Congress Debating If Putting A Fake Name On Facebook Should Be A Felony

from the how-to-turn-the-whole-world-into-felons dept

On Wednesday, George Washington Law professor and former federal prosecutor Orin Kerr authored an op-ed in The Wall Street Journal, posing the question "Should faking a name on Facebook be a felony?" He was, of course, talking about the infamous Computer Fraud and Abuse Act (CFAA), which Congress is preparing to update. The CFAA, as has been noted here many times, is a federal law passed in the '80s and initially designed to combat malicious computer hacking, but which has become bloated, stretched and over-applied in the years since.

At the root of many of the arguably overreaching applications of the CFAA is the prohibition on conduct which "exceeds authorized access" to a computer system. According to Kerr:
The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don't like.
And Professor Kerr should know, he was the attorney who defended Lori Drew when she was charged with a felony for making a fake MySpace profile. The Justice Department's position that a violation of a terms of service constitutes a federal crime basically makes the Federal government the enforcer of private contracts. Got an employee spending too much time on Facebook? Turn them in to the Feds. Someone posting comments you just don't like on your blog? Call the DOJ. Or threaten to. The chilling effect alone should be enough to keep your users in line.

Would you believe that some politicians are even thinking of making the bill even worse?

Professor Kerr's primary concern expressed in the op-ed was that the CFAA was going to be amended to make any violation of the CFAA a felony. Hopefully, this won't pan out. The original Administration proposal (pdf) did increase the baseline punishment for any violation of the CFAA (including exceeding authorized access) from a misdemeanor level offense (less than one year) to a felony. But, thankfully, the Judiciary Committee didn't take the Administration's suggestion. Lets hope it stays that way as this bill makes its epic journey through the Washington legislative sausage maker.

There is yet a glimmer of rational-thought hope. Senators Grassley and Franken have introduced an amendment (pdf) which would modify the definition of "exceeds authorized access" to exclude violations of a TOS, if that's the only basis for the charge of violating the CFAA, effectively improving the CFAA instead of making it worse. Fingers crossed that the amendment makes it in.

Filed Under: cfaa, felony, hacking, orin kerr, terms of service


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  1. identicon
    Moviestarlett, 22 Jul 2013 @ 12:14pm

    The government is responsible for most of the fake profiles.

    "Pentagon Seeks to Manipulate Social Media for Propaganda Purposes"

    (you mean to tell me i found this out from doing my own research and all #EdwardSnowden "revealed" and "leaked" was some dumb powerpoint slides that look like they were done by a 5th-grader?)

    "The Pentagon is looking to build a tool to sniff out social media propaganda campaigns and spit some counter-spin right back at it.

    On Thursday, Defense Department extreme technology arm Darpa unveiled its Social Media in Strategic Communication (SMISC) program. Itís an attempt to get better at both detecting and conducting propaganda campaigns on social media. SMISC has two goals. First, the program needs to help the military better understand whatís going on in social media in real time ó particularly in areas where troops are deployed. Second, Darpa wants SMISC to help the military play the social media propaganda game itself."

    wow. and all the MSM reports, over and over and over again, is that Big Brother is supposedly watching our every virtual move and hoarding all our telephone activity.

    this is a smidge more sinister and just...well...EVIL...wouldn't you say?

    they've actually developed software that generates FB profiles complete with friends, likes, photos, etc. but it's fake. the person behind the fake screen persons is a military operative component of the gov't spin machine, put there to incite conflict, debate, & confusion while using fake numbers to manipulate and control public opinion.

    http://www.washingtonsblog.com/2011/07/pentagon-seeks-to-manipulate-social-media-for-pro paganda-purposes.html

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