As of this writing, the US Department of Justice is making its case to Congress for expanding the Computer Fraud and Abuse Act (CFAA) — initiated in the ’80s primarily to prosecute identity-thieving and security-endangering hackers — to include pretty much all instances of being less than truthful online. If successful, such a broad interpretation of the law could apply to:
- Lying about your weight in an online dating profile.
- Faking your name on Facebook (ask Salman Rushdie how he feels about that one).
- Tweeting that your favorite color is red when it’s actually blue.
- Violating a website’s terms of service (you always read the ToS in their entirety, right?).
- Emailing your Words with Friends partner that you win every game because you’re really lucky and clever when you’re just using some program that gives you the best words to play for maximum points.
- Using your Google+ account to tell everyone that you love one [insert sports team here] when you really support [insert some other sports team here].
- Posting to your blog that you once climbed Mount Everest wearing nothing but swim trunks and flip-flops.
Extreme? You bet. (Everyone knows that it’s impossible to climb Mount Everest without wearing at least a hat in addition to the swim trunks and flip-flops.) And we all know that it’s unlikely for most of the above fallacies to be prosecuted in any courts of law. Then again, facts sometimes trump fiction in the “I can’t believe that just happened” department.
Now, the Department of Justice is trying to make those terms less plain and quite a bit more specific. And that’s where things can get pretty dangerous for all of us.
While I know that the crew here at LockerGnome is unanimous in abhorring online bullying in all of its poisonous forms, I think most of us draw the line at bloating a law that was instituted for a very specific reason and having it turn every possible instance of computer-based mischief into a potential felony. Lori Drew was a 49-year-old mom who should have known better; perhaps the shame and regret she doubtless feels for the way things turned out are justice enough.
Had Judge Wu gone with public sentiment and “thrown the book” at her (as they say in Mayberry), it would have been like applying chemotherapy to a splinter-stricken thumb instead of using a pair of tweezers to greater effect. He wisely avoided setting a dangerous precedent by subscribing to the definition of the law by its intentions and not how it could be twisted to suit the prosecution’s purposes. Many may deride the judge’s decision as being too soft on someone they see as a wicked rabble-rouser whose reckless actions should condemn her to fiery damnation in the Devil’s doghouse forever and always. But caving in to popular opinion would have made plenty of room for all of us right next to her in that eternally dismal doghouse.
Is Lori Drew a felon? Not according to the CFAA as it stands at the time of this writing. Is Lori Drew an idiot? On that count, I would judge her guilty. Then again, I don’t wear the fancy robes and get paid the big bucks to preside over such trials or tribulations — and that’s how I like it. But should her guilt of felony or idiocy drag the rest of us down? No, I say! No, no, no! I have to agree with Twitter user FoodieEsq, who says: “CFAA expansion & SOPA on the Hill’s agenda today. In some things, gridlock is good: an anti-Internet, anti-free expression Congress.”
For those who want a detailed look at just how grossly inflated the provisions of the CFAA have gotten over the years, the testimony of former Justice Department computer crime prosecutor Orin Kerr is an intriguing read. Seriously. I confess to being generally bored by legal proceedings, but there’s some fun stuff in here. Kerr’s rebuttal to the absurdity of the far-reaching definitions of what constitutes the type of computers to which this law applies is especially amusing (and, simultaneously, infuriating):
“Given that many everyday items include electronic data processors, the definition might plausibly include everything from many children’s toys to some of today’s toasters and coffeemakers.”
Kerr is obviously on the side of those of us who think the CFAA needs to be scaled back into a less formidable beast rather than, as the Department of Justice suggests, ramped up to be even… more beastly. Thankfully, he’s not the only one who’s spoken up for the cause of reason. In a letter to the Senate jointly authored by the Electronic Frontier Foundation, the ACLU, Americans for Tax Reform, and FreedomWorks, the absurdity of the whole matter is further illustrated by drawing parallels to similar, real-world situations that could never be enforced. Here’s just one example: “If a person assumes a fictitious identity at a party, there is no federal crime. Yet if they assume that same identity on a social network that prohibits pseudonyms, there may again be a CFAA violation. This is a gross misuse of the law.”
By the time you read this, this entire affair may either be ruled unconstitutional (along with, I hope, the equally evil SOPA [Stop Online Piracy Act]), or drawn up as an additionally restricting law of the land that will cause more confusion and congestion in an already overwhelmingly bureaucratic nightmare of a legal system. However things turn out, I advise you to be really careful about how you use those toasters and coffeemakers, comrades.