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Jesse Brown:15 years for violating MySpace’s Terms of Use?

By Jesse Brown, CBC technology columnist.

Millions of people pretend to be someone they’re not on the internet. On the scale of fraud, I’d say most people consider creating a fake online persona to be slightly less harmful than, say, sneaking in to a movie.

Then again, most fake online identities don’t result in suicide.

Missouri mom Lori Drew, along with her daughter and an employee, are alleged to have created a fictitious dreamboat boyfriend named Josh Evans to torment their 13 year-old neighbour, Megan Meier. “Josh” romanced Megan and then turned on her, telling her that “the world would be a better place without you.” Megan hanged herself.

Missouri law was powerless to do anything about the alleged impersonation. But now, two years after Megan’s death, Drew is on trial before a federal grand jury in Los Angeles. Why L.A.? Because that’s where MySpace’s servers are located.

The criminal charges against Lori Drew are one count of conspiracy and three counts of “illegally accessing computers”. Though the law has traditionally been used against hackers, in this case the prosecution is arguing that violating MySpace’s Terms Of Use qualifies. The TOU requires “truthful and accurate" registration information. Each charge carries a maximum sentence of five years in prison.

But this potentially precedent-setting case has problems:

  • When you break a law on the internet, whose jurisdiction are you in? The place you were in at the time? Or maybe where the recipient is? Or is it where the servers are stored? This case suggests that when the authorities are mad enough, it’s wherever the laws are stiffest.
  • Can violating an online TOU be considered a federal crime, punishable by imprisonment? Long, confusing, non-negotiable TOU agreements are clicked by millions every day: often by minors, and often on sites like MySpace, which many kids look at as a casual entertainment.

You don’t have to sign a contract before watching Hannah Montana, and I question how binding a MySpace TOU should really be. In any event, I hope that this isn’t the case to decide the point.

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