Hell Is Paved With Good Intentions

7 06 2008

Some of you may recall the story in 2006 of 13 year old Megan Meier who committed suicide over an online friendship with a 16 year old boy who later turned out to be fictitious. Worse yet, the person who created the fictitious persona was a mother herself. When a child does this it’s perhaps more understandable, but an adult ought to know better. It’s a terrible tragedy.

Yet whilst Mr President’s sympathies lie with the Meiers, having himself suffered something quite similar with a bogus online persona, the news that creating a false MySpace account is now a criminal offence is worryingly disconcerting. The rationale is that breaching the TOS of a website constitutes “unauthorised access”, which makes sense, given that you’re only authorised to use the website under the TOS.

The problem with this, however, is that the TOS have previously only had a contractual status, with the penalties for breach being merely civil. People who have already agreed to TOS on the basis that they are contractual could now be retroactively punished for something that was not criminally punishable when they did it. How many of you have ever breached the TOS of a website? You could now potentially face charges.

We generally don’t allow ex post facto laws in democratic societies because they contravene the rule of law. In layman’s terms we generally don’t allow laws that make something criminal that wasn’t so when the act was committed, because people have a right to know that an act they’re about to commit might bring with it criminal repercussions. If they still choose to do it, they’ve agreed to accept punishment.

Of course if the case against Lori Drew, the woman who impersonated the young boy, is proven, she deserves to be punished to the full extent of the law. Nobody would deny the Meiers justice for the tragic death of their young daughter. The woman should not be protected simply by virtue of the fact that what she did was online under an assumed identity, but equally neither should we allow this broad precedent to be set.

Such a precedent would be incredibly dangerous given just how many of us sign up for web-based services having ticked the little box to agree to Terms Of Service that we’ve never even read. It appears, thankfully, that the basis of the rationale is not that Drew used a false identity, but that in doing so she breached TOS. If it were the former those of us who blog under assumed identities could actually be in danger of prosecution.

Apparently the issue here is that the breach of TOS was only part of the offence, and her alleged crime was using information gained via such a breach to commit a further Tortious act, but it does raise a little uncertainty. Could a blogger who has breached TOS (even unknowingly) face criminal charges for writing something defamatory?

Mr President has, in the past, created profiles and “fake” accounts on several websites in the past, as he is someone that prefers using pseudonyms. He has done this knowing that the most “punishment” he might face is a suspended account and possibly being permanently banned from using a particular service. He was happy to risk these consequences but he has never agreed to risk facing any criminal sanctions.

In truth we don’t even know if the judge will accept this argument. Even if it did become law, it is unlikely prosecutions would be allowed simply for breach of TOS without any further Tortious act(s). The concern, though, is that the uncertainty over what the law actually is could lead to people censoring themselves to avoid the risk.



2 responses

13 08 2008
Jean at Penny Lane

I think many people who like to try new systems or free software use fake names. But we do it to harm no one. In this case, Mrs. Drew planned this scheme, did she ever thing of the future outcome?

From what I understand and have recently read, she has already been tried and persecuted by the public and her life is a living hell. Well, what comes around goes around, her emotions are tortured just like the young girl felt before she took her own life.

13 08 2008
Mr President

Yeah, that’s the problem I have with this. I’ve used fake names before.

Whilst I do agree that there’s an obvious difference between that and Mrs Drew’s actions I worry about this case setting a bad precedent.

I’m glad she’s having to suffer though. Sometimes trial by public can be worse, and as you rightly say, it’s no more than she richly deserves.

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