The Lori Drew case, in which a US woman set up a Myspace account under the name “Josh Evans” to torment a teenage girl who had fallen out with Drew’s daughter, and drove her victim to suicide, has some legal implications of interest to bloggers. Drew was ultimately sentenced to jail, not for her cruel prank and its fatal consequences, but for “unauthorized access to a computer system” by virtue of the false name under which the account was created. On the face of it, the same offence is committed (at least under US law) every time a commenter on a blog or noticeboard uses a sockpuppet to evade bans or blocks, or to post under multiple identities in violation of contractual terms.
Drew’s lawyers, who include Volokh conspirator Orin Kerr, are appealing on the unappealing (at least to a me as a non-lawyer) grounds that “fraudulently induced consent is consent nonetheless“. They claim that, by allowing the creation of the account, “MySpace affirmatively authorized the access to its computers”.
Kerr’s argument reflects his views in a 2003 article where he distinguishes between the kind of contractual violation involved in the Drew case and “bypassing of a code-based restriction such as a password gate”. But sockpuppeters illustrate the difficulties of this distinction. A typical case would be a blog commenter, blocked under one identity, who reappears under a new one. In lots of cases, this involves bypassing a software block. Admittedly, the block is easily enough dodged, but the fact that a lock is easily broken is not a defence against a charge of burglary.
Moreover, there’s no easy distinction between sockpuppeteers and spammers. The typical sockpuppeteer infests one system at a time, as opposed to the millions attacked by spammers. On the other hand, spammers are often easier to deal with.
The real defence is that so many people do this kind of thing, usually with relatively trivial harm, that it should not be criminalised. But that’s a claim that’s applicable to all sorts of nuisance offences, and there seems to be no consistent pattern. For example, sometimes abusive language is a crime and sometimes it’s just a violation of etiquette. I’ll be looking forward to a test case.