Terms of Ensnarement: DoJ proposes a very bad idea

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A lot of people probably missed this story on npr.org yesterday.  It’s worth noticing — it may be the one thing that can bring the diverse readership of this site together, in a prolonged scream of anguish:

Today, a subcommittee of the Committee On The Judiciary heard some fascinating testimony about the Computer Fraud and Abuse Act (CFAA). (We know what that sounds like, but bear with us.)

The hearing, titled “Cyber Security: Protecting America’s New Frontier,” really focused on big cyber threats to the country’s infrastructure, but there was another juicier question that came out of the hearing: The way the Justice Department wants to interpret a current law, lying on the Internet would amount to a crime.
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In English? When you sign up for a Web service, a dating one or even to attain the ability to comment on NPR.org, you usually agree to a long terms of service that we bet most people don’t even read. The way the DOJ wants the law interpreted means breaking any of those terms would constitute a crime.

This is, I hang my head and say, from a Democratic Department of Justice.  This is the fever dreams of this site’s conservative libertarian Republican contingent come true.  This attempted imposition of a quasi-police state to make violation of a Terms of Service agreement a federal crime — do you even know what’s in the Terms of Services for products you use? — could hamstring Democrats in 2012.  I realize that some of you anti-Democrats out there may be smiling at that, but even you can’t afford such a victory.  We have to give our leaders a sharp wake-up call, right now.

A story from Digital Trends is now making the rounds on Yahoo News:

The US Department of Justice wants to make it a federal crime to violate the “terms of service” of any website, reports Declan McCullagh at CNet. According to this interpretation, breaching the terms of service of websites — which can be done by simply using a fake name on Facebook, lying about your weight on a dating site, or using Google if you’re under the age of 18 — could make you a criminal.

According to a leaked statement that Richard Downing, the DoJ’s deputy computer crime chief, will reportedly deliver to Congress on Wednesday, the DoJ will argue that the Computer Fraud and Abuse Act (CFAA) — an amendment to the Counterfeit Access Device and Abuse Act generally used to prosecute hacking and other serious cyber-crimes, and which went into effect way back in 1986 — must give prosecutors the ability to charge people “based upon a violation of terms of service or similar contractual agreement with an employer or provider.”

According to Downing, the expansion of this law is necessary for law enforcement to prosecute individuals for identity theft, privacy invasion or the misuse of government databases, among other infractions. Limiting “prosecutions based upon a violation of terms of service… would make it difficult or impossible to deter and address serious insider threats through prosecution,” Downing is expected to say.

Just to reiterate, in case you didn’t catch that sly turn of legalese, the DoJ is saying that not allowing them to prosecute people for violating websites’ terms of service would make it “more difficult or impossible” to scare people with the threat of prosecution. Yay, America!

This, combined with recent STOP IP proposal by Sen. Pat Leahy to make heretofore innocent “fair use” of copyrighted material a federal crime, and to a lesser extent with Sen. Amy Klobuchar’s overbroad plan to piss off Justin Bieber with legislation that would penalize profiting from illegal streaming, leave me wondering whether the Democratic party has been infiltrated by Republican staffers or whether its party leaders are simply so out of touch that only a treatment of people showing up to their Washington and district offices every moment of every day may catch their attention.

I’ll put it as simply as I can to the exalted Democrats:

To the extent that the concern here (as argued) is “identity theft,” there are plenty of laws that should be able to cover it — such as ones involving “theft” and “fraud.”  For a 17-year-old to use Facebook (violating its Terms of Service) is between that person and Facebook.  “Terms of Service” agreements are already a joke that few ever read, let alone understand; do we really want to put the weight of our party behind the idea that if you don’t understand (and therefore fail to follow) an Internet ToS, or make what most would now consider an innocent misrepresentation in signing up for a service, you could be found to be breaking federal law?  BREAKING FEDERAL LAW?

The seriousness of the term “federal crime” cannot be diluted into nothingness.  That’s the parody of our party, not — I will argue with unease for the moment — the reality.  If Democrats embrace that parody, they turn the Republican Party, incredibly, into the friends of the common person.  (Fortunately for us, Republicans will blow it.)

For this to be happening at the same time that the Occupy movement is dealing with issues of accountability — that so many things that ought to be federal crimes, that really destroy lives, go unpunished — simply worsens the problem.

I don’t know who is coming up with these ideas, but I’m pretty sure that they must be in Washington bubble.  If so, it is for the likes of us to come along with pins — and pop, pop, pop.  It’s time for us to remind our exalted leaders that the Internet — like the economy — is not for someone else, but for us.


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)