No, amazon cannot decide you're a felon, but...

The Don--who came up with these names?--asked me if I would comment on the Lori Drew verdict. Instead of posting on his blog, I figured I'd post here and link from there, thus keeping all the juicy page views for me and my Google AdWords empire (I kid, I kid).

The general story here is that person did something most folks agree was bad, but since none of our existing criminal statutes really fit the action in question, the prosecutors in the case used the Computer Fraud and Abuse Act to seek conviction for what amounts to a violation of the MySpace Terms of Service. The Don expressed understandable apprehension to the idea that a corporation like Amazon could wield their TOS in such a way as to make site visitors into felons. But first a little context might assist in seeing if this is really a sign of the end of the world, or just another day in America.

Let's start with the concept of trespass law. Now, there are some folks who say trespass law is stupid and people should be able to go where ever they like. If you fall into this group, you can just stop reading now, because I can't help you. But assuming you agree that trespass law is good and proper, you have to ask yourself some questions. Consider your personal dwelling. If someone comes into your house uninvited they are obviously trespassing. It's a clear cut case and criminal prosecutors will have no problem getting a conviction. Let's change the fact pattern slightly and say instead of a house, it's a store with a large public area for browsing the merchandise, and an employees' only area in the back. Now, if someone goes into the public space, they aren't trespassing, right? They have been invited into the space by the owner and are what we in the legal business would call an invitee. But once the visitor goes into the employees' only space, they move from the invitee column into the trespasser column.

The question then is what makes the distinction between the public space where you're an invitee and the private space where you're a trespasser? The answer is private law. In the case of the store it's enforced by a little sign posted on the door to the employee area that says "Employees Only." Two little words, perhaps, but two words backed by the power of the state penal system. Essentially what we've done is say in the law "we think there are some places you shouldn't be able to go, but since we can't specify all those places, we are going to empower private law to specify on a case-by-case basis." Now, of course, there are limits, like clear notice and the moderating force of a jury. I realistically can't imagine a jury convicting someone mistakenly entering into an employee area, no matter how well marked it may have been.

These same principles apply to the internet just as well as they do to the physical word. In fact, there is a rather famous example of this sort of private law backed by criminal law that is clear as day... it's called the DMCA. I wrote a post years ago on this very topic, feel free to read it if you have a moment. Owners of copyrighted materials can seek federal criminal prosecution if you break a "technological measure," which could really be just as simple as a little button that says don't copy me. The slashdot crowd goes crazy over this... how can it be a crime to break such a stupid technological measure, they demand to know! To which I ask, is it any more or less of a crime if I break into a locker with a tiny pad lock instead of a huge deadbolt? I certainly shouldn't think so.

Which brings us back around to the Lori Drew verdict. MySpace makes clear that you are an invitee into their online space so long as you conform to their Terms of Service. The moment you stop conforming to their TOS, you become a trespasser... just as if you had entered into the employees only area. This isn't to say that every violation of an online TOS is going to result in criminal prosecution, because we have prosecutors, judges, and juries all in the business of continuously evaluating what is and isn't worth prosecuting on a day-by-day basis. Just because you engage in felonious acts doesn't make you a felon, or we'd all be in the slammer. What it does mean is if you engage in activity that you know is wrong--even if that activity is solely online--and it ends up with someone dying, you'd best get yourself a lawyer.