July 20, 2011
Legal Department
TOS OMG
Remember Lori Drew? She's the woman who used MySpace to play a very unkind trick on a teenage girl named Megan Meier, who killed herself. Prosecutors in Missouri, where Drew and Meier both lived, didn't prosecute her for this, probably because saying mean things to little girls isn't a criminal act.
That didn't stop grandstanding U.S. Attorney Thomas P. O'Brien from stepping in. Even though he was located 1500 miles away in the Central District of California, he used the fact that MySpace's computers were located in California to charge Drew with computer fraud because she violated MySpace's Terms of Service (TOS) when she used fake information to setup her account.
Fortunately, the judge assigned to the case wasn't having any of that and dismissed the case. If this had gone forward, it had the potential to set a horrifying precedent. Instead of being merely a contract between us and the websites, the TOS would essentially be elevated to federal law. All that stuff you click past would be something that could send you to jail.
Well, according to a terrific post by Gideon at a public defender, something similar is happening to Reddit's Aaron Swartz. It sounds like an ordinary hacking complaint at first, but it's not, because Swartz did not apparently hack past security. He just downloaded more stuff than the TOS allowed. The full story is up at Wired, but read Gideon's post first.
Update: Scott Greenfield agrees the government's position is absurd, but finds the intellectual property issues more troubling.
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