Congress, Obama Administration Want to Make It a Federal Crime To Lie on the Internet

Wednesday, November 16th, 2011

Sigh.

The way the Justice Department wants to interpret a current law, lying on the Internet would amount to a crime.

Richard Downing, deputy chief of the Computer Crime and Intellectual Property Section at the Department of Justice, argued that in order to properly protect the country, the part of the CFAA that says a person must exceed their “authorized access” to break the law should include a violation of the terms of service.

This is how DOJ went after Lori Drew, the woman who used a MySpace account to pose as a teenage boy in order to torment a girl who was bullying her daughter. The girl later committed suicide, which led to calls for Drew’s prosecution, even though it wasn’t clear that she had committed any crime. The charges were tossed by a judge, so Congress and DOJ want to give prosecutors more power. But in the name of protecting intellectual property and national security.  Here’s how Downing put it in his testimony.

“These are just a few cases, but this tool is used routinely. The plain meaning of the term ‘exceeds authorized access,’ as used in the CFAA, prohibits insiders from using their otherwise legitimate access to a computer system to engage in improper and often malicious activities. We believe that Congress intended to criminalize such conduct, and we believe that deterring it continues to be important. Because of this, we are highly concerned about the effects of restricting the definition of ‘exceeds authorized access’ in the CFAA to disallow prosecutions based upon a violation of terms of service or similar contractual agreement with an employer or provider.”

The Volokh Conspriacy’s Orin Kerr also testified.

“In the Justice Department’s view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice.”

I think we should just bar Congress from passing any law related to the Internet.

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34 Responses to “Congress, Obama Administration Want to Make It a Federal Crime To Lie on the Internet”

  1. #1 |  MH | 

    This morning I saw a car with a bumper sticker reading “Support Our Troops” and the fine print, “We’ll need someone to overthrow the government.” Not that I support a military coup, but you can understand the sentiment.

  2. #2 |  Boyd Durkin | 

    The way the Justice Department wants to interpret a current law, lying on the Internet would amount to a crime.

    Well, my days are numbered.

    Also, will this impact porn? Sometimes they say things I don’t think they really mean.

  3. #3 |  Zeph | 

    I think we should just bar Congress from passing any law…

  4. #4 |  Psion | 

    Well that’ll be the end of Second Life. And my disinformation campaign against Facebook and Google+ will be compromised as well. And how do you determine a lie? Will atheists go after religious websites? Will the Bad Astronomer be able to launch a campaign against astrology using more than his usual wit? Will the owners of climate skeptic sites face legal harassment from the anthropogenic climate change crowd? And now there will be legal implications behind editing an article in Wikipedia!

    The mind whirls! Our legislators have stumbled across a wonderful new way to disenfranchise anyone they don’t like! Just mine their online activities and press charges for every mistake/inaccuracy/lie.

  5. #5 |  Drouse | 

    On the bright side, think of all the politicians open to prosecution for lying on the internet.

  6. #6 |  dave smith | 

    Drouse, I’m sure they’ll be exempt.

  7. #7 |  BamBam | 

    @5, your statement should read
    think of all the politicians open to prosecution for lying on the internet.

  8. #8 |  John Thacker | 

    “I think we should just bar Congress from passing any law related to the Internet.”

    Indeed. I’m all for an open Internet and net neutrality, I just think that the government (and especially the FCC) is a terrible means of policing it. Besides this law, there are awful proposals like IP PROTECT/COICA/whatever it’s called these days.

    What exactly is the thought process of people who worry about things getting censored on the Internet, and then decide that the way to combat it is to bring in the FCC to monitor things?

  9. #9 |  GeneralGarbage | 

    Guys, this doesn’t criminalize lying on the internet as such. I’ll still be able to tell people on discussion forums that I’m an 8 foot tall Olympic power lifter and that they’d never say that to my face.

    What this does criminalize, is violating terms of service. So, for example, if the facebook ToS forbids pseudonyms, it would then be illegal to FB pseudonymously.

    More dangerously, this could make trolling and flaming illegal, as those are often against ToS for accessing information systems.

  10. #10 |  Z | 

    If this goes through, nobody will ever sell or buy anything or go on a date through an online website.

