September 15, 2011

"Should Faking a Name on Facebook Be a Felony?"

Orin Kerr asks:
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.
I was a victim of that crime back in 2007, and I got mocked for even objecting to the behavior, as though I was repressive and humorless. ("You know, I realize you're going on 70 or whatever, but seriously, you act like you're still in high school, being picked on.") I never said I wanted the government to prosecute the person who impersonated me on Facebook in violation of Facebook's Terms of Use. I just wanted Facebook to delete the imposter's account... which it did.

Anyway, there are a lot of complicated issues here. As Kerr observes, way too many things are swept into this vague law, and the effects have been limited because federal prosecutors tend not to charge misdemeanors. There is, however, some core behavior that ought to be prosecuted as a felony, and Congress ought to specify what it is and not simply trust prosecutors — incentivized by the new felony status of internet misbehavior — to select appropriate targets.

26 comments:

Shanna said...

So all those people who make up a twitter account as, for example, the aligator who excaped from the zoo, are going to be felons?

Yeah, that's dumb.

MarkG said...

The Justice Department has the same primary goal as everyone else in government: increase the mission, the budget, and their power. That's just what people do as long as they can get away with it.

ndspinelli said...

It's funny from my perspective as a PI. When cell phones became the primary telephone, and caller ID on vitually all phones, pretext work via telephone became quite difficult. But that was mitigated by the advent of social media. I doubt most of you know just how easy it is to use techniques to gather info. Some of you certainly do.

There does need to be some sanity restored. However, like surveillance cameras being virtually everywhere, the genie is not only out of the bottle..he's watching all of us!

Insufficiently Sensitive said...

But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

This particular 'Justice' department is all too ready to abuse such broad-brush opportunities to punish selected political enemies. When do we get a Congress which has the will and ability to write explicit legislation with clear limits?

Roman said...

Most 'social media' sites should be treated like 2 AM 'beer goggles', with a grain of salt the size of a 10 lb salt lick. To make a felony of using fake names online is silly. Why is it against the law to lie to Congress, yet Congress hardly ever tells the complete truth? Do as I say, not as I do.

Paddy O said...

When workplaces use social media investigations to assess job candidates, as they do nowadays, impersonating someone online can cause just as many problems as other forms of identity theft.

Especially when there is malicious intent involved.

So, while I'm not a fan of government intrusion, this seems to be one of those cases where the government actually is helping preserve our social order.

phx said...

Felony treatment for some unauthorized access seems appropriate.

"breaches of workplace computer-use policies" is overreach for most of the computer-use policies I've seen. Are they talking about government workplace? I can't even figure how breaches of workplace C-U policies got in the discussion.

Not that I RTFA.

Almost Ali said...

I think I'm in trouble.

madAsHell said...

Wow!

I read the comments from the 2007 episode. At first I thought the impersonator was flirting with you, and then it became obvious that he(?) was just a sick dude.

You've become a public figure. Tell Sarah Palin to move over, and make room for one more!

w/v: ophya - Maybe you'll be invited to the Ophya show

E.M. Davis said...

Wait a minute ... whatever happened to Jeremy?

EDH said...

Three Felonies a Day: How the Feds Target the Innocent

Almost Ali said...

On the other hand, holding copyrights and/or being published under various nom de plumes - would seem to hold precedent.

Still, the creation of these grab-bags signals the end of a legitimate government.

Fred4Pres said...

Faking your name (alone) should not be a crime, but faking your name to do a crime should be a factor to be considered (be it for fraud, to libel or harm someone, etc.).

MarkG said...

I bet Garage Mahal isn't his real name. I'm calling the cops.

Almost Ali said...

Virtually every behavior is illegal somewhere.

edutcher said...

The problem, of course, is that someone could do or say something in your name that would damage you, but just putting up an account under a spurious name shouldn't be a felony.

Although...

it would put almost all the Lefty commenters here in stir for 10 to 20, so it may not be a totally bad thing, at that.

Just A Grunt said...

So impersonating a member of the military for personal, financial, or political gain is protected under the First Amendment but claiming to be Eddie Munster on Facebook would be a felony?

ken in sc said...

At least one court has already ruled that lying is protected speech under the first amendment. It was in a case of Stolen Honor about a guy who claimed to be a decorated veteran during a political race—but wasn’t. He was elected. The case against him was dismissed.

Almost Ali said...

Facebook is a felony. Certainly of sorts.

My one suggestion regarding FB is to not reveal one true thing about yourself. Not even your name, rank, or serial number.

Unless you're famous.

Which reminds me, yesterday there was an alleged phone-hack launched against Scarlett Johansson wherein certain "self-portraits" were surreptitiously posted on the Internet. And of course the trend lines went off the charts - as even I joined in the search for the [2] nude photos - and found them rather quickly via Twitter. One of which genuinely qualified as art. Highly intentioned art.

Still, with a face like hers, a naked body is simply a bonus.

And while I'm off on the subject, did you ever wonder what it would be like sitting across the breakfast table from a Scarlett Johansson every morning? Or better, waking up with someone who looks even better without the makeup.

CEO-MMP said...

My GOD Althouse, are you ever NOT a victim?

Skandia Recluse said...

Does this mean, then, that all those Hollywood Actors and Actresses would have to preform under their real name and not a 'screen name'?

Almost Ali said...

Truth is, I was once married to a Scarlett Johansson - just as beautiful, and enhanced by love.

But I seldom got the opportunity to wake up with her. Because she was an early riser, very early - up with the cows and milk machines. Jeez, it used to drive me crazy. Because men tend to wake up primed and ready for action - not a half-empty bed.

And she wasn't down at the supermarket waiting for it to open just to annoy the hell out of me. She was just a high-energy, early riser. Which turned out to be the fatal flaw in our marriage.

Years later she wrote to me from Utah - she was shacking up with a forest ranger. Really, in the middle of the woods, up on some mountain.

Next it was a back-to-nature commune in California, with only a small generator to run the office. And a communal sweat lodge specifically created for Scarlett Johansson. Now, why didn't "I" think of that!

Which just goes to show you, if it isn't one thing, it's another. And even now I still can't sleep with one eye open. Or sense a feather lifting off the mattress.

Bryan C said...

So, essentially, every ridiculous terms-of-service agreement that we've clicked through and never read would now have the status of a federal felony. But this is necessary, because otherwise someone might lie or be mean to someone else.

But don't worry. They won't use the law against you. They like you. And you like them, too. Right? Yes? I thought so!

I certainly see why prosecutors and law enforcement would like this kind of sweeping power to manufacture felonies at will. I also understand why insane ax murderers would like free axe- sharpening services. I don't see any reason why we should humor either request.

MadisonMan said...

The underlying assumption in Kerr's question is that what you see on the internet is based in fact.

It's lunacy to follow that. Never believe a thing you read on the internet.

jimspice said...

"I was a victim..."

Did you yell "Police, police?"

JAL said...

No.