Should Lying Online Be a Federal Crime?

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.

Should Lying Online Be a Federal Crime?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.

Even when public outrage incites lynch mob mentality to deal with those who have committed acts resulting in despicable consequences, trying to broaden the interpretation of the CFAA isn’t going to do that same public any favors in the long run. Take, for instance, the case of Lori Drew. You may remember her in the news a couple of years ago as the “MySpace Mom” whose use of a fake, flirtatious MySpace personality to help her daughter retaliate against a former friend’s trash talking resulted in said former friend (age 13) committing suicide. The prosecution, led by US Attorney Thomas O’Brien, tried to invoke the CFAA and assert jurisdiction by saying that, while no local laws had been broken, Drew had violated MySpace’s terms of service by creating a bogus identity. Judge George Wu overruled the jury’s misdemeanor conviction and expressed that “by its plain terms, the Computer Fraud and Abuse Act prohibits trespass and theft, not more contractual violations of terms of use.”

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.

Article Written by

Our resident "Bob" (pictured here through the lens of photographer Jason DeFillippo) is in love with a woman who talks to animals. He has a fondness for belting out songs about seafaring and whiskey (arguably inappropriate in most social situations). He's arm-wrestled robots and won. He was born in a lighthouse on the storm-tossed shores of an island that has since been washed away and forgotten, so he's technically a citizen of nowhere. He's never killed in anger. He once underwent therapy for having an alien in his face, but he assures us that he's now feeling "much better." Fogarty also claims that he was once marooned along a tiny archipelago and survived for months using only his wits and a machete, but we find that a little hard to believe.

  • http://lance.compulsivetech.biz/ Lance Seidman

    If lying online becomes a crime, how do they expect me to be 14 year old girl from Kentucky looking for an older man to marry when I hit 15 and in the meantime show fake photos of me that I downloaded and get him aka “My Dream Guy” to buy my Wishlist items… I mean com’on, this is going to ruin me!

  • http://lance.compulsivetech.biz/ Lance Seidman

    If lying online becomes a crime, how do they expect me to be 14 year old girl from Kentucky looking for an older man to marry when I hit 15 and in the meantime show fake photos of me that I downloaded and get him aka “My Dream Guy” to buy my Wishlist items… I mean com’on, this is going to ruin me!

    • http://robertglenfogarty.com/ Robert Glen Fogarty

      Not true! They’d have to catch you first. Thank goodness you’ve covered your tracks and not left damning evidence as to your intentions online for everyone to see…

    • http://robertglenfogarty.com/ Robert Glen Fogarty

      Not true! They’d have to catch you first. Thank goodness you’ve covered your tracks and not left damning evidence as to your intentions online for everyone to see…

  • http://immadametal.tumblr.com Thomas “The Metal” McGrath

    “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.”  That is my favorite part.

  • http://immadametal.tumblr.com Thomas “The Metal” McGrath

    “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.”  That is my favorite part.

    • http://robertglenfogarty.com/ Robert Glen Fogarty

      And completely accurate! I fact checked it!

      • http://immadametal.tumblr.com Thomas “The Metal” McGrath

        Well, I guess I’ll have to disprove it myself someday.

      • http://immadametal.tumblr.com Thomas “The Metal” McGrath

        Well, I guess I’ll have to disprove it myself someday.

    • http://robertglenfogarty.com/ Robert Glen Fogarty

      And completely accurate! I fact checked it!

  • http://twitter.com/tampabaytek Cory @BayAreaTech

    How about making it a federal crime for politicians, officials, and any other “public servant” (police are ALLOWED to lie) to citizens?  They lie all the time, and for the most self-serving reasons… this is just yet another attempt to:

    A. Control content online
    B. Criminalize citizens
    C. Appease corporate media

    Elections are coming up, so expect these arseclows to do and criminalize everything and everyone possible… to hell with the lying crooks, the public should be grabbing their pitchforks.

  • http://twitter.com/tampabaytek Cory @BayAreaTech

    How about making it a federal crime for politicians, officials, and any other “public servant” (police are ALLOWED to lie) to citizens?  They lie all the time, and for the most self-serving reasons… this is just yet another attempt to:

    A. Control content online
    B. Criminalize citizens
    C. Appease corporate media

    Elections are coming up, so expect these arseclows to do and criminalize everything and everyone possible… to hell with the lying crooks, the public should be grabbing their pitchforks.

    • http://pulse.yahoo.com/_N6OQITYG5QN57CTPO5XSOFVEXM Jim

      Got to agree with your  comment,  I feel that is more important that worrying about what someone has said online.  

