Spitzer Was A Piker

We pointed out some time ago that Gov. Spitzer won the fame which got him elected Governor of New York by getting publicity for abusing his prosecutorial powers.  We pointed out that all citizens are at risk when the concept of justice is abandoned in favor of pursuing personal gain.  There are so many laws out there that nobody can be sure of following them all; if a politician or prosecutor takes it into his head to destroy someone, it's relatively easy no matter their personal wealth.

It turns out that Mr. Spitzer was a piker.  He got elected governor through prosecutorial abuse, but what he did is nothing compared to the latest federal power grab which was described in the New York Times and in other publications.

In a story "Experts Say MySpace Suicide Indictment Sets 'Scary' Legal Precedent," Wired says:

In their eagerness to visit justice on a 49-year-old woman involved in the Megan Meier MySpace suicide tragedy, federal prosecutors in Los Angeles are resorting to a novel and dangerous interpretation of a decades-old computer crime law -- potentially making a felon out of anybody who violates the terms of service of any website, experts say.

Lori Drew has a daughter, who had had a falling-out with 13-year-old Megan Meier.  Rather than let the children iron things out between them, Ms. Drew decided to wreak a terrible vengeance on poor Megan.

She set up a fake MySpace account in the name of "Josh Evans" though which she flirted with the unsuspecting girl to gain her trust; then, once Megan's heart was apparently involved, the meanness began.  The fake Josh eventually told Megan that the world would be better off without her.  Megan, who suffered from depression, proceeded to hang herself in her bedroom.

The blogosphere decided that Ms. Drew was responsible for Megan's death, and Ms. Drew she had been harassed by many people both online and offline.  The state prosecutor investigated, but decided that there was no law under which charges could be filed.

Enter the feds.  Building a legal case against her was difficult because there is no law against cyberbullying.  If anyone wanted to write such a law, how would they define it?  Wired explains what happened:

On Thursday, the U.S. Attorney's Office in Los Angeles unveiled its solution by charging Drew with "unauthorized access" to MySpace's computers, for allegedly violating the site's terms of service.

MySpace's user agreement requires registrants, among other things, to provide factual information about themselves and to refrain from soliciting personal information from minors or using information obtained from MySpace services to harass or harm other people. By allegedly violating that click-to-agree contract, Drew committed the same crime as any hacker.

Web site EULAs routinely use vague words like "harass."  Harassment is clearly in the eye of the beholder.  It's common for a EULA to have words which give the writer of the EULA complete discretion in determining what's a violation.

Our own Scragged website is no different, as witness this expansive quote from our EULA: "Licensor reserves all rights not expressly granted to you in this EULA."  This is here for a good reason, as we do not wish to be sued; but the last thing Scragged wants would be having the feds get involved in enforcing our EULA against somebody else.

The basic purpose of the MySpace EULA is to give MySpace the right to get rid of any user who, in their sole judgment, harms their business.  That's why the EULA gives them the right to decide who's guilty of an infraction and who's not.

Do we really want the feds to bring criminal charges based on such vague and one-sided agreements?  Parenthetically, all of the bloggers who harassed Ms. Drew in retaliation for being unkind to Megan violated the MySpace EULA every bit as much as she did.  Wired continued:

That sets a potentially troubling precedent, given that terms-of-service agreements sometimes contain onerous provisions, and are rarely read by users.  "Empowering terms of use to be key pieces of evidence in criminal matters -- when terms of use are generally thought of by the people who are entering into them as purely contract or civil matters -- is something that should be done carefully," says Andrea Matwyshyn, law professor at the University of Pennsylvania's Wharton Business School. "I think you're going to have strong disagreement as to whether this is an advisable course to take." [emphasis added]

The bureaucrats don't care a whit whether it's advisable, the only thing that matters to them is whether they can get away with it.  Expanding their power by changing a violation of a web site's End User License Agreement (EULA) from a civil matter over which there's no federal jurisdiction to a criminal matter gives them many more cases to prosecute.

Imagine how many lawyers they'll have to hire to chase everybody who posts incorrect information on a web site!  What a boon for our underemployed lawyers!  Even better, consider the chill this will cast on the freedom of speech that everyone assumes applies to the Internet!

There's an old saying, "Hard cases make bad law."  Megan's suicide is certainly a tragedy, and Ms. Drew's childishly vengeful spirit is disgraceful, but goading a person to the point where they commit suicide is not a crime - even if Ms. Drew were the only one doing so, which she emphatically wasn't.  That's one reason the state prosecutor decided she had not done anything he could prosecute.  She did, however, violate the MySpace terms of agreement.

