MySpace Case May Threaten Online Speech

A federal grand jury on Thursday issued an indictment against a Missouri woman accused of creating a fake MySpace page to bully a 13-year old girl who later committed suicide. The high profile, and emotionally charged case, has drawn media attention from around the world.

Unfortunately, the prosecutors have relied on a novel and troubling interpretation of the law in order to go after the MySpace bully. This new legal theory may significantly threaten free speech and anonymity online.

The prosecutor's argument is as follows: The terms of service for the MySpace website require that users provide truthful registration information, and that users not use any information learned from the site to harass or harm other people. Lori Drew, the accused bully, is alleged to have violated these terms of service, and therefore, was using MySpace's computer servers without the company's permission. Based on this, she is accused of "Accessing Protecting Computers to Obtain Information," a violation of the Computer Fraud and Abuse Act.

To clarify: the prosecutor is arguing that anyone who violates a website's terms of service has committed computer hacking, a felony.

This legal argument, should it prevail, would create a significant chilling effect on the Internet at large. Free speech, anonymity and innovation would all suffer.

To understand how serious this is, consider the following examples, all of which are violations of various terms of service :

• Making a fake Facebook profile for George W. Bush for parody or political commentary.
• Criticizing AT&T if it is your DSL provider.
• Using BitTorrent and other filesharing technologies on most US broadband services.
• Creating a Google Mail (gmail) account, or using any of Google's other services if you are under 18.

We will revisit this case, and the troubling legal issues it brings up, in the coming months as the case advances.