Lori Drew has been indicted for using MySpace. If you haven’t heard of the case, she allegedly created a false profile as a teenage boy, started an online relationship with a neighbor girl, then drove her to suicide. I turn to Orin Kerr for the gamer-relevant part:
To understand this case, you need to understand the government’s theory. The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government’s theory in this case is that Drew criminally trespassed onto MySpace’s server by using MySpace in a way that violated MySpace’s Terms of Service (TOS).
Here’s the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn’t comply with these terms, the theory goes, so she was criminally trespassing onto MySpace’s computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).
In other words, logging on while violating the TOS is the same thing as hacking the servers. Further bad behavior makes it a felony. As a legal theory, Prof. Kerr suggests, this is not a winner. But if it is, your MMO can not only ban goldfarmers/spammers but also put them in federal prison. And that also applies to people who were banned for abusive language, since this case is explicitly about violating the TOS to inflict emotional damage.
: Zubon
Yeah, this was a horrible precedent to set, even just the indictment itself, regardless if it fails.
There’s been this subtle shift in the past decade, I’ll even say it has roots a little longer, where ‘crime’ is going past direct cause and effect and beginning to also be determined from correlating sources (I could drag the DMCA into this too). Actually causing someone’s death should be a crime, being a factor in why they’re depressed enough to commit suicide should not be even considered for indictment. It’s shameful for sure, but that’s taking the desire to punish too far.
It’s all so big-brother-ish to me. Orwell was just off by a few years. What’s next? Prosecuting on intent-only in an overzealous way to stop crime before it happens? This is the very idea of thoughtcrimes.
15 years ago, a TOS wasn’t even considered remotely a legal document. It could say all it wanted, but the only parts enforceable were the ones that already matched existing laws. It should be impossible to sign your rights away this way.
I really have a hard time wrapping my head around the idea that violating a TOS is a criminal offense. Civil, maybe. A breach of contract, sure. Criminal is a bit far.