Everyone With an Online Dating Profile Could Soon Be a Felon

Thursday, September 15th, 2011

Orin Kerr explains:

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that “exceeds authorized access” to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

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.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don’t like. Imagine the Democratic Party setting up a public website and announcing that no Republicans can visit. Every Republican who checked out the site could be a criminal for exceeding authorized access.

If that sounds far-fetched, consider a few recent cases. In 2009, the Justice Department prosecuted a woman for violating the “terms of service” of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?

What happens is merely another step toward the complete criminalization of everyday life.

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28 Responses to “Everyone With an Online Dating Profile Could Soon Be a Felon”

  1. #1 |  NAME REDACTED | 

    You are late to the game. Every day life is already criminal. We are all felons, Orin, we are all felons.

  2. #2 |  MassHole | 

    Maybe I’m just dense, but how in the hell should the government have any interest at all about what is on a private companies servers? If one violates the terms, then the company should shut down your account, end of story. If the Justice Dept is going after people with fake profile photos, they seriously need to lay off some people. I really don’t understand the mindset of someone that would go to work everyday, do something this ridiculous and feel like a job well done.

  3. #3 |  random_guy | 

    As much as I detest most of her writing, one quote of Ayn Rand has always stuck with me:

    The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

    Every freaking day in the “Land of the Free”. This is insane, terms of use aren’t even binding contracts, including the software you use locally on your computer. Actually licensing agreements require actual contracts, including signatures, lawyers, and notarizations, etc. Those already have legal repercussions for violating them, I use programs like that at work all the time.

    They’re trying to move us into some kind of renters society, where everything you own and use is only at the discretion of some company with expansive legal capacity to punish you for doing what they don’t like with it.

  4. #4 |  Gordon | 

    Well, we could always say the error was due to imperial-metric conversion…

    ;-)

  5. #5 |  Mike | 

    Most politicians now have social pages, trumpeting how wonderful they are. If any item on the page is untrue, they are insta-felons. Lock up the politicians!

  6. #6 |  fwb | 

    If folks would read and lsiten and hold their elected servants feet to the fire, we would not be in the situation we are in. Don’t EVER vote for ANYONE who has EVER held an elected office. ALWAYS vote the bastards out.

    The federal government DOES NOT HAVE CONSTITUTIONAL AUTHORITY to create a myriad of federal crimes. The federal government has no power without a grant. Period. Too many stupid people have not learned this. Our supposed to be government is not like ANY other government in world. Our de facto government is a lie.

    The Constitution specifically PROVES that the feds were NOT given general police (the power to make things crimes) because the Constitution grants specific police powers in exactly four areas, and in no others. EVERYONE EVER punished under federal criminal statutes not related to counterfeiting, piracies and felonies on the high seas, offenses against the law of nation, or treason was punished UNCONSTITUTIONALLY. One cannot argue with any reason or logic against this truth. Any argument claiming expansive police powers negates the inclusion of these specific powers and is thus proven wrong.

    The true separation of powers is: The Feds are given authority to pass laws in certain specific limited areas. The feds are NOT given power to punish violations of those laws, except in the 4 specific granted areas. The Constitution and laws made in pursuance thereof are the supreme law of the land. States who ratified the Constitution agree to these rules. Thus the States, who retained police power, are to enforce the laws the the Congress passes BUT the States can refuse to enforce laws the States do not find meeting constitutional muster. THIS is the real separation of powers the Framers gave us. It is NOT the BS talked about in the history books, that being a sharing among the 3 branches. Feds make laws, states enforce but only if the states decide the federal law is constitutional. The feds cannot punish except in the 4 areas where explicit grants exist. End of story.

    This is all well and good but the feds have the bigger guns and We the People have not done our job to keep the feds in line.

  7. #7 |  Pablo | 

    When that guy wrote the book “3 felonies a day” (supposedly the number the average person commits each day) I thought the title/premise was hyperbole and said so here and at H&R. Im thinking I may have to eat some crow.

  8. #8 |  Meister574 | 

    Under this logic, every actor on Glee has broken the law since they all have twitter and facebook accounts under their character’s persona.

  9. #9 |  Dr Duck | 

    @pablo –

    Sorry, eating crow is now a federal crime.

  10. #10 |  Pablo | 

    #9 Dr. Duck–yes, esp. if it is raw

  11. #11 |  Dante | 

    I vote with #2 (Masshole). It would be a waste of time & resources to pursue such ticky tack charges for surfing the web with a false ID. Or at least it should be, and let us make it so.

    It is time for all citizens to confront our elected officials about the complete and utter waste of time and resources our government keeps forcing We The People to pay for. It is time for all the “Public Servants” to stop serving only themselves.

    In this day and age of tight budgets, any administrative or government function that does not please an overwhelming majority of We The People should be cut.

    This is too easy. What could be more obvious than the war on drugs and the DEA itself? How about the ATF, which is entirely duplicated within the FBI? Why do we need 16 (Sixteen!) different intelligence agencies? Couldn’t we survive with just 7 – one for each day of the week?

  12. #12 |  Kristen | 

    Dunder Mifflin is not a real company, either.

    So, so far we can report Glee/Fox, various politicians and The Office/NBC Universal as criminals under this act.

