We've been involved in quite a few "hacking" and unauthorized computer access cases on both sides of the issue. Several years ago Dozier Internet Law convinced a Judge, after the prosecution had rested, to dismiss a criminal case much like the MySpace suicide case going on in LA right now. We've also used Terms of Use provisions to convince the FBI in a couple of serious cases to abandon its plans for prosecution. In this case, reports indicate the defendant did not set up the account and never read the terms of use. Defense counsel are therefore arguing that the US Attorney cannot prove she accessed the MySpace site without authorization.
This does raise a number of issues...how could she know that she was violating the terms of use if she never read them? Well, there is caselaw to support holding a user of an account responsible for abiding by the Terms of Use of a site even if they were not read. Otherwise, all one would have to do is have a friend open an account and give you the password and you could never be liable for violating the rules. So that argument isn't very convincing. MySpace has its Terms of Use linked on the bottom of pages, so it was available whether you sign up or not. Many sites don't require an independent, conscious acknowledgement by a user of the terms of use and simply link to them on the pages, but most believe they are legally binding. An analogy in the offline world would be the printed language on an unsigned invoice. I've tried that case dozens of times, and the Courts regularly recognize those terms as binding.
Dozier Internet Law was lead counsel in a two week civil trial in which the US District Court (in the 9th Circuit which covers California) found that accessing a site, even when there were no terms of use on the site at all, was unauthorized access. But in that case the party accessing the site had been told not to do so. Now if we look to the equivalent state statutes, they are most often referred to as "computer trespass" laws. And if we think about trespass in the traditional sense, land that is "posted" with "no trespassing" signs is all that is necessary to establish a lack of permission to enter upon the land. Even when the typical defense arises that "I didn't see the sign", and "I entered in between two signs and did not see them", those aren't defenses.
On the other hand, a requirement of proving the elements of "intentional access without authorization" isn't necessarily as clear. The best interpretation, it seems to me, is that the "intentional" requirement relates to the volition involved in the act of accessing a computer, and the "authorization" means affirmative permission to do an act. So, this may be more of an issue of whether the party accessing a computer obtained permission, as opposed to whether that party actually new it did not have permission (didn't read the terms of use). This is clearly new ground being explored.
But here is reality...the prosecutors have reportedly given the party who opened the account and actively participated in some of the mischief complete immunity. My instincts tell me that this will impact the Judge's perception of the legal issues, and given the high burden of proving a criminal offense, this could lead to the conclusion that a jury could not find "beyond a reasonable doubt" a lack of authorization. Case Dismissed! If the Judge really considers the issues, I think the case will go forward, he will allow the defense to put on their case, and let it go to the jury. If the Jury convicts, then the Judge is going to have to make a really hard call on this.
And if there is a dismissal, the decision won't really address the key issue being followed, which is whether you can sign up for a website and then get charged criminally when you violate the terms of use and cause the requisite damages. Also overlooked is the fact that while this prosecution is being brought for an alleged violation of Federal law, there are many states with similar laws on the books (and frankly much easier to prove up).
One thing is for sure. We are a long, long way from defining the law of "computer trespass", no matter how this case comes out.
FINAL COMMENT: It remains clear, though, that this prosecution has never been, as Public Citizen, Electronic Frontier Foundation, and the ACLU types would have you believe, outrageous and unjustified prosecutorial abuse. Trust me that this case is really just standard fare for attorneys who actually deal with these issues on a regular basis. And whatever the decision, First Amendment extremists can rest assured that the Internet will not be disrupted, the foundation of E-Commerce will not collapse, and the sky will not fall. But it doesn't really help a Judge to be offering up "Chicken Little" legal briefs. Try something new-cut him some slack and don't attack him personally in the press and online if he does not agree with your view of the law or the world.
UPDATE (Monday 11/24/08): Prescient? (No, but a good guess!) The motion to dismiss was taken under advisement by the Judge. Judge Wu indicated Monday he might not rule on the dismissal motion until after a jury verdict.
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