

Anti-Hacking Law Criminalizes Most Computer Users, Former Prosecutor Says - zeratul
http://www.wired.com/threatlevel/2011/11/anti-hacking-law-too-broad/

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jerfelix
The article says: "In the Justice Department’s view, the CFAA criminalizes
conduct as innocuous as using a fake name on Facebook..."

Facebook's Terms say: "You will not provide any false personal information on
Facebook..."

But Facebook's registration is VERY unclear. They ask for an entry for "First
Name" (not specifying whose), an entry for "Last Name" (again, not specifying
whose), an entry for "Your Email" (specifying an article "Your", so presumably
if they wanted my first name or last name, they would have specified "YOUR
name") and an entry for "I am [Select Sex:]" (presumably asking me to predict
the web developer's gender (?). If they wanted the registrant's gender, they
should have said "YOU ARE [Select Sex:]", or at least make sure that the email
question and the gender question were consistent. The Terms refer to the user
as "You" and not "I".

Given that they have first person, second person, and no person specified on
their registration page, any lawyer worth his $250/hour should be able to
argue your way out of criminal charges (or even breach of contract) in using a
fake name on Facebook.

A reasonable argument would be that the first time I went to Facebook, I
wanted to search for a friend, so I put in HIS first name and last name,
created an account, and now I am stuck with it.

Unfortunately, Facebook's very own terms restrict me from correcting this
error (due to their lack of clarity and inconsistencies on the home page), as
the terms say "You will not create more than one personal profile."

~~~
dotBen
This is why HN - as awesome as it otherwise is - is awful for legal advice.

 _A reasonable argument would be that the first time I went to Facebook, I
wanted to search for a friend, so I put in HIS first name and last name,
created an account, and now I am stuck with it._

But unless you are a complete moron you would have known you were registering
a new account and not doing a search. So now you've just lied under oath in
Federal Court.

A good prosecutor would reason for the jury that given that you "work in
computers" you would have known the difference between registration and site
search - and so now you're also being charged with 18 USC §1621 [Federal
Perjury] for making a false declaration and you're looking at up to an extra 5
years in prison tacked on to whatever the judge is going to hand you at the
end of this. To make matters worse the prosecutor is appealing for all of the
evidence you gave for your defense to be ignored given that you've
demonstrated you are a bad witness.

Well done.

~~~
jerfelix
I agree that HN shouldn't be used for legal advice.

I was actually involved in a case where the registration page, terms and usage
policy were confusing and inconsistent in a similar fashion (not exactly, but
close), and as I recall, the judge agreed with that part of the complaint.

I am not a lawyer, but I believe the legal basis for that portion of the
decision was that the terms are being defined by the corporation (presumably
with reasonable resources to make sure they do it right), and being presented
to the user (presumably with significantly less resources) with little option
for discussion - you either agree or go away. And therefore the judge felt
that it was incumbent on the the website to get it right, since they had
designed the registration and defined the terms. The benefit of the doubt was
given to the user.

I would never advocate lying under oath (as you suggested). Presenting an
argument is different than lying under oath.

Your experience may be different, but that was my _firsthand_ experience.

~~~
fennecfoxen
Yeah - depending on the specifics of your case, as a defendant you may be able
to do a "defense in depth" where you argue multiple, possibly-contradictory
explanations why you might not be guilty, without actually committing to one
of them as actually true.

Presumption of innocence is awesome.

------
einhverfr
Just some interesting background. Orin Kerr is not only a former prosecutor.
He is now a law professor at George Washington school of law, has blogged for
a long time about the issues of the CFAA and other legal issues at the Volokh
Conspiracy (<http://www.volokh.com>). His thoughts are always worth reading.

He donated a lot of pro bono time to Lori Drew's legal defence because he felt
that if violating a web site's terms of service could count as a CFAA
violation that this raised fundamental due process problems, and he's also
gotten a fair bit of respect as an expert in the area of computer crime law
with his law review articles and even blog posts being cited by courts in
these areas.

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pavel_lishin
> The government argued that violating MySpace’s terms of service was the
> legal equivalent of computer hacking.

> a judge subsequently threw out the verdict on grounds that the CFAA was
> constitutionally vague and that upholding the verdict would set a precedent
> for anyone who breaches similar contracts to be criminally prosecuted.

What happens when a judge with less sense sets a terrible precedent?

~~~
tedunangst
You appeal.

~~~
JoshTriplett
That only works when 1) you have enough money for a lengthy appeals process,
2) the appellate court agrees to hear your case, and 3a) the appellate court
contains judges with more sense or 3b) you can repeat starting from 1.

3b stops working when you hit the Supreme Court, which frequently fails both 2
and 3a.

~~~
tedunangst
I eagerly await the justice system that obsoletes appeals by always being
perfect the first time....

------
tedunangst
Headline is misleading, or at least I got the wrong impression. I thought it
was talking about a new law, but it's talking about the existing law. At the
end it even mentions an amendment that specifically excludes TOS violations.

Headline makes it sound like bad news, but I'd say the article is actually
good news.

------
mindslight
It'd be nicer if he had realized the fallacies of the prevailing 'legal'
environment _before_ he signed up to be a prosecutor (specifically, widespread
laws make everyone guilty of something, so enforcement is really more about
your place in society). Instead he was a cog in the system long enough to
unjustly ruin some people's lives, then suddenly gets some critical thinking
skills. Is it really that hard to think through your actions beforehand?

~~~
JadeNB
Are all prosecutions unjust? Do you know his record? How do you know he ruined
people's lives?

If someone is ignorant of the flaws in the system before he joins it, but
dedicates himself to righting them once he discovers them, should that then
expose him to this sort of scorn?

~~~
mindslight
Prosecutions are conducted under the guise of due process, but are anything
but. Certainly many who are prosecuted are guilty, but chances are there was
at least one innocent person under the steamroller that this guy was helping
drive.

For one, he gets the scorn because all the people who groomed him into
thinking he was "building a better world" aren't in the spotlight. If he's
truly repetant, he can reflect upon how they misled him and adjust his
personal opinion accordingly.

But really, he's pointing out one law lacking due process like it's the
exception. It's not. The whole system has cargo-culted the idea of justice,
going through the motions so outsiders think there's intelligence and justice
behind it.

------
maeon3
Reminds me of "the right to read" by Richard Stallman, it is a preview of a
world where the right to read is regulated, throttled and taxed.

<http://www.gnu.org/philosophy/right-to-read.html>

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gcb
well.. just like any other law.

everyone is guilty all the time. or have you never ever checked an sms while
in a red light?

"to my friends everything. to my enemies, the law!"

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brokentone
My favorite part of the article by far is the uncaptioned action shot of the
man drinking apple juice.

