I should definitely be preparing for exams instead of reading this blog ;)

Or alternately, maybe she could argue that she believed her real name was actually Ronson?

Not after Prop 8.

Consider the county DA gave her 1 day in jail for the combined offense of a DUI (2nd in two months, ended in a crash) and possession of cocaine*, I wouldn't be too angry if the Federal DA slapped her around a bit.

* “She’s getting what everyone else would get”: Deputy District Attorney Danette Meyers. Yeah right.

It's a shame that courts do not give class of one equal protection claims in criminal court; or they distinguishes cases in immaterial ways.

Either everyone who is caught should be prosecuted; or no one should. That's equal protection.

As it stands, Lori Drew was selectively prosecuted for a crime thousands of others have committed. Her prosecution was unfair, and indeed, is unconstitutional in the most fundamental sense. Does it really get much more fundamental than equal protection under the law?

Make that, "Thus, the government could argue that the first was in furtherance of the violation of the second, "

Did "Ronson" ever use Facebook to meet up with people who gave her drugs?

If so, that would upgrade her Facebook cyberfraud from a misdemeanor to a felony, right?

Let it go, Orin. Your client's scum and she's been convicted. All you're accomplishing beating this dead horse is reminding everyone of the dirtbags you chose to associate yourself with.

Whether or not Lori Drew is scum doesn't mean she should go to prison on more or less fabricated charges. I don't speak for Orin but what's important to me in this case is the rule of law.

Portland,

Lawyers have all kinds of clients. Even "scum" deserve legal representation.

Also, it seems as if you are implying that Orin Kerr is scum by association. Don't you think you went too far?

... broke the terms of service using a name other than her own....

If there were a civil case then the issues might be more clearly focused in the briefing.

Assume, arguendo, as a matter of law, that access without benefit of the permission granted in the Facebook ToS is deemed unauthorized. That is, Facebook unilaterily grants a license to use their service, and all other access is prohibited, with clear notice.

Then, a critical question is whether providing a truthful name is a condition precedent to the license. Or if the term is merely a covenant attached to the license terms.

If the former, that is if it is a condition precedent, then the license does not issue absent performance by the licensee. If the latter, that is, if it is merely a covenant, then performance may be a preferred remedy. However, the situation may get slightly murky due to differences between contracts, and unilateral licenses.

In general, a license shall be constructed by the same general principles which govern contracts. Further, in some settings, a unilateral license may be seen as nothing more than an enforcable covenant not sue. Where that analysis tends to fail though, is when the defendant attacks the license on the grounds that it isn't an enforcable contract—but seeks to retain the benefit of the permission granted. In that case, there are clear differences due to prohibited nature of the unlicensed act.

Thus, the government could argue that the first was in furtherance of the violation of the second

Laughed out loud -- there's a certain mindset that comes with being a prosecutor (or at least when you have a prosecutor in the "I know what he did let me find a law to charge him with" mode).

Now that we have the fabricated crime of violating a TOS, perhaps we can also fabricate a defense for persons of vacuity. Along the lines of the old Twinkie Defense, it would exempt persons who lack the substantial capacity to comprehend a TOS agreement.

LOL it is VERY FUNNY that portland is committing the new federal crime of which he's glad Lori Drew has been convicted. Thanks for making my day!

I will not quit laughing at this moron for at least 48 hours.

iambatman is banned, too.

It's a hat trick!

Hmmm... I was reading the statute wrong. The 10 year sentence in this case would only apply to ones subsequent to a conviction. (In other words once convicted, each additional login would be 10 years.)

That would still make at *least* make 15 years for 11 logins though, depending on how one counts....

Did Lohan's violationh also result in the suicide of a teen age girl?

Orin, sarcasm really doesn't get you anywhere as a means of persuasion, as I think this blog once noted. There are plenty of crimes that are so massively overbroad that "everyone does it." Speeding is the most obvious one (though a infraction and not a crime as such). Wire fraud and mail fraud probably count too. It is just a little unpersuasive to anyone who is not already a member of the choir to be "shocked, shocked" all of a sudden that the criminal law is so overinclusive.

Is using a name other than the one on your birth certificate misrepresenting yourself? I thought in this country you could whatever name you wanted, as long as it wasn't for fradulent purposes?

@LM That video was insane! That woman should be locked up for her own protection.

Mike&,
I think the difference, whether it should be or not, is that someone died in Lori's case. It was certainly a clear case of cyber-bullying. That is hard to avoid......

except that it was irrelevant to the Drew case. Quit drawing an irrelevant death into a discusion of the law, the death had nothing to do with Drew or her sentence. Let's talk about the law and how it is a crime to abuse TOSs without dragging in this irrelevant death.

Uh, everybody seems to be assuming that using a pseudonym is necessarily misrepresentation. I don't think that is true. Generally speaking, isn't it the case that, for both civil and criminal purposes, it is NOT misrepresentation to use a name other than your legal name so long as you do not do so for the purpose of committing fraud or concealing information that others are legally entitled to know?

Uh, everybody seems to be assuming that using a pseudonym is necessarily misrepresentation.

I JUST SAID THAT :-) :-)

Orin,

I'm curious about something. Perhaps I'm misunderstanding your tone (the Internet isn't good for judging such things), but you seem surprised or even hostile that you're getting push back on the Lori Drew case. I suspect this is rooted less in a substantive disagreement about the law (because you're very persuasive on that score), and more in what may be perceived as a contemptuous attitude towards those who are not disturbed by the basic justice or morality of imprisoning your client for what she did, even under an overbroad law.

