to protect privacy. It would also force people to digest needlessly long terms of service policies for online services, lest they inadvertently break the law.
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