EFF/CDT Brief in MySpace Case: Terms of Service not Crimes

The Electronic Frontier Foundation, the Center for Democracy and Technology, Public Citizen, and 14 law professors have jointly submitted an amicus brief in the MySpace harassment case. For those unfamiliar with the case, a 49-year-old woman created a fake MySpace profile and teased a teenager, who then committed suicide. Now, federal prosecutors are attempting to sue her for violating MySpace’s terms of service.

I have previously commented on how this case contributes to the disturbing trend of blurring the line between criminal and civil law. And my colleague, Christine Hall, has written on governments’ efforts to control social networking sites. But the EFF/CDT brief makes another excellent point:

The Government’s novel and unprecedented response to what everyone recognizes as a tragic situation would create a reading of the CFAA that has dangerous ramifications far beyond the facts here. Terms of service include prohibitions both trivial and profound. As detailed in examples below, the Government’s theory would attach criminal penalties to minors under the age of 18 who use the Google search engine, as well as to many individuals who legitimately exercise their First Amendment rights to speak anonymously online. This effort to stretch the computer crime law in order to punish Defendant Drew for Miss Meier’s death would convert the millions of internet-using Americans who disregard the terms of service associated with online services into federal criminals.

Making terms of service criminally actionable will have stifling effects on free expression online immediately. By overpunishing minor and extremely common violations of minor clauses in quasi-contracts, the government is deterring the large variety of often-anonymous speech acts that have made the internet a wonderful forum for ideas and information to spread. The court should dismiss the case and set a precedent that violations of terms of service should not be prosecuted like robbery and murder.