The MySpace Opinion is Here!
As I blogged about before, it is not a crime to violate MySpace’s terms of use. And, now, there’s a judicial opinion that sets forth the court’s reasoning!
Here’s the key language:
[T]he question is whether individuals of “common intelligence” are on notice that a breach of a terms of service contract can become a crime . . . . Arguably, they are not.
And, as any good student of fair notice jurisprudence knows, if it’s arguable that a course of conduct isn’t within the scope of a criminal statute, the constitution says the conduct isn’t subject to prosecution.
Thus, the court concludes that,
Treating a violation of a website’s terms of service, without more, to be sufficient to constitute “intentionally access[ing] a computer without authorization or exceed[ing] authorized access” would result in transforming section 1030(a)(2)(C)
into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals.
The opinion is thorough in its analysis and makes a number of great points. My hope is that this is a high water mark in federal government over prosecuting, but my fear is that this case will be cited a lot. If you’ve read this far, you should probably check it out.
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