The DOJ is going to Congress today to argue that Web sites’ terms of service policies should be enforceable by law, according to CNet. For that purpose, the department seeks an expansion of the Computer Fraud and Abuse Act, a 25-year-old law that mainly deals with hacking, password trafficking, and threatening to damage a computer.
By outlawing terms of service violations, the department would have an easier time prosecuting cyberbullies such as Lori Drew, a 49-year-old woman who involved in a case where a 13-year-old girl committed suicide after interacting with a fake MySpace profile that Drew was involved with. Prosecutors got a conviction against Drew in 2008 for violating the Computer Fraud and Abuse Act, but the case was thrown out by a U.S. District Court judge.
“It basically leaves it up to a website owner to determine what is a crime,” U.S. District Judge George Wu said of his verdict in 2009. “And therefore it criminalizes what would be a breach of contract.”
That’s exactly what the Department of Justice is trying to do now, through Congress.
Is the Solution Too Broad?
The department’s heart is in the right place, of course, but as groups like the American Civil Liberties Union and the Electronic Frontier Foundation pointed out in an August 2011 letter to the Judiciary Committee, outlawing terms of service violations is an overly broad way to solve the problem. In addition to snaring cyberbullies, it would also criminalize harmless fibs such as using a fake name on Facebook to protect privacy. It would also force people to digest needlessly long terms of service policies for online services, lest they inadvertently break the law.
Some U.S. states, including Drew’s home state of Missouri, have passed their own cyberbullying laws. Attempts at federal cyberbullying legislation have gone nowhere, which may explain why the Department of Justice is trying a new strategy. But I have a feeling a broad law to make terms of service violations illegal would only introduce more problems than it solves.
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