  11. #11 |  derfel cadarn | 

    If lying on the Internet will become a crime then I guess we can expect the shut down of ALL government web-sites and ALL politician originated Facebook, You Tube,Twitter and the multitude of other social network accounts. I would suspect that like insider trading this law will not apply to our elected “representatives”, Isn’t that convenient !

  12. #12 |  Meandonlyme | 

    While I think the DOJ interpretation is stupid and wrong and dangerous, it does not say that lying on the internet is illegal. They say it is is is only illegal if the system you are using (e.g., Facebook, theagitator.com, etc.) makes being truthful a requirement to use their system. In their view, you a free to lie on internet forums that don’t require being truthful (e.g. foxnews.com). The danger is that it allows the likes of Facebook to determine what is lawful and what is not. Facebook could say that you may not post messages about bacon cheese fries, and then my entire Facebook wall becomes an indictment against me.

  13. #13 |  Mike | 

    This isn’t about lying “on the web”.

    It will become “You lied about my record while I was campaigning for office.”

    What that means is that “generalizations,” and partial information” will become legally and technically, “lies” because every single detail wasn’t included.

    In effect, the “truth will be called a lie” so you can now be jailed for normal opposition, or political voice.

    Welcome to the beginning of the age of “quelled dissent” where you will shut your mouth, agree with us, and accept who we give you to accept, or else.

  14. #14 |  FloO | 

    I read somewhere if you lie twice, you’re automatically engaged in a “pattern of racketeering.”

    I’m still a little surprised that, after all these many years, there are STILL so many new laws that have to be passed.

  15. #15 |  k | 

    it’s the one reliable thing about statists: try as they might to be sly and inscrutable, all you have to do is pay attention. They’ll tell you who/what they fear.

    now the question is, why would they fear “unregulated” media? how could that *possibly* hurt them? hmmm…..

  16. #16 |  David Harmon | 

    GeneralGarbage: What this does criminalize, is violating terms of service.

    Which effectively gives any ISP, social site, or even most software vendors, the power to pass laws and have them enforced by the Federal government. “Well, LGF’s terms of service state that you may never demean the Republican Party, nor receive welfare from any source. In order to post the comment in evidence, you had to click on the button stating that you agreed to their TOS in its entirety…..”

  17. #17 |  StrangeOne | 

    John, its because its about protecting certain IP, not everyone’s. Large companies don’t like having to file DMCA claims on every website, they would much rather just get congress to pull the switch on youtube whenever they say so. They want to turn a civil matter into a criminal matter, so that the government will do the work for them. It’s not about protecting internet freedom, that’s just classic doublespeak. It’s all about protecting the profits of the few and the powerful and aiding the merger of corporate and state power.

  18. #18 |  Digital_teat | 

    will websites like Wikipedia and NEWS network sites be convicted for their false info? Heck yeah, any information including unproved/proposed scientific theory could be a lie.

  19. #19 |  H. Rearden | 

    An attempt to make all of us criminals. Who would have guessed?

    Did you really think we want those laws observed? said Dr. Ferris. We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. 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. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Reardon, that’s the game, and once you understand it, you’ll be
    much easier to deal with. (‘Atlas Shrugged’ 1957)

  20. #20 |  rsm | 

    “Sigh.”

    Yupp, that about covers it.

  21. #21 |  CyniCAl | 

    “I think we should just bar Congress from passing any law related to the Internet.”

    Great idea. You and what army?

  22. #22 |  C. S. P. Schofield | 

    It’s rapidly getting to the point where I think our only hope is that memory keeps getting cheaper, more and more information is stored on networked computers, and the government continues to insist on having access to it all. That way, eventually, the government will have theoretical access to so much information that it won’t be able to find any one specific piece. Then the whole mess will come to a grinding halt, and we can perhaps build an ethical and sensible society in the ruins.

    Or at least enjoy the sight of fat congresscritters trying to outrun the lynch mobs.

  23. #23 |  freedomfan | 

    I understand that some folks are trying to clarify what the law is supposed to do, and I appreciate that. However, a law that says an activity that violates part of a TOS is a criminal offense is a law criminalizing that activity, just not for everyone. If it turns a matter of potential civil litigation into a criminal matter, then it is criminalizing something.

    Now, it’s true that if such a thing passes and people take it seriously, then lots of people will be looking to find different outlets for interaction on the internet, outlets that have less restrictive TOS agreements. If it looks like being on facebook can result in criminal jeopardy for giving the wrong age or fibbing about relationship status, then fewer people will want to be on facebook and facebook will likely change its TOS.