    Anyone else?

  13. #13 |  Me2 | 

    Thanks to this nonsense, we can probably add “Exceeds Authorized Access” to the government’s ever-expanding ‘Wheel Of Excuses To Regulate Stuff’. Maybe there’s still an open slot between Protecting the Children and Catching the Terrorists.
    Hey, at least we’ll be able to say we were around when the internet was still a place where adults could go to play.

  14. #14 |  Elliot | 

    There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. When there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. …

    —Ayn Rand, Atlas Shrugged

  15. #15 |  Elliot | 

    Looks like random_guy (#3) beat me to the punch.

    That quote is so obvious for this and similar examples of excessive criminalization of behaviors.

  16. #16 |  Me2 | 

    Wait a sec, it just dawned on me from my last comment that this could be an acronym: Wheel Of Regulate Stuff Excuses. W.O.R.S.E.

    Good job, me. Now SFTU. (beat you to it)

  17. #17 |  Bob | 

    #2 | MassHole

    Maybe I’m just dense, but how in the hell should the government have any interest at all about what is on a private companies servers? If one violates the terms, then the company should shut down your account, end of story. If the Justice Dept is going after people with fake profile photos, they seriously need to lay off some people. I really don’t understand the mindset of someone that would go to work everyday, do something this ridiculous and feel like a job well done.

    They don’t. But if they’re investigating you for some other crap, like an informant pegged you as a drug kingpin, but there is no evidence of that, this gives them something to charge you with.

    Case in point: the “Lying to a federal Agent” charges brought against Martha Stewart.

    Eventually, ANY action on your part construed as “Contempt of Cop” will probably result in an ‘investigation” that finds Federal Felonies to charge you with.

  18. #18 |  GeneralGarbage | 

    This strikes me as another step towards the merging of state and corporate power. Now, not only does your boss have the power to fire you, he can prosecute and sue you for slacking off.

  19. #19 |  Mike T | 

    There comes a time when the law criminalizes so much that every man becomes “a criminal/evil-doer” and the only true law is “and do what thou wilt shall be the whole of the law.”

  20. #20 |  Boyd Durkin | 

    “Truthful” is to “Internet” as “fish” is to “bicycle”.

    Stop the charade. Everyone is a felon whose existence is at the discretion of the state.

  21. #21 |  donttread | 

    Once again showing that the Democrats offer no special advantage in protecting civil liberties over the Republicans. The key factor is preventing growth of government, government powers will be misused by either party.

  22. #22 |  HONORYOUROATH | 

    Jury Nullification!!!!!

  23. #23 |  John Q. Galt | 

    Did MySpace make a criminal complaint? Or is law being enforced like domestic abuse cases?

  24. #24 |  albatross | 

    Random Guy:

    Yeah, she hit it out of the park with that observation. Thats kind of my general experience with Rand–she’s writing from a truly weird worldview, in a world that looks quite different from ours in many ways, she claims to know and have proven more than she really has, etc. And yet, her books and essays have quite a few really nice insights about the world.

    Among my favorites is the “sell them poison as food and poison as antidote” line, which seems to me to describe modern US politics dismayingly well.

  25. #25 |  Elliot | 

    @albatross (#24), many criticize her for writing characters which are unrealistic caricatures, which is a fair complaint, to a point. To me, the theme and message of a novel is more important, so I consider such limits on character depth and nuance to be minor. Your mileage may vary.

    The fictional villains she portrayed may have seemed completely alien to my experience in the US, up until a few years ago. Her worldview was shaped by living under the boot of the Bolsheviks, and most Americans were insulated enough in the past that “it can’t happen here” was quite a comfortable defense mechanism. Unfortunately, many of the characters and scenarios which seemed unlikely to occur here have actually turned out to be fairly prescient.

    I generally don’t have a problem with her on epistemology, but rather the application of her own principles to particular issues. Still, as flawed as she and her novels may have been, I still think that most criticism of her is misplaced and her reasoning and ethics still far surpass that of most of her critics.

    Love her, hate her, you can’t ignore when her words fit the current situation so well.

  26. #26 |  Warren Bonesteel | 

    So…I get to bust my wife for downloading those online games I hate to see using up space and memory on my computer?

    She hasn’t got any money to speak of, so suing her for damages isn’t an option…

  27. #27 |  Elliot | 

    @Warren Bonesteel (#26), what’s she doing spending time on such things on your computer? It sounds like being married to you is an exceptional experience. She should find sufficient challenges and excitement in her relationship with you not to need artificial puzzles or simulations.

    Maybe you should leave some extra ammo boxes and first aid kits at evenly spaced intervals in your home.

  28. #28 |  Windy | 

    “and the only true law is ‘and do what thou wilt shall be the whole of the law.'”
    Ah, nice to see another pagan here. I always felt pagan beliefs and libertarianism are a perfect match, but most of those pagans I know are liberals and progressives (???). For those who are unaware of that quote, the whole thing is “An it harm none, do what thou wilt shall be the whole of the law.” It is called the Wiccan Rede but all pagans (including those who are NOT Wiccan) live by it, to the extent our society allows. I think all humanity should live by it.

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