Offensive behaviours - distortions

Careful WithThat Fake Social Networking Profile; If You 'Personate' Someone, You Can Go To Jail(TechDirt, 02 June 2010) - the article is critical of the offence: it should not be criminal to impersonate somebody on Facebook in California. I tend to disagree. Using the name of somebody can be criminal whatever the motives. French law considers that the simple use of a name is an offence, although a minor one. But the conjunction of using another's name with fraud notably is in most jurisdictions a crime; why not for a fake webpage if this webpage has not been intended as a work of fiction but as the description of someone's life and thoughts? Of course, torts may be a better tool to deal with such issues, but criminal law cannot be excluded per se.

On the other hand, criminal law cannot be misused just because the behaviour is wrong and does not fit other crimes than hacking for example. Mom Who Used Son's Facebook Account Found Guilty Of Online Harassment (TechDirt, 28 May 2010). what she did was hardly constitutive of harassment: she accessed his account, changed the password and used the Facebook account...

same for banning sentences or pre-trial measures, a "Guy Who Encouraged People To Commit Suicide Online Banned From The Internet" (TechDirt, 27 may 2010), but this is far too broad a measure

Hyping issues up: distortions when it comes to internet

1 - "The Real Problem With Internet Comments Isn't Anonymity" (TechDirt, 12 April 2010). That I would agree; people before internet could be anonymous for the better or for the worse (blackmail...). They could also be discovered and were accepting the risk; so why not now? Why the internet should change anything in us allowing anonymity? What we need is better education for people to understand the impact of their behaviours and better policing, but not an end to anonymity.
"Judge Who Was Revealed As Anonymous Commenter Sues Newspaper For $50 Million" (TechDirt, 8 April 2010)
"Israeli Supreme Court Says There Is No Legal Way To Reveal Anonymous Commenters Online" (TechDirt, 1 April 2010)
Columnist Claims Anonymity Is Bad For Our Country (TechDirt, 31 March 2010)


2 - "Dear Journalists: There Is No Cyberwar" (TechDirt, 9 April 2010). I don't completely agree. Governments use and will use the new technologies to attack and the disruptions will be different.

3 - As Cyberbullying Moral Panics Heat Up, Actual Rates Of Cyberbullying Decreasing (TechDirt, 9 April 2010). Well yes and no. Cyberbullying is a problem like its off-line version, but it is probably not so much of a problem as it is made up.

Similar distortion in the understanding of the law in order to catch behaviours we find offensive but which are not necessarily legal:
Son Gets Mom Charged With Harassment Over Facebook Account Hijacking (TechDirt, 8 April 2010) - apparently, the son lets the computer logged in; that is unauthorised access in the UK!
And if this is true, it is even worse: Sarkozy Kicks Off Criminal Investigation Into Blog/Twitter Reports He Had An Affair (TechDirt, 7 April 2010)

4 - or distortion in the use of the law: "Court Says President Bush Violated Wiretapping Laws With Warrantless Wiretap" (TechDirt, 31 March 2010) with Wired having published the decision from NorthDistrict Court of California http://www.wired.com/images_blogs/threatlevel/2010/03/walker.pdf

This affair echoes two others about procedure and the difficulties to conceptualise it:
"Leaving Your WiFi Open Decreases Your Fourth Amendment Rights To Privacy?" (TechDirt, 10 February 2010) - I can't see how there is less privacy if you leave your mobile phone or your landline accessible to people from the outside
"Duh, Don't Leave A Thumb Drive With Child Porn Plugged Into A Shared Computer" (TechDirt, 22 April 2010) - no expectation of privacy for a US court when the thumb drive is plugged in. I would agree (like Masnick and unlike Kerr with whom I seem to disagree quite a lot - he writes on VWs). Kerr argues the thumb drive is like a suitcase in a public space; inaccurate if it is plugged in as everybody can see what's in it, like an open suitcase (aka Masnick).

and see "Les points-clés du projet de loi Loppsi" (LeMonde, 09 February 2010)

Interpretation of traditional offences

Three scenari demonstrating how the internet affects the interpretation of criminal law

Sexting: no child porn for the US courts
"Court Rejects PA DAs Attempt To Charge Teens For Sexting Themselves", TechDirt, 18 March 2010 - The court is right in legal terms. The child porn offence was meant to protect children against others (and adults) rather than against themselves (and their peers). But morally and practically, it is not satisfying. The DA could have used the money spent in prosecuting differently? I think this is one of the offences most deeply affected by our ways of consuming the new technologies

"California Court Says Online Bullying Is Not Protected Free Speech" TechDirt, 19 March 2010. Decision justified as long as the "bullying" fits the definition of harassment; calling somebody a jerk without a pattern of abuse is no harassment.


