LibertyVoice

As originally reported by Orin Kerr at The Volokh Conspiracy, a federal district judge in California issued an opinion on Friday overturning the jury verdict finding Lori Drew guilty of a misdemeanor violation of the Computer Fraud and Abuse Act (CFAA).  Judge Wu ruled that accepting the government’s theory — and the jury’s finding — that Drew violated the CFAA merely by intentionally violating MySpace’s terms of use would render the statute unconstitutionally vague.  As a result, he granted Drew’s motion for a judgment of acquittal, ending the government’s case against her.  The judge previously announced in July that he planned on reversing the conviction.

In the first part of his analysis, Judge Wu gave the CFAA’s language a broad reading, finding that it could encompass the facts of Drew’s case. The relevant provision of the CFAA prohibits "intentionally access[ing] a computer without authorization or exceed[ing] authorized access" and thereby obtaining "information" from a computer used in interstate commerce. 18 U.S.C. 1030(a)(2)(C). The court found that "accessing" a computer simply means transmitting and receiving electronic signals from it, not working around code-based controls or gaining entry into non-public files or areas.  Judge Wu thought a narrower approach might be "preferable," but found no support for this view in the case law or legislative history. Slip Op. at 17-18.  The court also held that, putting constitutional concerns aside, an intentional breach of website terms could constitute accessing a computer or server "without authorization" or "in excess of authorization."  See id. at 19-22.

From there, the court turned to the constitutional question, noting that criminal statutes must give "fair warning" to individuals of "common intelligence" that the conduct in question is criminal. Id. at 22-24.  The judge cited several reasons why the statute failed to provide sufficient notice that terms of use violations could be criminal: (1) the language of the CFAA doe not explicitly state that it has "’criminalized breaches of contract’ in the context of website terms of service,"  id. at 25; (2) "it is unclear whether any or all violations of terms of service will render the access unauthorized, or whether only certain ones will," id. at 26; (3) website owners would ultimately define criminal conduct — sometimes using vague terms like "unfair" or "sexually suggestive" — and would be able to change the definition with minimal notice to users, id. at 27; and (4) it’s not clear as a matter of contract law whether breaching any particular term automatically terminates the contract and revokes access or simply gives the website owner some other remedy, like damages, id. at 27-28.  

The court explained that treating any and all terms violations as revoking access might solve the vagueness problem, but would transform the CFAA into "an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals" and provide no meaningful guidelines for law enforcement.  Id. at 26-27, 29.  Judge Wu seemed particularly concerned by the prospect of the unbounded statute allowing federal prosecutors "to pursue their personal predilections":

 [I]f every such breach does qualify, then there is absolutely no limitation or criteria as to which of the breaches should merit criminal prosecution.  All manner of situations will be covered from the more serious (e.g. posting child pornography) to the more trivial (e.g. posting a picture of friends without their permission).  All can be prosecuted.  Given the "standardless sweep" that results, federal law enforcement entities would be improperly free "to pursue their personal predilections."

Id. at 31-32 (citations omitted).

The overturning of Drew’s conviction is encouraging for those of us who worried that the awful facts of Drew’s case would lead to bad law on this issue of great importance for every Internet user.  The court’s holding, however, is narrow and only addresses the misdemeanor violation found by the jury.  Judge Wu apparently adheres to his (puzzling) view that the scienter requirement for a felony conviction under 18 U.S.C.  § 1030(c)(2)(B)(ii) — that the "offense was committed in furtherance of any
criminal or tortious act in violation of the Constitution or laws of
the United States or of any State" — eliminates the constitutional objection to criminally punishing Drew for violating MySpace’s terms of use.  Slip Op. at 2.  If I’m reading the first two pages of the decision right, it is only because the jury acquitted Drew on the felony charge that the court felt justified in revisiting the constitutional question.  This leaves the door ajar for future felony convictions based on terms of use violations, at least in Judge Wu’s court.

For background on the case and copies of many of the court documents, see our database entry, United States v. Drew. 

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Last week I discussed the well-known challenge faced by millions of Canadians as they sort through a myriad of cellphone pricing plans in a marketplace still lacking in robust competition.  The subject of this week's technology law column (Toronto Star version, homepage version) is that previously unreported, however, is Industry Canada officials identified much the same problem and worked for years to develop an online tool to address it.

After spending tens of thousands of dollars creating and testing an online calculator designed to help consumers select their ideal wireless plan, Industry Minister Tony Clement killed the project weeks before it was scheduled to launch. Government records suggest intense lobbying this spring by Canada’s wireless companies, who feared the service would promote lower cost plans, played a key role in the decision.

The Office of Consumer Affairs (OCA), a branch within Industry Canada with a mandate to promote and protect consumer interests, was the original source for Which Cell Plan? A Calculator. The calculator asked consumers for detailed information about their current or anticipated cellphone use and then provided them with a detailed list of suitable plans from Canadian providers. In 2008, the OCA paid Decima Research almost $60,000 to conduct extensive usability testing. The company conducted 12 two-hour focus group sessions in Halifax, Vancouver, and Montreal that included cellphone users as well as “cellphone intenders” – those expecting to purchase a cellphone within a year.

Decima Research’s report noted “participants felt being a consumer of cellphones is frustrating and difficult. The service plans of different providers are difficult to compare because they are all different…Secondary frustrations and challenges included the length and limitations of contracts, billing inaccuracies, and quality of service issues such as dropped calls and coverage.” The focus groups’ response to the cellphone cost calculator was positive, with the vast majority of participants indicating they would use the tool and encourage friends and family to do the same.

Yet just as Industry Canada was set to launch the tool, the major wireless carriers began lobbying against it.  According to lobbyist registration records, the Canadian Wireless Telecommunications Association and Bell Canada met with officials from Clement’s office on April 8th, with the association listing telecommunications regulation and consumer issues as the topics of discussion.  Two weeks later, Telus also met with the same officials to discuss consumer issues.

The carriers were apparently concerned that the tool only covered voice services and that it was geared toward lower-priced plans. Sensing that Clement was facing pressure to block the calculator, Canadian consumer groups wrote to the Minister, urging him to stick with it.

Despite months of preparation, thousands of dollars in taxpayer expense, the creation of an effective tool, and the obvious benefits for lower income Canadians, Clement nevertheless killed the project. Given the tool’s potential to encourage more Canadians to adopt wireless services, the decision ironically came just as Clement was meeting with technology executives in an effort to kick-start a national digital agenda. According to an Industry Canada spokesperson, “technical limitations” were to blame.

With public dollars having funded the mothballed project, the government should now consider releasing the calculator’s source code and enable other groups to pick up where the OCA left off.  In the meantime, Industry Canada has posted a cellphone checklist that asks consumers many of the same questions, but does not provide any information on carrier plans or pricing.

Update: CBC.ca covers this story with comments from Industry Canada, PIAC, the CWTA, and Bell. Note that Bell indicates that they did not have a separate meetings on the issue and let the CWTA handle the issue on their behalf. The CWTA reaffirms its support for killing the calculator.

Update II: Catherine Middleton points out the FCC is asking questions about similar consumer disclosures and cost comparisons.

For the London Free Press – August 31, 2009
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