EVEN MORE: Hi Orin! Seth Finkelstein sent me your way. re: " You can imagine the basic idea, though: Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon." This doesn't make sense to me because 18 U.S.C. 1030(a)(2)(C) is not a stand-alone punishable offense. Delia P.S. there is more detail on this in my discussion with Dan Gillmor and Seth Finkelstein on Dan Gillmor's blog D.
MORE: I’m not out to convince anybody, Seth, but I may post a comment if they are not making it a hassle to do it (make you register and the like) Thanks! D.
MORE: P.S. for Seth: I get the impression an alarmist first caught wind of this and then a whole lot of others just adopted that view without really looking into it. D.
STILL MORE: re: Dan Solove: “if one “intentionally accesses a computer without authorization . . . , and thereby obtains . . . information from any protected computer if the conduct involved an interstate . . . communication” and “the offense was committed in furtherance of any . . . tortious act [*in this case intentional infliction of emotional distress*] in violation of the . . . laws . . . of any State.” [my emphasis]
–>that’s why this whole idea that *everybody* would be felon makes no sense… UNLESS *everybody* is doing things like intentionally inflicting emotional distress on others (possibly driving them to suicide) … pretty far fetched assumption as far as I’m concerned… D.
EVEN MORE: re: Orin: “You can imagine the basic idea, though: Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon.” –> nonsense… for the reasons I gave above — it’s NOT a stand-alone *punishable* offense…
MORE: sorry about the delay (was away for the day)
Dan, I’ve told you before I have no interest in having the last word — I *do* have an interest in clearing things up if possible… (otherwise it seems pointless to talk about them, no?)
The offense in case is the one *you* gave (I just tracked it down and gave all the relevant parts of the law):
” From the actual law:
Whoever ‘intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer if the conduct involved an interstate or foreign communication…”
The law doesn’t require a reason. Just doing it, under this incredibly sweeping interpretation, is enough to trigger an indictment.” –> these were your words(May 22nd, 2008 at 8:54 am)
if this is not a punishable offense on its own (it requires a separate conviction for a second offense) — and unless you show me that my reasoning was wrong, I see no reason to believe otherwise — who would prosecute?
realistically, the indictment you talk about would never materialize…
STILL MORE: well, it would help if you said what exactly *you* believe…
re: “You are simply incorrect. That is not what it says.”
if you believe it says you *would* be punished even if ALL you did was what (a) (2) (C) says, where are you reading that? (I thought I gave all the relevant parts)
the following is incomplete — re: I said it was not a “stand-alone *punishable* offense” [my emphasis] — there is NO punishment for it UNLESS it occurs *after* “a conviction for another offense” (May 23rd, 2008 at 7:51 am)
having been convicted of an *attempt*, as I said in the preceding post (May 22nd, 2008 at 7:04 pm),” it must occur ‘after a conviction for another offense under this section *or an attempt* to commit an offense punishable under this subparagraph”; [my emphasis] would also suffice but aside from that I don’t see anything wrong with what I said…
MORE: that is the only way it makes sense to me — poorly phrased (meant just as an aggravating factor); what would be the point of it otherwise? “yep! you committed an offense… but it was so trivial that we have no penalty for you…”
EVEN MORE: I said it was not a “stand-alone *punishable* offense” [my emphasis] — there is NO punishment for it UNLESS it occurs *after* “a conviction for another offense”
P.S. I agree that is should NOT be listed as a stand-alone *offense* (even if not punishable) and I doubt it was intended as such (looks like an aggravating factor for the other offenses listed) D.
MORE: well…if AP can’t even get *the charges* right, what are they doing reporting the news?
Here are all the relevant parts from § 1030. Fraud and related activity in connection with computers, as far as I can tell:
“(a) Whoever—(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—(C) information from any protected computer if the conduct involvedan interstate or foreign communication;
shall be punished as provided in subsection (c) of this section.
(b) Whoever attempts to commit an offense under subsection (a) of this section shall be punished as provided in subsection (c) of this section.
(c) The punishment for an offense under subsection (a) or (b) of this section is—
(C) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection *(a)(2)*, (a)(3) or (a)(6) of this section *which occurs after a conviction for another offense under this section*, or an attempt to commit an offense punishable under this subparagraph” [my emphasis]
that is not a stand-alone punishable offence, is it? (it must occur “after a conviction for another offence under this section or an attempt to commit an offense punishable under this subparagraph”)
Again, here are the charges:
“” Drew … was indicted by a federal grand jury in Los Angeles on one count of conspiracy and three counts of accessing protected computers without authorization *to get information used to inflict emotional distress on the girl*. [my emphasis]
P.S. revenge is not the point here (although if you drive someone to suicide you certainly deserve punishment, as far as I’m concerned); the point is using as broad an interpretation of the law as needed to discourage this kind of situation from repeating D.
EVEN MIORE: driving someone to suicide is no trivial matter… if you have no clear way to punish this, you are just inviting more of these crimes to be perpetrated — what’s the message you are sending? :” First off, there is no clear law against it! so no worries of state or federal prosecution — *no way of going to prison* –, the parents might sue for damages in civil court but it would be a very tough case… (so chances are they would not) –> isn’t this telling the victims “tough luck”?
P.S. as to “leaves almost everyone a potential criminal,” I already explained that the idea that by simply using a pseudonym for benign reasons one would be federally prosecuted has no factual support D.
MORE: Dan, just so we understand where you are coming from: let’s assume this is in fact what's happened — the girl was purposefully emotionally distressed to the point of being driven to suicide. Would the appropriate response of MySpace and everybody else that could possibly bring justice to this situation be: “tough luck!”? This is the impression I’m getting from your statements… D.
I just don’t see where AP gets the idea that by *simply* “signing up for online service using a fake name or email address [you] could be committing a federal crime”.
Here are the charges:
” Drew … was indicted by a federal grand jury in Los Angeles on one count of conspiracy and three counts of accessing protected computers without authorization *to get information used to inflict emotional distress on the girl*. [my emphasis]
that’s a totally different story from the routine using of a pseudonym, isn’t it? I would hope that inflicting emotional distress on others (and possibly driving them to suicide) is NOT routine behavior — if it *is*, it certainly needs to be stopped!
P.S. I’ve been disappointed with AP as of late… D.