Fighting The Pseudonym Cyberwar

The Department of Justice plans to tighten current laws regarding websites' terms of service conditions. That means if you press that "Agree" button on websites, you better mean it. Some say broadening the Computer Fraud and Abuse Act could even make using a pseudonym on social media outlets a felony. Weekends on All Things Considered guest host host Laura Sullivan talks with Orin Kerr, a professor at George Washington University Law School, about how the government can strengthen the Internet's defenses against cyber warfare while keeping the law reasonable.

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LAURA SULLIVAN, HOST:

In 2008, the Justice Department prosecuted a woman named Lori Drew after she set up a Facebook account to harass a 13-year-old girl who later killed herself. But the conviction didn't stick. And now the Justice Department is trying to strengthen the Computer Fraud and Abuse Act in hopes of preventing people from using the Internet for harassment or fraud.

That could have implications for anyone who uses the Web, says Orin Kerr, a professor at George Washington University Law School. He says the law is so broad, anyone who lies about their age on Match.com could be held liable. Kerr recently testified before Congress about the new measure, and he was one of the lawyers who helped overturn Lori Drew's conviction.

ORIN KERR: The tragedy in this case and what led to the criminal prosecution was that the girl who was contacted committed suicide. Lori Drew was prosecuted on the theory that she had violated MySpace's terms of service because she set up a fake profile, which MySpace didn't allow.

SULLIVAN: That was what she was prosecuted for?

KERR: Yeah.

SULLIVAN: Was she prosecuted for anything else?

KERR: The Missouri prosecutors, both at the state and federal level, said no crime had been committed. They couldn't bring charges. And it took a very aggressive prosecutor in Los Angeles, of all places. Why Los Angeles? Because that's where MySpace's computers are located, to come up with a new theory that this was a term of service violation that was akin to hacking into MySpace's computers.

SULLIVAN: What does any of this have to do with Facebook and Twitter?

KERR: All of these sites, Facebook and Twitter included, have terms of service, which are written extraordinarily broadly. No one ever reads what those terms are. I'm a law professor. I just click yes.

SULLIVAN: Yeah, no, never.

KERR: I never read them.

SULLIVAN: Nobody reads that.

KERR: But if you go back and read what those terms of service are, they'll include things like, all the information you give has to be accurate. You have to be a certain age; if you've given any information about things that you like, where you live, if any of that is inaccurate, you are technically in violation of the terms of service of the site. But if that is a criminally enforceable rule, then suddenly pretty much everybody who uses computers is a criminal. And it's incredibly easy for the Justice Department to step in because the terms of service themselves are arbitrary.

SULLIVAN: So, the Justice Department, they're not really going to go after individuals who are saying, I'm 35, when they're actually 45 years old. I mean, they're not going to try to hit these small-time potatoes, they're looking to use this to go after big cases. Is this what your understanding is, that this is like a selective choice?

KERR: Basically, the Justice Department is asking for tremendous power and they're saying, we don't plan to use it, but they might. The difficulty really, I think, boils down to what's the role of criminal law. Do we want the government to be able to find people that seem to be bad and to punish them under some pretense, in this case a term of service violation, when really that's not what we think the crime is.

So, in the Lori Drew case, it just so happened that the government found that Drew had violated the terms of service, but that clearly had nothing to do with why the government really wanted to prosecute Drew, which is that a young girl had died. So, it's a fundamental question about how much power the government should have over individuals and how easy it should be for the government to take away people's freedom.

SULLIVAN: Is there any happy medium in this at all?

KERR: Absolutely. So, basically, you could make the law depend on what kind of information the person obtains in violating the term of service. Right now, the law just says if you exceed authorized access to a computer and you obtain information of any kind, you violated the statute. So, we should just limit the law so that the kinds of violations that are triggered are the ones that actually correspond to some sort of social harm, whether it's a financial cost or a human cost, some harm that justifies criminal punishment.

SULLIVAN: Orin Kerr, he's a professor at George Washington University Law School. And he's been speaking with me in our studios in Washington. Thanks so much for coming in.

KERR: Thanks for having me.

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