Of course, as Lori Drew's lawyer, you can't speak ill of her; we understand that. I also think most of us agree with your basic premise: we must let Lori out of prison, or else Leviathan will threaten us all. Fine, but do we have to be happy about it? You seem to need us all to think it's not even regrettable that Lori Drew gets out of jail. Yet at least 8 of your client's peers thought they could convict her of a felony and still sleep at night; I bet most lay people would agree. There are surely lots of people who trust the government not to prosecute them on this specious theory--only people like your client, whose outrageous conduct we would have criminalized in more precise terms had we been able to foresee it. Can you show this trust to be empirically misplaced? Or do you just think, as I do, that "it's the principle of the thing"?

Perhaps I've misread your tone; if so, I apologize. But I do wonder whether some of the resistance you're encountering stems from your readers' inference that you disapprove of their moral intuitions and priorities. Just a thought,

Lex

Orin, poking fun at a previously ignored pheonmenon only when it so obviously benefits your client seems a little self-serving.

Orin, poking fun at a previously ignored pheonmenon only when it so obviously benefits your client seems a little self-serving.

The point is that it wasn't previously ignored by Orin Kerr. He apparently first wrote about the possibility of a zealous prosecutor applying computer crime laws against a TOS violation several years ago. His interest and knowledge of this area of law seem to be the reason why he is representing (pro bono?) Drew in the first place.

So, yes, when a Federal judge (wrongly, of course, according to Kerr) rejects the legal theory that OK has proposed in the past, of course he is going to start pointing out the absurdity of his opponents' alternate theories. How is that "self-serving"?

Well, it is self-serving insofar as what serves our clients serves us.

So your theory is that he's using his weblog to enhance his chances for a successful appeal? You're reaching. Badly.

I feel like such an imbecile for still liking LiLo, inspite of everything. She hasn't gone totally winehouse on us. Not yet, anyway. The fact that she is (or is pretending to be) a lesbo just piques my fascination.

To take an analogy, it is as if you suddently decided to write a sarcastic blog post about how speeding laws are massively underenforced the day after you get a ticket. While I beleive that speeding laws are out of touch with reality, just as I believe that the Drew prosecution is overreaching, it still doesn't help your argument.

But at least with speeding laws everyone is aware of them. You have to pass a test to get a driver's license that goes over them and the government puts up signs all over the place letting you know if you are breaking the law. People may not like them and most of our local and state governments are not consistent in enforcing them, but pretty much everyone agrees the laws as written make speeding an infraction and that this is what the legislature intended when it passed the laws.

And no one goes to jail for speeding unless it is reckless or connected with another crime they are convicted for. I have never heard of a prosecuter sending someone to jail for speeding when they want to convict them of murder, but can't.

Orin, poking fun at a previously ignored pheonmenon only when it so obviously benefits your client seems a little self-serving.

TVK,

Dude, did you just find this blog for the first time?

(1) Buy spellcheck.
(2) OK's fun-poking does not obviously benefit his client.
(3) This phenomenon wasn't ignored by him previously, in fact
(4) he took this case pro bono (self-serving?) because he had already done public scholarship on this very issue.

Welcome to VC. Buy a spellchecker, read a few posts, and keep your foot in your mouth.

After all, the internet is too dangerous a vehicle to be utilized in an unlicensed manner.

Sorry, that should read:

"...utilized in a rude and unlicensed manner."

See how easy that was?

Ryan Waxx:

Well, it is self-serving insofar as what serves our clients serves us.

So your theory is that he's using his weblog to enhance his chances for a successful appeal? You're reaching. Badly.

I'm the one who's reaching? The point of my comment -- the whole comment, not just what you quoted out of context -- is opposite what you claim. I said that despite any benefit to Orin's client (and thus technically to Orin) from a post like this one, his pre-existing scholarship and commentary on the subject indicate that such benefit is not what motivated him to post it.

Actually, the issues would just be different: Criminal law is not contract law, and criminal statutes with elements requiring lack of consent or authorization are generally construed using the factum/inducement distinction rather than using civil law concepts like licenses and contracts.

Professor Kerr,

I may very well be an idiot, with an incomplete and inaccurate understanding of the fundamentals of common contracts and licenses... but Facebook is a sophisticated entity, employing qualified and competent attorneys to scrutinize the offers, contracts and licenses that they willingly offer to the public. Even if I'm clueless, they must know what they're doing.

If, in a civil action brought by Facebook against Ms. Lohan, applying a summary judgement standard, any rational court would conclude that Facebook issued Ms. Lohan a license to access the site, then I've got hard time figuring out how the U.S. Attorney's office could prosecute her in good faith for unauthorized access.

From the facebook Facebook ToS:

[...]

Registration Data; Account Security

In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

Proprietary Rights in Site Content; Limited License

All content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the "Site Content"), are the proprietary property of the Company, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site. Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Such license is subject to these Terms of Use and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.

[...]

I've emphasized three important terms (and de-emphasized the captions). These three terms deserve discussion.

“Provided” is an alert word, commonly used to indicate a condition.

I also read the termination clause as a condition, however it's a condition subsequent to Facebook's license grant.

The “In consideration ... you agree to” reads to me like some promises.

Has no one noticed that this is as clear an act of terrorism since, uh, I forget.

TVK,

I don't think there are no arguments on the other side: I just think there are no arguments that aren't very very weak and pretty obviously unpersuasive. This is a topic I have been studying for a decade, both in government and as a scholar, and I have pretty strong feelings about it. If you don't like what you hear from me on the case, you really should cease reading my posts: No one is making you read them.

To make this easier for you, I hereby amend the Volokh terms of service to add the following: Anyone who has left a blog comment using the handle "tvk" is not authorized to access this blog. Any access by such individual(s) is unauthorized, contrary to the permission of the owners, and without the consent of the blog.

Sometimes sarcasm is really the only appropriate response.

Seriously, when a prosecutor decides on criminalizing conduct he's only got to search the books to find a violation.