Thursday, July 2, 2009

A Bad Verdict Reversed... For the Good of All of Us

Judge to Reverse Conviction in Deadly MySpace Hoax,0,1166066.story

What a week! Celebrities and near celebrities are dropping like flies. However, buried in between the obits is a bit of news that is both good and sad.

In 2006, a very depressed girl, having been led on by a group of people using a fictitious boy's identity on MySpace, committed suicide when she was dumped by the illusory boy. That the people, and in particular one woman, involved in the deception were incredibly heartless and stupid is not in question. If there is a punishment for the souls of these people, I hope it is a fitting one.

Unfortunately, the suicide's family and certain prosecutors decided that the woman that they viewed as culpable should be held responsible and punished. It did not matter that there was no explicit law prohibiting the woman's behavior, they were going to ensure that somehow this woman would pay for her actions.

They charged her with various felonies and misdemeanors they thought were applicable. Sadly, the jury rejected the felony charges that she used a computer to intentionally inflict emotional harm to the girl. The jury was deadlocked on the charge of conspiracy.

However, she was found guilty of three misdemeanor counts of illegally accessing a protected computer.

Her conviction on those three misdemeanors counts are going to be reversed by a federal judge... and rightly so. Why, you say? Because if those misdemeanor counts had been upheld by the judge then technically and legally thousands of Americans could be prosecuted and held guily for similar crimes. And what were those crimes? She violated the terms of agreement of MySpace. By lying about her identity and creating a fictitious persona she had accessed MySpace's computers and servers illegally.

However, to uphold the verdict to punish this woman using the misdemeanor in illegal access charge would have set a precedent would have had broad reaching implications affecting day-to-day use the Internet by thousands.

If you read the fine print of most terms of agreement, these are violations of said agreement and accessing the site upon doing so is virtual trespassing. Federal law, meant to address the actions of hackers and others who illegally access computers, is written broadly enough to apply to such virtual trespassing. Create a phony identity, use it, and, if prosecutors decide to pursue it and they cannot get you on any other charge, you can go to jail. Another tool in their prosecutorial tool bag, as they might say.

Make no mistake about it, people who create false identities for the purposes of committing a crime or inflicting harm upon another should find themselves held accountable by an correctly applicable law, if only to make them think twice about committing such an action, but that law should reflect the actual crime not some technical violation that, strictly speaking, is nothing more than violating the terms of the contract and, therefore, civil law.

Most people do not read the terms of agreement for the sites that they register with. The arcane language and broadly worded warnings and prohibitions are nonsensical to the average user. I like to read them occasionally because I get a good laugh out of them sometimes. (I recall the TOA of one web site that, if taken literally, meant that even your real name and address became the property of the company running the web site and could not be used to register with any other site!)

Under the law, if you lie about your age, don't use your legal name (use of a nickname), or fudge the truth on anywhere on your profile, you have violated the TOA. Every day people plug-in phony names, incorrect information, etc., when they create identities or register with sites that require them to do so. They do so for reasons of privacy or to avoid spam, to name but two common scenarios. And this begs the question, should they be prosecuted when discovered? I certainly hope not. And I am fairly certain that among the thousands that are potentially guilty of this that there are judges, state and federal officials, governors, members of Congress, etc., amongst the common people engaging in this technical violation.

The actions of the woman that led to the young girl suicide were wrong. However, the attempt by prosecutors to charge her with illegal access was also wrong. I'm glad the judge has reversed the woman's conviction on those counts.

As for the woman's punishment... I have a feeling she will carry the guilt for her sins, in her own way, the rest of her life. I hope the burden does not lighten with age.