First, if you click on the "MySpace Suicide" category link to the right you can see what Dozier Internet Law has been saying about this case. You can see where Dozier Internet Law has been speaking out for almost two years about the problems with the Computer Fraud and Abuse Act. And as far as I can tell, Dozier Internet Law was the only legal voice online to not come out and attack this prosecution. Given the law as it exists today, though, the conviction makes sense.
At sentencing yesterday for the conviction, the Judge delayed it until July 2 and is considering dismissing the charges and overturning the convictions. Here is what I said last year when the case was being tried:
"I will say, however, that the facts of the MySpace Suicide case are ambiguous and complex, and I won't be surprised if the case is dismissed by the Judge post verdict or the jury returns a 'not guilty' verdict. Don't take that as a statement that the law does not apply to those violating a terms of use on a website. In my opinion it clearly does apply. Now, let's get the new Congress to fix it like I suggested a year and a half ago."
The Judge has now expressed concern over the impact of this conviction on the masses and the possibility of criminalizing the conduct of the masses who violate website terms and contracts. I am concerned that this is another example of legislating from the bench. The Judge is correct to be concerned. But the change to the law must come from Congress, not the Judiciary. Judicial activism may be popular among the liberal left wingers, but it is not the right thing to do, particularly in this case.
And the reason is clear. If Judges can decide whether laws are good or bad and change them at will, then we have a real problem with the balancing of powers. What power really remains with Congress, or the state legislatures or even city councils? Not much in the end. And from a practical standpoint, if Congress elects to change the hacking statute (which I have been calling for them to do for years) then you can bet that Congress will come up with some legislation to address this type of misconduct visited upon the young girl in this tragic case. Perhaps establishing liability by requiring a digital signature be placed on user agreements, or another law that is focused on these types of abusive uses, will be forthcoming. But that is up to Congress.
Not a California Judge.
An intellectually honest Judge with a conscience is a great thing. But everyone must know their bounds of authority and responsibility. Judges interpret the law. Congress and the executive branch make it.
The fix will certainly require modifying the existing law or adding new law. That's something Judges cannot do. And that is why judicial activism is fundamentally wrong. I'm not criticizing the Judge. I'm criticizing a fundamental philosophy. The present law was last amended in the Patriot Act passed just after 9/11. It's time for Congress to revisit the issue and make sure that the issue the Judge faces today will not be an impediment to future convictions of online scofflaws and miscreants intent upon visiting harm to netizens through gross misconduct or, in a broader sense, online terrorism.
My book on online attacks, "Google Bomb", is coming in September. You'll appreciate the need for strong legislative action once you learn about the underworld of the web, the attacks of the mobosphere, the virtual Hydra, the Streisand Effect, and the Google Bomb.
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