Motions to Dismiss Filed in MySpace Suicide Case:
The WSJ Law Blog has the scoop, including links to the motions; the Washington Post also has coverage. The law review article of mine that is quoted in the motions is available here. Full disclosure: As I've noted before, I've provided a bit of advice to the defense counsel in this case on a pro bono basis.
When good people sit back and let bad laws be upheld and be precedent be made against unsympathetic defendants, we all suffer. For my part, I think Orin should be proud of his involvement.
I beg to differ. The prosecution's theory -- and I am not joking -- is that violation of the "terms of service" of a website is a federal crime.
I am thankful that people like Prof. Kerr are involved.
John Jenkins--Stop blogging and get back to work running my (over-rated) alma mater, Fr. Jenkins.
http://president.nd.edu/
reprehensible =/= illegal.
And CERTAINLY doesn't make her criminally responsible...
I would (if I was a lawyer), wish to defend this woman. I think far worse than her conduct is an overzealous prosecutor attempting to squeeze the law around to make it fit this case. Jack McCoy'ism...
I agree entirely with Prof. Kerr and the defense lawyers that if this case is not dismissed this over-reaching will make Federal criminals indicted or unindicted of many internet users for violation of an ISP's terms of service.
In the original version of the bill, according to its proponents (mostly Senate staff and DoJ prosecutors), a judge could well read broad application as the intent of Congress.
"Unauthorized access of a computer" indeed! I objected then and object now to this vague language. Proponents in 1979 argued that we should trust the prosecutors not to over-reach.
I argued then that one could murder somebody by dropping a filing cabinet on the victim's head from an upper story window, but the crime is murder, not the unauthorized use of a filing cabinet.
I most sincerely hope for all our sakes that this over-reaching is squashed.
I vehemently disagree with this, and I do so even though (1) these people may very well be guilty of horrendous conduct, and (2) I might not take their case.
Even the most unpopular among us are entitled to a vigorous defense. Indeed, that defense is often the only thing that stands against our justice system simply becoming a popularity contest.
Prof. Kerr has every right to stand up for whatever principles he feels are or should be applicable here
And don't forget EULAs. Violation of a program's EULA would make your access of your own computer a Federal crime. See Wikipedia for criticisms of Incredimail's EULA for example.
EULAs afford more opportunity for byzantine terms than ToS's. Why, we could jail almost everybody.
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