Terms of Service Criminally Actionable?

Wired reports that:

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.

Apparently, the terms of service were violated in this case by registering under a false name – a pretty minor offense that many of us, seeking anonymity, commit regularly. At most, such a violation may be grounds for banning the user from the site. (Perhaps in cases of terms of use violations that are extremely harmful to the website, the site should be able to sue for breach of contract in civil court.) But instead, the feds are trying to prosecute the defendant criminally.

The article quotes Jennifer Granick of the Electronic Frontier Foundation as saying, “This is a novel and extreme reading of what [the law] prohibits… It’s probably an unconstitutional reading of the statue.” Criminal law is normally reserved for actions prohibited by the state and is not used to enforce private contracts.

But courts are making the line between civil law and criminal law fuzzier. In Kansas v. Hendricks (1997), the Supreme Court upheld “civil commitment” for sex offenders after they had already completed their jail time. The Court said that the law was not really ex post facto punishment in addition to the criminals’ sentence, because it was a civil law, not a criminal one. In effect, the state could label any punishment – including indefinite sentencing to a psychiatric prison – as “civil” and get out of any pesky rules about double jeopardy or punishment in excess of sentence. Now, the government is turning the labels around again and applying the term “criminal” to anyone who violates a provision of something as minor as a website’s terms of service.