Cheers for Kerr
Concurring Opinions:
Though I have had my blogospheric disagreements with Orin Kerr, a law prof and former prosecutor, I’m glad to see him getting involved in the Lori Drew case on the defense side. Though Drew’s conduct in the case was reprehensible, the feds may only be able to punish it by setting a precedent that could chill a lot of internet activity: :
Kerr wrote on the Volokh Conspiracy blog that the government was essentially charging Drew with criminal trespassing on MySpace’s server for allegedly providing false information to open a MySpace account under the false identity of a nonexistent teenage boy. Kerr said this essentially made it a federal crime to violate any online terms of service contract. “Since everyone who uses computers violates dozens of different [Terms of Service] every day, the theory would make everyone who uses computers a felon,” he wrote at Volokh Conspiracy.
That’s not to say that I endorse CDA 230, or other expansive safe harbors on the internet. Kerr has suggested limiting the CDA’s applicability–and perhaps in response to such proposals, intermediaries will start keeping a closer eye on what their users do. But this legal change should be accomplished in a series of more deliberative, regulatory, or norm-based steps–not with the blunt instrument of sudden criminal charges.
The case appears to be bringing together some traditionally opposed groups:
The Electronic Frontier Foundation, the Center for Democracy and Technology and Ralph Nader’s Public Citizen group have filed an amicus brief supporting Drew’s efforts to dismiss the charges, in part on grounds that the government’s reading of the CFAA is unconstitutional and would restrict anonymous and free speech. Andrew Grossman of the Heritage Foundation has also weighed in on the case[, . . . writing that] “Drew’s conduct was irresponsible, but it was…