"ACS:Law Now Using Dubious Legal Theories To Threaten Slyck.com", TechDirt, 22 March 2010. It is not so much the headline that interests me than the details of the article: NY has passed a legislation to avoid forum shopping in liber law. In effect, libel decisions from foreign jurisdiction are unenforceable on its territory. This destroys the idea that one can be liable from anything published on the web by any jurisdiction; indeed, a condemnation can only be enforced if the country of residence accepts the enforcement! Remains the issue of the trial by abstentia and the difficulties the person may have to travel to the country who took the original decision as traditionally, stepping on one's territory is to accept its jurisdiction. So the ban is enforced differently!

But for no change in the law, just change in illegal methods to act: "Disgruntled Ex-Auto Dealer Employee Hacks Computer System To Disable Over 100 Cars" TechDirt, 18 March 2010

Misuse of criminal law

Student Found Guilty Of 'Disturbing The Peace' For Sending Nasty Political Email To Professor Techdirt: "Student Found Guilty Of 'Disturbing The Peace' For Sending Nasty Political Email To Professor" (TechDirt, 18 June 2009)

How sending an e-mail can breach the peace, I am puzzled. It was not a collective e-mail, say to the whole of the University, what would have justified (maybe) the analogy of the public forum. At most, the e-mail, if repeated at least once, would fall within harassment, but certainly not breach of the peace.
Disciplinary actions might also be foreseen if the university charter of conduct was breached

Cyberbullying: worth criminalising?

I just thought that this post was well written and interesting for lawyers. It asked the basic questions before legislating once more: are they already some offences? do they fit the facts or can they without the definition being distorted? is it worth creating a new crime or do we respond emotionally to an issue rather than with objectivity?

"What is Cyberbullying Anyway?"(TechDirt, 11 May 2009)

The law, especially criminal law, has symbolic aspects. But in no way should it be distorted or used purely on those grounds... Justice is not simply about appearing to defend the victims. "Prosecutors Want To Give Lori Drew 3 Years In Jail For Symbolic Reasons" (TechDirt, 7 May 2009)

Criminalisation -

Well, it might be new for West Virginia, but in some countries it's not. Posting false information can indeed be defamation, but also a misdemeanour depending what one views as important or not.

"West Virginia Looks To Criminalize Online Harassment" (TechDirt, 1 April 2009)

For piracy, I would agree that the laws are inadequate because the principle they try to enforce is outdated. Thus both Sweden and France should have thought twice.
"Swedish Antipiracy Law Goes Into Effect... Internet Traffic Drops" (TechDirt, 1 April 2009)

Harassment online - being a jerk and beyond

As already notices in an earlier post, there is nothing to forbid online harassment to fall within the current legal definition of definition. Harassment traditionally involves repeated behaviours or course of conduct in terms of speech or physical actions which causes distress, the victim feeling harassed. Whether one uses a fake identity or not is no obstacle to acknowledge liability as long as the mens rea is there.
That mechanisms to report abuse also exist is the least that can be done...

"What's The Goal Of Anti-Cyberbullying Moves?" (TechDirt, 19 December 2008)

"Missouri Prosecutors Going Overboard In Bringing Cyberbullying Cases" (TechDirt, 22 December 2008) and on the legislation previously passed, "Missouri Makes Online Harassment A Felony" (TechDirt, 2 July 2008)

"Reporting Bullies Online: Helpful Or Not?" (TechDirt, 15 October 2008)

For an example which escaladated to criminal damage and fear of violence, see the chinese online version of mobbing... "Man Wins Lawsuit Against Online Vigilante Mob In China" (TechDirt, 22 December 2008)

But for misuse of legislation... "How Is It Cyberbullying When Students Are Exposing Teacher Abuses?" (TechDirt, 31 December 2008)

Cyberbullying, discipline and crime

Cyberbullying is already an offence as long as it fits within the definition of harassment. So no need of any new offence. And like all crimes, it can give rise to disciplinary sanctions. And like all disciplinary sanctions, a lot of interpretation is given to the disciplinary institutions. Nothing new, everything under scrutiny by judicial review. It is especially with the ECHR artilce 6.

