Dozier Internet Law: MySpace Hacking Indictment Well-Supported


By John W. Dozier (Super Lawyer in the Law of the Internet)


The federal prosecutors in California obviously did their legal research before asking the grand jury to indict under the Computer Fraud and Abuse Act in the myspace.com suicide case. I don't like the statute's seemingly over-broad reach. I've criticized the statute in the past for the very same reasons some of the free speech liberal commentators object all over the airwaves today. The difference, however, is that I don't pretend to make the law mean what I would like for it to mean. It is what it is. And, as it is written, the prosecutors believe they are right, I think they are right, and the 9th Circuit does too!


Wonder if the prosecutors read my blog entry from last June about Dozier Internet Law and our view on the law of hacking? And I wonder how many of these law professors and talking heads on TV have ever tried a hacking or unauthorized access case? Maybe the prosecutors are new to this, maybe they aren't. But at least they did their legal research. Commentators, particularly the "free speechers" expressing outrage over the indictment, should be so diligent. There's at least one law professor so outraged he is offering his legal services for free. A little research, Mr. Professor, may be in order.


Here's why:


California is in the 9th Circuit. I suggest anyone interested in commenting on the case who also wants to sound somewhat knowledgeable read the Middleton v. US case decided by the 9th Circuit. I suspect the prosecutors will use this case to argue that unauthorized access causing damage or loss has already been recognized as a crime in the 9th Circuit. Lay on top of that decision another 9th Circuit case, Creative Computing v. Getloaded.com, which Dozier Internet Law argued before the 9th Circuit, and you can see that the rationale the prosecutors are using has already been established in the 9th Circuit Court of Appeals in a couple of decisions. The trial court HAS TO follow this case law from the 9th Circuit Court of Appeals! Anywhere else in the country and they would not have a trial court bound by this precedent. Smart prosecutors, I would say.


Visit the Dozier Internet Law Hacking page on our site and you can see that our interpretation has always been that such access in violation of a user agreement or terms of use violates not only the CFAA but also many, many state computer crime laws. For those who think that the CFAA applies only to damage to a computer, read the code sections again. And for those who believe that a damage or loss could not include personal injury or death, view the expansive definition of "loss". How could this statute evolve since its passage in the late 1990s to be so inclusive today? 9/11 and the Patriot Act, frankly. You can research the changes that were made to the law, review the legislative history, and read the Computer Fraud and Abuse Act from top to bottom. You may even want to re-read the Dozier Internet Law Hacker Blog Entry from last June in which I made the same points the prosecutor will likely be relying upon, and described a criminal hacking trial for which I was lead counsel in which the Judge also found that violating a terms of use is unauthorized access (won on other grounds).


No, this is not an unprecedented case. The FBI and Department of Justice recently raided our client's offices in Florida based on an alleged website user agreement violation. Another FBI investigation targeted a client for doing the same thing in Northern California. The concepts may seem novel or unique to those feigning expertise in this area of the law. But, the indictment is likely well grounded in law, and I am not surprised at all that the prosecutors brought charges under the CFAA. Particularly in California and the 9th Circuit.


The lesson, of course, is that those contracts you agree to online are binding, and those abusing a website and joining the world of online scofflaws had better watch out. I still don't like the statutes that associate hackers with non-malicious unauthorized access. But, no matter how hard the left wing, free speech commentators try, they can't change the law. They see it as they want it to be. We see it as it is. And it is what it is! Ask the 9th Circuit.

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