It is supposed to be a truth of democracy that we are a nation of laws, not of men.*** Any law that makes us all felons is a law ripe for abuse and has no place in a democracy.
But when poorly written and implemented laws come up, as in the case with the Computer Fraud and Abuse Act or the Digital Millennium Copyright Act, people often rationalize that this is not a big deal, because it is unlikely that they themselves would be arrested for breaking these statutes.
Unfortunately these people are missing the fact that websites and companies have already been shut down, blogs and articles have been censored, and legitimate computer science research has been held up in litigation rather than being quickly published and computer vulnerabilities secured. These critics are missing the stories of technology that has never been created through legal uncertainty having a chilling effect upon innovation.
But it isn't just innovators, and creators of economic growth that are affected. It is all of us, as millions of Americans are now felons subject to the discretion of your local prosecutor. In one recent case, a woman was almost convicted of a felony for violating the MySpace terms of service, as I'll describe below.
A law that is seldom enforced but could be enforced against millions is the most nefarious and dangerous instruments of government power. It's a law that violates a fundamental tenant of our social contract.
Laws that potentially make us all felons and that can be enforced when it is politically expedient or when our behavior is odious to society and a prosecutor is looking for a public relations win - these are among the most dangerous laws that a free society can implement.
Such laws enable mob rule and are offensive to the legal institutions our Founding Fathers envisioned to protect individual rights against the whims of a majority. They make a mockery fundamental legal principles like mens rea.
Those concerns regarding an overzealous federal government being able to arrest anyone at will are precisely the concerns that motivated many of our Founders to demand the Bill of Rights as part of their support for the Constitution. Broad laws and regulations that make everyone felons blur these lines and degrade the institutions of justice that were codified in the US Constitution by our Founding Fathers.
In a nation of laws, before citizens are stripped of our property and liberty through fines or imprisonment, we must first be charged for violating a specific law, not just doing something "mean" or morally reprehensible.
But unfortunately, Americans are being prosecuted for acts that are morally reprehensible but are not truly crimes, as happened recently in the case US v. Drew. Lori Drew's daughter was being ridiculed at school by another girl. Drew made a fake Myspace page to taunt the girl who was spreading rumors about her daughter. As a result of Drew's messages, the other girl committed suicide. This is truly despicable behavior by the mother, and people were rightfully incensed and demanded action...but was there a crime that had occurred?
Bullying is not a crime, but the people demanded tough action. The US Attorney responded to public fervor by charging Drew with violating the Computer Fraud and Abuse Act (CFAA) - our computer hacking statute. What was the charge? That she had violated the "terms of service" of Myspace.com (that box you likely clicked through without reading), and therefore her access to the site was "unauthorized" under CFAA - the computer hacking statute.
Had Drew engaged in hacking, the purpose of the CFAA? No. That wasn't the point. The people wanted action, and Drew got indicted by a grand jury convicted by a jury.
Each of us violates these fine print terms nearly every day:
- Until recently Google's ToS forbade minors from using its services.
- Facebook made it a violation to let anyone else log into your account
- Dating websites like eHarmoney have ToS forbidding misleading or false information
- Ebay and Craigslist's ToS make it a violation to post items in an inappropriate category.
Further, these ToS can change without notice. "Accordingly, behavior that wasn't criminal yesterday can become criminal today without an act of Congress, and without any notice whatsoever." (US. v. Nosal)
Luckily, in the case of Drew, the US District Judge took the unusual step of overturning the jury's verdict, thus saving Drew from jail time.
But other courts have upheld the principle that violating terms of service on a website is a violation of the CFAA - meaning that if Drew had been charged elsewhere in the US she would likely have been put in jail. From a recent case, United States v. Nosal, Chief Judge Alex Kozinski of the Ninth Circuit wrote on the topic of holding individuals criminally liable for "hacking" for violating these terms of service:
Basing criminal liability on violations of private computer use polices can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved. Employees who call family members from their work phones will become criminals if they send an email instead. Employees can sneak in the sports section of the New York Times to read at work, but they'd better not visit ESPN.com. And sudoku enthusiasts should stick to the printed puzzles, because visiting www.dailysudoku.com from their work computers might give them more than enough time to hone their sudoku skills behind bars.
As with the CFAA, courts have generally upheld the provisions of the DMCA that make many ordinary Americans felons - such as the so-called crime of unlocking and jailbreaking your own phone.
Should your freedom be subject to the whims of your local judge and prosecutor?
*** In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men." Massachusetts Constitution, Part The First, art. XXX (1780).