The feds are gleefully grabbing this chance to expand their jurisdiction.  The bloggers who feel that Ms. Drew ought to suffer for her actions are probably glad it's become a federal case, but that's incredibly short-sighted.  Even MySpace has been blinded by the emotions of the situation:

In a statement, MySpace says it supports the prosecution. "MySpace does not tolerate cyberbullying and is cooperating fully with the U.S. attorney in this matter," a company spokeswoman said. The company declined to say what the precedent would mean for otherwise innocent users who, for example, misstate their age or ZIP code when setting up their MySpace profiles. [emphasis added]

History shows that it's a really bad idea for a business to encourage the feds to get involved in their affairs; government "help" contributed to Detroit's decline.  How idiotic can MySpace get?  Do they really want their customers to be subject to federal criminal prosecution over the finer points of their EULA?

Wired says that MySpace is "fully cooperating with the U.S. Attorney."  What that means in practical terms is that the US Attorney is trolling through gigabytes and gigabytes of data about MySpace customers.  Given the concerns about Internet harassment and seduction, this is a heaven-sent opportunity for the bureaucracy to go fishing in private data.

Google fights federal attempts to get at their data; MySpace is "fully cooperating with the U.S. Attorney."  If I had a MySpace account, never touch it again, not even to close it.

Rumor hath that our various presidential candidates have MySpace sites; one wonders if there are any threats to anyone to be found there.  Could wanting to bomb Pakistan or Iran be considered cyberbullying, do you suppose?

The Bureaucratic Agenda

Few people understand that by choosing which cases to bring before the courts, prosecutors effectively set the agenda of our overall justice system.  Prosecutors bring cases they think they can win.  In order to win a case, a prosecutor first has to get a judge to accept the case.  Getting the case accepted is a no-brainer when prosecuting a violation of long-established law.

There's always a temptation for prosecutors to bring doubtful cases just to expand their jurisdiction to cover activities which had never before been thought to be criminal acts.  If a prosecutor can win such a case, it opens up whole new vistas of opportunity to prosecute people, which is what prosecutors do.

It's no coincidence that the feds picked a case that tears at the emotions.  Nobody can prove that Megan's suicide was due to abuse of the Internet, but that won't stop the feds from claiming it was and asking a jury to Do Something about it.  The feds know that it would take an exceptionally hard-hearted jury not to convict Ms. Drew for doing poor Megan to death even if what she did falls far outside criminal law.

Judges can be as emotional as the rest of us; we've commented on a recent Maryland decision where the judges ruled utterly contrary to international treaties which have the same force as the US Constitution in order to right what they perceived as a wrong.  In so doing, they set a bad precedent with respect to the court's jurisdiction which will create much revenue for future lawyers and much harm to ordinary people.  We can't count on a judge to send the feds packing, and even if the first judge won't hear it, there's always another judge.

The feds could have prosecuted pretty much anyone for violating the MySpace EULA or some other EULA any time they wanted.  They waited, however, until they got a case that would tug at the heart.

Then they went before a grand jury in Los Angeles, home of the Ninth Circuit, even though Ms. Drew lives in O'Fallon, Mo.  Doesn't the US Attorney for Los Angeles have enough local crime to worry about without going after someone half a continent away?  Will Ms. Drew have to commute to Los Angeles to stand trial?  Where's the justice in prosecuting her in a place so far from where she lives?

The fact that the Federal courts which have jurisdiction over California are the most liberal and most expansion-minded judges in the country might have something to do with the feds bringing charges in LA.

Even if this case is thrown out, there is nothing to prevent the feds from dragging someone else before some other grand jury.  The power to prosecute is the power to destroy.  Mr. Spitzer demonstrated this over and over, but not even he claimed criminal jurisdiction over anybody who signs up to a web site.

They've Sung This Song Before

We've seen this sort of unjustified power grab before.  After 9-11, Congress was anxious to Do Something; they created the TSA to hassle travelers.  TSA doesn't provide safety, of course, but it sure created jobs for bureaucrats.  Now we have the prosecutorial side of the federal bureaucracy exploiting another tragedy to expand their influence.

The blogosphere dealt with Ms. Drew very effectively; there's no reason for the feds to get involved, but you can't expect a bureaucrat to pass up a chance at more power.