Hard cases make bad law, especially online, argues Bill Thompson
It has always been difficult to stay completely on the right side of the law, however law-abiding one tries to be.
I try to check the copyright status of every picture I use in my presentations, but may sometimes slip up.
Copying CDs I own to my iPod may – or may not be – illegal, and copying DVDs I own certainly is.
And like all drivers I sometimes see the speedometer creep up above the speed limit when I’m not paying attention to it on a quiet motorway.
But now it seems I could face prosecution for the wide range of user accounts I’ve created on MySpace, Facebook, Googlemail, Flickr and Bebo to support the various projects I’m involved with.
The Norfolk and Norwich Festival, Tyneside 100 and Wysing Arts Centre identities I have lovingly crafted may well fall foul of a US decision that breaking the terms and conditions of a social network site can count as unauthorised access, turning what would seem to be at most a civil offence into a criminal act under computer misuse laws.
The concern arises because prosecutors in California have just charged 47-year-old Lori Drew under the Computer Fraud and Abuse Act for creating a fictitious MySpace account, something which many of us have done in the past and which I do all the time when projects I’m working on require a MySpace profile.
The prosecution raises wider issues that should concern any computer user
Drew allegedly used the account to pretend to be a 16-year-old boy, befriending and then rejecting 13- year-old Megan Meier, a friend of her daughter’s, and – it is claimed – provoking Meier to commit suicide.
However state officials could find no basis on which to prosecute her in the 18 months since Meier’s death, until the imaginative use of the computer crime law lead to charges last week.
If the case against Drew is proved then she deserves our complete condemnation for bullying a young and vulnerable girl, and I can’t imagine anyone would defend this behaviour or argue that a right to anonymity or pseudonymity extends to adults who abuse young people in this way.
But the prosecution raises wider issues that should concern any computer user, especially those who neither read nor take much notice of the terms and conditions of the sites and services they visit, since it opens up the possibility that acts which we thought were insignificant could be used against us in unexpected ways.
As always, we need to be careful about jumping to the conclusion that this is the death of the web as we know it, that every social network site will start prosecuting its users or that we are all under risk of investigation.
All we have is an indictment, which may be thrown out by the court, claiming that an offence has been committed.
The Computer Fraud and Misuse Act is being used because the false identity was used to do something much more serious, and the legal argument is that it can form the basis of a prosecution because it constitutes a “tortious act”, but this has yet to be accepted by a judge.
Even if it went all the way through to successful prosecution it doesn’t mean that MySpace could throw recalcitrant users in gaol for signing up with false names. And in most cases, like that of Lori Drew, there would be another law under which to prosecute anyone who used their online identity for something dodgy.
And yet it is a worrying development, because it creates a degree of uncertainty and may, because of that, have a chilling effect on what we do online.
I’ve created new profiles and identities with wild abandon, secure in the knowledge that if Facebook or Bebo or whoever didn’t like what I was doing the most they could do was close my account and perhaps try to stop me opening a new one.
But just as new laws on anti-social behaviour in the UK have created uncertainty about what is acceptable, with tales of people being fined for dropping two crisps that would be eaten by a bird within minutes promoting an atmosphere of careful restraint, any sense that online activity could get someone into serious trouble may limit playfulness and creativity.
In Nineteen Eighty-Four Winston Smith is afraid of the telescreen not because he is being watched constantly but because he might be being watched at any particular moment.
As a result he controls himself far more carefully than the Party could ever manage.
We need to be careful that the US legal system, desperate to prosecute someone over the tragic death of a young girl, does not end up establishing a precedent that leads us all to censor ourselves online, just in case.
Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.