      Let’s face it,  if you sell something and someone mis-reads the description,  for them, would that be enough to say that you lied.

      I know of a few people that are regular sellers on eBay that would be under a life sentence under the California Three Strikes law if lying online was a crime while I know another person that sells online that was told by a customer that he was lying about a description because he didn’t tell them it was new even though it was mentioned multiple times.

      As for lying online it is just as prevalent as lying in everyday life and it’s not illegal yet to lie.

    • http://pulse.yahoo.com/_N6OQITYG5QN57CTPO5XSOFVEXM Jim

      Got to agree with your  comment,  I feel that is more important that worrying about what someone has said online.  

      Let’s face it,  if you sell something and someone mis-reads the description,  for them, would that be enough to say that you lied.

      I know of a few people that are regular sellers on eBay that would be under a life sentence under the California Three Strikes law if lying online was a crime while I know another person that sells online that was told by a customer that he was lying about a description because he didn’t tell them it was new even though it was mentioned multiple times.

      As for lying online it is just as prevalent as lying in everyday life and it’s not illegal yet to lie.

    • http://robertglenfogarty.com/ Robert Glen Fogarty

      Well, at least they haven’t outlawed voting. (Yet!)

    • http://robertglenfogarty.com/ Robert Glen Fogarty

      Well, at least they haven’t outlawed voting. (Yet!)

  • http://pulse.yahoo.com/_N6OQITYG5QN57CTPO5XSOFVEXM Jim

    The cnet story along the same lines

    http://news.cnet.com/8301-31921_3-57324779-281/doj-lying-on-match.com-needs-to-be-a-crime/

    is very interesting,  they use Match.com as an example,  but that is a sorry example for anyone to use, the same with any dating sites.  I am sure that there are huge whoppers told on all those sites about everything from the marital status to the age etc.

    Strange though they all miss the important option on Sex,  they have Male, Female but not YES PLEASE as an option. LOL

    Seriously though, I do think that there is room for such an act, though it should have limitations when it is used,  ie on the likes of Social networks, if the comments are derogatory but not harmful then it should be a private matter through a writ against the offending party.

    I think though that the worst offenders are those that post anonymously using comments on News  reports.  Just reading some of the comments and I am sorry these people pertain to be republican voters but that may be a guise by the racists and bigots out there.  In those cases then the news websites should be held responsible and should be required to police the comments rather than allow people to police themselves,  it just doesn’t seem to work.

  • http://pulse.yahoo.com/_N6OQITYG5QN57CTPO5XSOFVEXM Jim

    The cnet story along the same lines

    http://news.cnet.com/8301-31921_3-57324779-281/doj-lying-on-match.com-needs-to-be-a-crime/

    is very interesting,  they use Match.com as an example,  but that is a sorry example for anyone to use, the same with any dating sites.  I am sure that there are huge whoppers told on all those sites about everything from the marital status to the age etc.

    Strange though they all miss the important option on Sex,  they have Male, Female but not YES PLEASE as an option. LOL

    Seriously though, I do think that there is room for such an act, though it should have limitations when it is used,  ie on the likes of Social networks, if the comments are derogatory but not harmful then it should be a private matter through a writ against the offending party.

    I think though that the worst offenders are those that post anonymously using comments on News  reports.  Just reading some of the comments and I am sorry these people pertain to be republican voters but that may be a guise by the racists and bigots out there.  In those cases then the news websites should be held responsible and should be required to police the comments rather than allow people to police themselves,  it just doesn’t seem to work.

  • Christie213

    I can not believe I am reading this. I had to reply. I was getting threats that originated from the internet. They started as extortion by prosecution threats. Then the threats got vulgar, threats of kidnap torture and rape. I reported every number they called me from. Once the threats became of bodily harm, I felt it was time to call the police. When the police were in my home they took a report and asked me if ” I wanted him to go to another country to arrest someone”? I said yes, he told me to change my number. I asked him if for some reason I turned up missing, what would happen? He said he had a report. Now because they do not like it, I can not hide myself and my family? I do nothing malicious on the Internet. How dare they tell me I can not protect myself when they can not!

  • Christie213

    I can not believe I am reading this. I had to reply. I was getting threats that originated from the internet. They started as extortion by prosecution threats. Then the threats got vulgar, threats of kidnap torture and rape. I reported every number they called me from. Once the threats became of bodily harm, I felt it was time to call the police. When the police were in my home they took a report and asked me if ” I wanted him to go to another country to arrest someone”? I said yes, he told me to change my number. I asked him if for some reason I turned up missing, what would happen? He said he had a report. Now because they do not like it, I can not hide myself and my family? I do nothing malicious on the Internet. How dare they tell me I can not protect myself when they can not!

