The New York Times reports today on the verdict in a rather high-profile cyberbullying case in which an alleged adult (okay, she’s 49, but her behavior was unbelievably immature) was bullying a young teenage girl to such an extreme that she eventually killed herself.
The case is an interesting example of the old legal truism that bad facts can make for bad law.
There is no question that the woman’s behavior was appalling. She set up a MySpace page posing as a teenage boy and positively hounded the poor girl, saying all sorts of horrible things about her. Classic cyberbullying behavior unusual only in that it was an adult bullying a teenager, rather than the far more common peer-level bullying.
And there seems to be no doubt that there was a direct connection between this bullying behavior and the teenage girl’s suicide.
So it is by no means a stretch to think that there ought to be some sort of legal consequences for the girl’s adult tormenter.
What is unusual and somewhat disturbing (for yours truly who, let’s face it, is blogging under the most blatant pseudonym possible) is that apparently the guilty verdict in the court case turned on the fact that the adult violated MySpace terms of service by failing to provide accurate information about herself when establishing the profile. The defendant was not convicted for bullying, but for computer fraud. According to the New York Times:
Ms. Drew’s creation of a phony profile amounted to “unauthorized access” to the [MySpace] site, prosecutors said, a violation of the Computer Fraud and Abuse Act of 1986, which until now has been used almost exclusively to prosecute hacker crimes.
Let me say that again: criminal liability not for the bullying behavior itself but for the provision of false biographical information on a MySpace page in violation NOT of the law itself but of MySpace terms of service.
For those who have never explored the links running down the left column of this blog, let me point one out to you: the link to my MySpace page.
Like my blog, it is under the name “jane doe” – and that is the name I gave to MySpace when I created the profile. I also used a fake birthdate – April 1, 1968. The April 1 was because April Fool’s Day seemed like an amusing birthday for a fake identity, and the 1968 was because that was a much more interesting year from a political and social perspective than 1966, which is the year I was actually born.
So fake name and fake birthdate. Oh, and at the time I created the profile, I was still living in Redstatesville, which is not in Colorado, so I gave fake geographic information as well.
Now, arguably one could say that since I blog under the jane doe pseudonym and may ultimately retain that pseudonym for non-blog related creative projects (art and writing) that I am presently working on, my use of that name for the MySpace profile has some legitimacy.
There is also the fact that I am not using my MySpace page to hound some poor teenager to suicide working in my favor. So one might think the greatest risk to me would be the deletion of the MySpace profile if the MySpace people ever get around to noticing it – though blogger Jon Swift faced a similar problem with Facebook and got the company to reinstate the pseudonynmous profile.
Here’s the thing that troubles me, though. As previoiusly noted, we are seeing legal liability – apparently misdemeanor-level criminal liability – that is hinging not on the law but on MySpace terms of service.
Which kind of has me wondering what would happen if one of the politicians I have criticized over the past two years were to take issue with my opinions? Could he or she make the case that I should face criminal charges for exercising my first amendment right to criticize government officials, simply because I used my pseudonym to create a MySpace profile which I link to from the blog that I also write under said pseudonym? Hell, for all I know, I’m in violation of WordPress’s terms of service, too – I honestly don’t even remember what information I had to give when I established the blog. I think I just had to provide an e-mail address. But of course, my e-mail address for both the blog and the MySpace page is also – you guessed it – under the name jane doe. So I may be in violation of Inbox.com’s and Gmail’s terms of service, too. I could be looking at a life sentence here.
Does this seem improbable? I hope so. Certainly it seems less likely to happen or be tolerated under an Obama presidency than under the current alleged president.
But as I said at the outset, bad facts make for bad law. Here, what the woman in the cyberbullying case did was so clearly inappropriate, and the outcome so drastic given the girl’s eventual suicide, that prosecutors and jurors alike would want to impose some sort of punishment. And they likely would not be considering the potential ramifications for the way they got that punishment imposed.
And now we all have to live with their decision.
According to the Times, the defendant will be appealing the lower court’s decision. But appellate judges, and Supreme Court judges, for that matter, are nearly as likely to fall victim to the “bad facts make bad law” truism as the lay people serving on a jury would be – and some would say they are even more likely to.
There are a lot of reasons why people create fake identities for online use. Some, like me, create a pseudonym in order to avoid problems at their place of employment. Some merely want to reduce the risk of identity theft. And sometimes, a fake identity can literally mean the difference between life and imprisonment or death – ask the bloggers in Burma who wrote about the protests by Buddhist monks and the government’s efforts to stifle same. Assuming you can find any of those bloggers, that is. Assuming the Burmese government didn’t get to them first.
Oh, but that can’t happen here, I hear you say.
And to that I say – consider how many different ways the Bush administration has violated the laws and constitution over the past eight years. Consider the various tactics they used against political opponents – we’re talking about an administration that outed one of its own covert CIA agents, endangering not only her but her entire intelligence network in foreign countries. Consider the fact that they ordered individuals tortured, and authorized the program of “extraordinary rendition” in which they essentially kidnapped individuals and sent them to other countries for “interrogation” – interrogation that included torture.
Can’t happen here? Hell, I’m kind of surprised it hasn’t already happened here.
At least as far as we know.