"Student Sues School For Suspending Her Over Facebook Group" (10 December 2008) I wonder to which extent the article confuses legal issues and factual issues (whether there was bullying or not)

Facebook and harassment claim

An odd case, which facts are not yet very clear, at least for me. It seems that M. Hurst did a search on the internet about his ex-girlfriend and was added on the list of requests to be her friend on Facebook; she denied and then complained to the police who charged him with harassment under the 1997 Harassment Act. Well, on those facts alone, it is hard to believe that the prosecution could have any chance to win the case. So it begs the question of why it all started and spent the taxpayer's money on a charge unlikely to succeed?

See "First 'Facebook harassment' defendant cleared" (27 March 2008)http://www.theregister.co.uk/2008/03/27/facebook_birmingham_harassment_cleared/

and with more details, the Birmingham Post (27 March 2008) http://www.birminghampost.net/news/west-midlands-news/2008/03/27/ex-boyfriend-cleared-of-facebook-harassment-65233-20681245/

Anonymity and fighting harassment and libel

In the US, Kentucky lawmaker filed a bill to make anonymous posting illegal. The website operator who would fail to enforce the law (i.e. let somebody posting without identifying him/herself) would pay a fine.
there are two problems here: first, free speech; anonymity is a key feature of free speech. See previously anonymous mail which can be bad or good. Secondly, criminal policy: is it the best way to fight bullying to require loss of anonymity? (10 March 2008) http://www.techdirt.com/articles/20080310/110506493.shtml

Compared with the following, it is interesting to see that readers of websites sued the website owner/operator, along similar lines as proposed by the bill above. But they did not succeed (action dropped) and are even now a target of a lawsuit for libel, for the website owner losts his job because of the damage the first legal action brought. Which raises incidentally the question of the presumption of innocence! (10 March 2008) "When Law Students Get Angry... Lawsuits Get Filed" http://www.techdirt.com/articles/20080310/014651487.shtml

And where the above idea becomes interesting is when are at stake websites ranking or rating individuals for their performance in their job. Libel is obviously a danger; but this is only part of the iceberg: harassment and personal vengeance could be coupled with anonymity and give extremely hurtful results for the people targeted. Contrary to the author of the following post, I do not think accountability can be achieved via websites of this sort. There is no control on facts, no procedure to promote fairness; whatever an individual has done, s/he cannot be deprived of fairness of procedure. Otherwise, we become like those monsters we are supposedly fighting. (10 March 2008) "Police Accountability Is A Good Thing" http://www.techdirt.com/articles/20080305/075621447.shtml
The French courts clearly took the opposite view from the author of the above article. They ordered a website ranking teachers nominally to stop publishing the teachers' names, thus taking away the whole interest of the website. The co-founder of the website Stephane Cola is obviously unhappy and considers there is a breach of freedom of speech, making a parallel with ranking institutions, but I think the issues are muddled here. It's OK to rank institutions who have no career as such and have a duty of accountability to all; but to rank an individual whose career and privacy is directly at stake with no chance to put things right reaches an other level.
Sorry the article is in French "La justice dit non aux noms des professeurs sur Note2be" (3 March 2008) http://www.01net.com/editorial/372605/la-justice-dit-non-aux-noms-des-professeurs-sur-note2be/

old crimes, new bottles...

To borrow the famous expression from David Wall, here is another example of how crime can be resilient and take new shapes with a new name: wi-fi piggybacking or the unauthorised use of electronic communications, just to get free access (but what if it goes further by the way?)
http://news.zdnet.co.uk/communications/0,1000000085,39290850,00.htm
with an update on December 14th 2007 http://www.techdirt.com/articles/20071214/150940.shtml

And the emergence of botnets, showing how one cannot help using new technology for our old crime of fraud...
http://news.zdnet.co.uk/security/0,1000000189,39290694,00.htm
and http://news.zdnet.co.uk/security/0,1000000189,39291184,00.htm (30 November 2007)
and Stephen Fry's article (yes, humour does not prevent knowledge of technology!!) http://www.guardian.co.uk/technology/2007/nov/17/stephenfry.security

More dramatic is the case of this girl in the US who committed suicide after what might be considered as harassment from a fake character in Facebook. The case is exploding all our concept of victim and perpetrator... http://www.techdirt.com/articles/20071210/005356.shtml (10 December 2007)