  • Hmm

    Better not end up being this way

  • Hmm

    Better not end up being this way

  • D Lowrey

    Those “special” emails I get promising me to increase my length BETTER be true if this stupidity goes through. By being true…I want to stand across the room and turn on the light switch without getting up.;)

    • Wee Willie Wanker

      D Lowrey,

      want to stand across the room and turn on the light switch without getting up.;)

      Just out of curiosity, how would you stand without getting up? :/

    • Wee Willie Wanker

      D Lowrey,

      want to stand across the room and turn on the light switch without getting up.;)

      Just out of curiosity, how would you stand without getting up? :/

  • D Lowrey

    Those “special” emails I get promising me to increase my length BETTER be true if this stupidity goes through. By being true…I want to stand across the room and turn on the light switch without getting up.;)

  • http://about.me/hollywoodlights1992 Daniel Stransky

    Okay this is a little bit on the sickening side to me. I am really starting to see technology related laws that go well past where they should. Let’s just take a few looks, shall we. 

    1. The above post. 

    2. The internet blacklist I have seen articles on. Basically the US wants the ability to delete websites they deem inappropriate from access in any country. 

    3. The internet piracy laws that made me respect Justin Bieber as a person. I forget the exact name of it but its the one where uploading a video of say John Smith singing a cover of a Rush song. 

    Correct me if I am wrong but aren’t those laws just a tad excessive. I’m all for wiping out piracy and internet bullying and malicious websites, but we have to do this within reason. This whole affair of having the internet is starting to seem a bit like when the RIAA was handing out piracy law suits to senior citizens and toddlers. 

    No wonder Skynet eventually turned on us….

  • http://about.me/hollywoodlights1992 Daniel Stransky

    Okay this is a little bit on the sickening side to me. I am really starting to see technology related laws that go well past where they should. Let’s just take a few looks, shall we. 

    1. The above post. 

    2. The internet blacklist I have seen articles on. Basically the US wants the ability to delete websites they deem inappropriate from access in any country. 

    3. The internet piracy laws that made me respect Justin Bieber as a person. I forget the exact name of it but its the one where uploading a video of say John Smith singing a cover of a Rush song. 

    Correct me if I am wrong but aren’t those laws just a tad excessive. I’m all for wiping out piracy and internet bullying and malicious websites, but we have to do this within reason. This whole affair of having the internet is starting to seem a bit like when the RIAA was handing out piracy law suits to senior citizens and toddlers. 

    No wonder Skynet eventually turned on us….

  • Old Rockin’ Dave

    The sad sick story of Dennis Markuze, AKA David Mabus, of Montreal belongs here. I don’t mean his using multiple silly names to disguise his threats on Facebook (For the whole sad story of his threats and downfall, google his name along with William Raillant-Clark.). I posted on FB with my real name and he threatened me too (“We will cut your head off”.). Had he done a little research he could have found my daughter in Montreal, and who knows what might have happened? I have had my comments on blog posts misunderstood, and had I used my real name some of the threats I received because of that might have come to my door. I can think of no better way to stifle the Internet than to let this law go ahead.

  • Old Rockin’ Dave

    The sad sick story of Dennis Markuze, AKA David Mabus, of Montreal belongs here. I don’t mean his using multiple silly names to disguise his threats on Facebook (For the whole sad story of his threats and downfall, google his name along with William Raillant-Clark.). I posted on FB with my real name and he threatened me too (“We will cut your head off”.). Had he done a little research he could have found my daughter in Montreal, and who knows what might have happened? I have had my comments on blog posts misunderstood, and had I used my real name some of the threats I received because of that might have come to my door. I can think of no better way to stifle the Internet than to let this law go ahead.

  • Ryanb

    The DOJ refuses to prosecute Black Panthers to intimidate white voters at the polls, sells guns to Mexican drug cartels so they can kill our border patrol agents but wants to criminalize users of social media who use pseudonyms to maintain their anonymity. In what universe does any of this make any sense?

  • Ryanb

    The DOJ refuses to prosecute Black Panthers to intimidate white voters at the polls, sells guns to Mexican drug cartels so they can kill our border patrol agents but wants to criminalize users of social media who use pseudonyms to maintain their anonymity. In what universe does any of this make any sense?