Feds: Let's Make Lying Online a Felony
Terms of service. Your site has them, has them, everybody has them. Very few of us really know or care what they say.
That's because TOS are usually written in gibberish that could make a lawyer cry. It's also because most of us have better things to do that wade through this garbage, trying to figure out what it all means.
But what if violating a TOS -- any TOS, for any reason -- made you a felon? Do I have your attention yet?
Tell a Lie, Go to Jail
That's exactly what the U.S. Department of Justice wants to do. DOJ lawyers say that under federal law, any online activity that "exceeds authorized access" is a crime. And yes, the DOJ has already used its interpretation of the law to prosecute a woman for online bullying. (The conviction was later overturned.)
Let's get more specific about exactly what this means.
In a statement to Congress obtained by CNET columnist Declan McCullagh, Richard Downing, the DOJ deputy computer crime chief, says it's acceptable to allow "prosecutions based upon a violation of terms of service of similar contractual agreement with an employer or provider."
Figuring out what constitutes a computer crime is a game that anyone can play. Your kid lies about his age to set up a Gmail account? That's a crime. Using a pseudonym on Facebook? That's a crime.
Using ad-blocking software on a site whose TOS prohibits that? You're a criminal.
Lying about your age on Match.com? That's a crime, too.
Join the Criminal Club
Groups on both the left and right of the political spectrum think the DOJ's bureaucrats have lost their minds. Legal experts say the very idea of criminalizing TOS violations is insane. The DOJ doesn't care, because it's getting what it wants -- more flexibility to wield powerful law enforcement weapons.
What better way to do that than to make everybody a criminal? Not everybody will go to jail, of course, because the idea here is to enable selective enforcement of an inherently non-selective law.
Anyone who uses the Internet for any reason should have a problem with this. So should businesses that might, in theory, benefit from putting teeth (even if they're crazy hillbilly teeth) into their TOS contracts.
Why? Because this is all about unintended consequences. Your business and your employees use the Internet, too. Do you want to worry about whether you're violating the TOS on every site you visit? Do you want to worry about not whether you broke the law today, but how many times you broke it and who might come after you for it?
There's no way to know where this would end. And that seems to be the point.
It's likely that the courts will put a stop to this idea, even if Congress doesn't. Even so, the fact that we're even having this conversation is a symptom of a legal system run amok.
