Go to Jail for Online Anonymity: The End of Internet Freedom?

by on September 22, 2008 · 19 comments

Forget net neutrality and the growing Googleplex. The real threat to Internet freedom comes from plain old criminal law.

In three weeks time, Missouri housewife Lori Drew will face trial for entering false personal details when she signed up for a MySpace account. Her indictment alone, whether or not she is convicted, should frighten anyone who’s ever filled out a form online.

The case, which captured the tabloid media when it broke last year, turns on unusual facts. Drew, posting as a teenage boy, created the MySpace account to probe why a neighbor’s daughter, Megan Meier, had broken off a friendship with her own daughter. She gave a few others access to the account, and things quickly spiraled out of control. Before long, “Josh Evans” (the fictional teen) and Meier were an online couple, and soon after that, they were hurling insults at one another on public message boards.

Meier, already suffering from depression, was devastated by Josh’s turnabout. A final private message from the Evans account–”The world would be a better place without you”–pushed her over the edge. Twenty minutes after receiving it, Meier hung herself in her closet.

Even though she was not responsible for the worst of the messages (according to a prosecutor who investigated the case but declined to file charged), Lori Drew mislead an emotionally troubled youth, and that was surely wrong.

But it’s more problematic to say that it’s a crime.

The theory of the prosecutor behind this case would make all Internet users criminals. It goes like this: Drew lied when she created the “Josh Evans” account. That was a violation of MySpace’s terms of service (those slabs of legalese that nobody reads before checking the box on a sign-up form). And by violating those terms, she accessed MySpace without authorization. “Unauthorized access” is a felony under a federal statute, the Computer Fraud and Abuse Act of 1986. The statute was meant to target hacking, but its loose language leaves the door open for a much broader reading.

(And as I discuss in a National Review Online column today, that’s the same law that could be used to prosecute the person who hacked into Gov. Sarah Palin’s email account.)

To put it succinctly: Violate any website’s terms of service, and you could face five years’ jailtime. Include a conspiracy charge (Drew faces several), and the maximum sentence doubles.

As the Electronic Frontier Foundation spells out in a brief in the case, that formula spells an end to online anonymity. Using a fake name or making up any detail when creating an email account or anything else could be grounds for prosecution.

Even innocent exaggeration could be targeted. Adding an inch or two to your height is a violation of the terms of service on Match.com and most dating sites.

But that’s not the scariest part. This threat isn’t just about one law, twisted into absurd form by an aggressive prosecutor, but thousands of them. After decades of fast growth, there are at least 4,450 separate criminal offenses in federal laws, and perhaps tens of thousands more in regulations. And then there’s state law: Each state, to begin with, has its own copy of the federal anti-hacking statute Lori Drew is accussed of violating.

I discuss this issue, in the context of the Drew case, at some length in a recent paper. The problem, in brief, is this: Public pressure has led legislators to criminalize so much behavior in vague and broad statutes that probably all Americans are criminals under some dumb law. When there’s a tragedy–like the death of Megan Meier–prosecutions will follow, whether or not anyone had reason to believe that what went on was actually against the law.

Fixing this one statute won’t solve the problem.

Right now, the only thing that safeguards our online freedoms–anonymity, free speech, the right to access speech, and so on–is prosecutorial discretion that could be revoked for any one of us at any time for any reason. This isn’t a hypothetical–it’s happening today.

  • MikeRT

    One of the biggest false assumptions we have today is that we are so free today, compared to our ancestors. While I'm not an advocate of returning to the Mosaic Law of the Old Testament, it's interesting to note how simple and straight forward the law books of the Torah are compared to the USC or most state legal codes. Most people could live their lives without ever risking running afoul of the Mosaic Law, but as you point out, in modern “free” America, the average American is an unconvicted felon. More to the point, almost everyone today is one interested prosecutor away from losing their general liberty and permanently sacrificing their right to vote and bear arms. It is nothing short of a law-and-order nightmare.

    I would like to think that any competent federal judge wouldn't give the time of day to this argument. It certainly expands the scope of the law well beyond Congress' obvious intention of accessing a computer without any pretense of authorization or knowledge on the part of the hacker. Congress needs to revisit many of these laws and make them more nuanced.

  • Vettig Svensson

    That is just scary. Though its always the same, someone kills themself and everyone needs someone to blame. What about the parents? The kid must have had other problems and this was just the thing to push her over the edge.

  • http://enigmafoundry.wordpress.com eee_eff

    This case isn't about internet anonymity, except very peripherially. It's really about harrasment. Yes, the anonymity enabled the harrassment–but, read (some) of the facts of this case, it is an exceptional case, that shouldn't be understood as creating any wide ranging precedents.

    I believe it was criminal, the extent to which the harrassment was taken.

    Much less is now criminal under the Animal Enterprise Terrorism bill.

    Where are all the libertarians complaining about that, please tell me???

  • James Williams

    Ultimately, I disagree with the premise that anonymity protects our freedom. Generally being anonymous only allows a person to evade the consequences of their actions. Most people can do anything in “real” life that they would choose to do online but they don't because they don't because there would be repercussions they wouldn't want to face. Furthermore, part of the general problem with this issue is that the culture doesn't see lying as a big deal, but it was a big enough deal to God to include it in the ten commandments.

  • James Williams

    Actually on second thought, I take that back. Anonymity does have it's uses if people are convinced that they are doing what's right and the powers that be are disallowing them from doing so. For example, sneaking Bibles into a foreign country or a witness protection program. However, I would be inclined to contend that most uses of anonymity probably don't fall under that category. Most of the time people are just viewing information that others might find aberrant, offensive, or illegal. Occasionally things take a turn for the worst such as has happened in this case.

  • James Williams

    Also, I do recognize that there are certain privacy issues such as those researching their own abuse experiences or researching investment strategies.

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