    And, really, that points to another significant danger of such a law. Facebook (for example) isn’t going to want to get a reputation for getting its members into trouble with the law, so they will only sic the government on people who have done something that is unpopular. In other words, they will pick and choose who to go after and that will add another layer of arbitrary, capricious, and potentially vindictive prosecutions to the law.

  24. #24 |  Bergman | 

    Re: GeneralGarbage, #9:

    Facebook recently booted Salman Rushdie out of his account, on the grounds that they don’t allow accounts named after celebrities, unless that actually is the celebrity in question. The fact that he really IS the famous Salman Rushdie didn’t seem to matter to Facebook. Then when Facebook realized their error, they reinstated his account using his first name, which he never uses, except on his passport where his full name is written. Thus Salman Rushdie got edited into Ahmed Rushdie.

    That sort of thing is bad enough. But if violating ToS becomes a criminal offense, it could be even worse. The first sign the man might have had that Facebook thought he was using someone else’s name, might have been police arriving to haul him off in handcuffs. Then on top of having to prove his identity to Facebook in order to not lose his account, he’d be facing felony charges in federal court, to simply prove he owns his name, and if the court disagreed with him, he’d go to prison for computer hacking.

  25. #25 |  Jeff | 

    So Congress is basically turning into this guy: http://xkcd.com/386/

  26. #26 |  Carl-Bear | 

    So pointing out that Obama is completely dissociated from reality and his handlers are afraid to let him speak in public without a Teleprompter is still legal?

    -whew-

  27. #27 |  John C. Randolph | 

    If it becomes a crime to lie on the internet, there’s a lot of bureaucrats who are going to have to shut up all of a sudden.

    -jcr

  28. #28 |  Windy | 

    If they criminalize “lying” on the internet, won’t they have to extend that legislation to ALL forms of media? How would that affect newspapers and TV news shows (they lie about lots of things, all the time, particularly how laws will affect us before they are passed and also about the politicians, both pro and con)? How about movies, books and TV entertainment (all fiction is a lie, after all)?

  29. #29 |  James | 

    Hey, just shut your mouth and don’t go against your government. That’s what the message is. The Feds will tell you what you need to know, not your friends.

  30. #30 |  albatross | 

    The beauty of this is that the terms of service of most stuff on the internet runs to dozens or hundreds of pages of write-once, read-never legalese. That stuff is designed not to be read, as you can tell when every f–king software update for iTunes comes with a 100-page EULA.

    Nobody ever reads them. But someone (Facebook, the MPAA, the feds) wants the ability to turn those terms of service which nobody reads and which are designed to be very hard to read or understand into something with the force of law.

    This will be a great way of making almost everyone subject to selective prosecution. And given the way things work in America, that will mean that people who are overly annoying to the powers that be (say, Wikileaks supporters or whistleblowers who post something under a pseudonym) will be prosecuted to the full extent of the law, while people who are supportive to the powers that be (say, astroturfers working for an establishment political campaign or PR firm) will of course face no legal consequences.

  31. #31 |  DannyJ119 | 

    I’m challenged in thinking that Congress is willingly letting corporations essentially write their own laws (TOS) while congressmembers are no longer collecting cash for them. When did a civil agreement/contract/TOS become enforceable by federal agents. This is absolutely ridiculous.

    That being said, I’ve recently signed up for a dating website. The DOJ should have a field day prosecuting all of the women on there self categorized as slim and trim, while their photos reveal multiple chins and overhanging bellies. Bring in the swat team. Some of them have puppies.

  32. #32 |  Tor Munkov | 

    They just want to create an artificial scarcity so prices can rise and they can extract rent. It is the FCC that already uses force to prevent all available television and radio frequencies from being full of programming.

    The market will respond like usual, and every ip address on the internet will be given a truth and troll credit score, so site owners like Radley can decide to risk allowing them to post on his site or not.

  33. #33 |  The Agile Panda: US Bill Creating the Great Firewall of America « Xanthippa's Chamberpot | 

    [...] The Agitator points out that the US is trying to make it a federal crime to lie on the internet. [...]

  34. #34 |  Free speech and chilling effects roundup | 

    [...] Federal crime under CFAA to lie on the internet? [Kerr, more, yet more, Balko] [...]

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