You May Be Committing A Felony By Reading This
A pending provision before the Senate Judiciary Committee would make it a felony to “exceed authorized access” on a computer. As GWU law professor Orin Kerr notes, this is rife with potential for abuse.
The problem is that a lot of routine computer use can exceed “authorized access.” Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include “terms of use” violations and breaches of workplace computer-use policies.
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In 2010, the Justice Department charged a defendant with unauthorized access for using a computer to buy tickets from Ticketmaster. Ticketmaster’s website lets anyone visit. But its “terms of use” only permitted non-automated purchases, and the defendant used a computer script to make the purchases.
In another case, Justice has charged a defendant with violating workplace policies that limited use to legitimate company business. Prosecutors claimed that using the company’s computers for other reasons exceeded authorized access. The Ninth Circuit Court of Appeals recently agreed.
If those scenarios aren’t scary enough, how about this one. I just quoted a big chunk from Prof. Kerr’s article. And you just read it. If the Wall Street Journal web site has a limitation on quoting hidden somewhere in a terms-of-use provision that neither of us ever saw, we might both be guilty of a federal crime for exceeding the terms of use of their web site (or this one).
Moreover, most blogs have rules that restrict comments from containing vulgar or abusive language. Those rules often go unenforced by the blog sites themselves, due to the way the flood of incoming information exceeds the ability of volunteer moderators to monitor the situation. But now some over-eager federal prosecutor could help them out, not by editing or banning abusive commenters, but by threatening them with jail. Even those of us who are frequent targets of internet trolls aren’t comfortable with that level of punishment.
The problem is that Congress and many state legislatures are frankly out of control with the “tough on crime” bit. It is all too easy or politicians to constantly expand the scope of coverage of criminal laws and ratchet up the intensity of punishments in their zeal to appeal to law-and-order voters who are tired of real crime. Those politicians rarely see the actual effects of their misguided and poorly targeted efforts. After the press conference is gone, they simply move on to the next mind-numbed policy disaster cooked up by some 22-year-old legislative aide.
Meanwhile, prisons are bursting at the seems with inmates captured like fish from an endless sea in a futile and farcical “drug war.” Teenaged boys who have sex with their teenaged girlfriends find themselves sentenced to a lifetime of registering as sex offenders due to ham-handed policies intended to combat real, violent sex offenders, but blindly expanded every time another case finds its way onto 24-hour-cable news. And millions of individual citizens commit crimes every day without even knowing they are committing crimes or even doing anything mildly wrong.
Maybe this law is a good idea in a perverse way. After a few thousand people go to prison for lying about their age on Match.com, maybe some legislatures will cry “enough.” But I wouldn’t count on it. It is more likely that they will simply declare it a crime to use a computer that has passed through interstate commerce to criticize Congress without a permit. Or something.
12 Responses to “You May Be Committing A Felony By Reading This”
For once something we agree upon Logan – great post.
Whatever happened to the concept of “void for vagueness”?
This is the problem with the “There oughtta be a law!” mentality of so many Americans:
Some well-intentioned person is concerned with a problem and proposes a law to deal with the problem. However, the law is written so broadly that it can theoretically be used to criminalize not only the initial problem but dozens of other lesser problems that no sane individual would suggest should rise to the level of a felony or even a misdemeanor.
However, once the law has been passed, good luck with expecting your local prosecutor in using common sense in enforcing said law. Once a law is in place, most prosecutors have broad discretion when it comes to enforcing said law, even if it means using the law to prosecute “crimes” that the legislators who wrote the law never intended the law to be used for. This is true to drug laws, gun laws, pornography laws, statuatory rape laws, and a host of other laws that have been used to charge and even imprison non-violent individuals–many of whom did not even realize that they were breaking any law.
So the next time your legislator proposes a law intended to solve a problem, before you start applauding your legislator, take it upon yourself to actually read the law in question and consider the unintended consequences of that law.
@NICK RIVERA
I would add that you should make sure there is actually a problem that needs to be solved.
There needs to be a fundamental overhaul of laws regarding the internet, privacy, website usage policies, digital media ownership, software copyrights, cybercrime, and practically all things IT. It’s a tragic mess of complexity, fine print, unintelligible & illogical rules, all of which is working towards crushing the spirit out of something that has revolutionized the world.
Unfortunately, I only know of a few Congressmen who even begin to understand, much less care, about the issue. Reform of this is a long way off, and we’re already about 10 years too late.
Blast you Logan! Must you always be so contrarian?
Law was invented to create civilization from chaos. What…..now you have become anti-civilization? We need more law man, not less! NOW look what you have done. Will you please do the “politically right” thing and go straight to the nearest FBI office and surrender yourself?!
One day Logan, you will discover that the word Liberal was derived from the word Liberty.
Then obviously the word conservative was derived from the word contrarian.
Actually Logan, conservative comes from the word “conserve”, or tightarse in laymen’s terminology. Mostly a form of control, politically. The opposite of free. I must say though, that in this circumstance, your contrarianism is quite the enigma. Though it is a good read Logan, very good.
Allen, I do not think you provide a fair or unbiased definition of conservative philosophical underpinnings. It reminds me of how a Rush Limbaugh would define liberals — fun for the already converted, but offensive to the people it caricatures.
Logan, some days are just for laughs and mending fences. We are not your enemy. No mater how your caricature creators portray us.
I thought that’s what I was doing. I don’t believe in Limbaugh’s caricature of liberals. I just wish some people around here would “mend fences” by setting aside their hateful caricatures about conservatives for a little while. I think that process starts at letting them speak for themselves instead of having their views ascribed to them by their rivals and critics.
Any web administrator or SW engineer worth their weight would use a “human required/challenge-response test” to void any script used to automate a response to a site. Ticketmaster is equally guilty for allowing scripts to hack into their site.
http://en.wikipedia.org/wiki/CAPTCHA
Personally, I hate any paranoid site which uses CAPTCHA to harass blogs/bloggers. But any commercial site MUST use challenge-response tests to insure security…
Notice no partisan politics were used to smear anyone