Are sockpuppeteers computer criminals?

“fraudulently induced consent is consent nonetheless“
That is certainly a bizarre argument. It would make anti-hacking law meaningless: if you could sucessfully hack into a system and impersonate its administrators by any means – code injection, buffer overrun, whatever – that would be legal, regardless of the intent of the administrators.

I remember when the UK had no Computer Misuse Act, so people were prosecuted for “theft of electricity”.

The UK also has the novel solution to the “anti-social or criminal?” conundrum: the ASBO.

Several years ago, I did a little work on a couple of cases where an ISP attempted to sue spammers under a somewhat archaic tort theory, “trespass to chattel” — essentially, touching, albeit not stealing, someone’s stuff without their permission. (The pre-computer cases here are all from 1910 or so, and involve someone moving a wagon to an inconvenient location so the peach crop spoiled before it could be brought into town. That’s not accurate, I haven’t looked at this for years, but that sort of thing.) This is tort, not criminal liability, but it’s a similar issue — the offense as described in generic terms seems impossibly trivial, but spamming can cause a great deal of monetary damage, and there has to be some way of recovering for it.

(I did very little work on these cases, and don’t actually know how the law’s developed since the work I did, so this really shouldn’t be relied on as any sort of statement of American tort law.)

Any new legal theory that Orin Kerr supports must be bad, or he wouldn’t support it.

Which is not to say that this particular case should be settled one way or the other. But “fraudulently induced consent is consent nevertheless” is typical libertaria.

Is there any way to parse NO LAW as anything other than an absolute prohibition?

No, but “abridging the freedom of speech” leaves plenty of room for parsing.

If you go into a bank, and say to the teller, “I’ve got a gun–you money or your life,” you will be convicted of bank robbery, despite the fact that you’ve done nothing other than speak, just to give you an example that even the most dedicated defender of free speach would be unlikely to defend.

Lemuel, reading your link suggests you weren’t breaking that law, as you have to fit into one of the categories of part b, which a normal protest or whatever you were doing shouldn’t be in breach of.

Just to be clear because this is a subtle point. The first amendment guarantees (or did) freedom of speech. It does not guarantee that you won’t be prosecuted for events that happen as a result of that speech.

Right now we have a number of thought crimes on the books. These take the form of conspiracy and assisting “terrorism”. So when a bunch of guys get together and say they would like to blow up the Sears Tower even though they have no intention to do this, nor the means, nor the opportunity they get charged with conspiracy.

It wasn’t even a threat which would require some sort of overt action like waving a bomb around.

Similarly the press has allowed itself to be cowed by the government and now self censors itself even when it has evidence of official misconduct. NY Times reporter Erich Lichtblau uncovered the warrantless wiretapping story and the paper suppressed it for a year until he was on the verge of releasing it in his book. Who was served by this censorship? Then after the story came out Congress violated one of the precepts above by passing retroactive legislation to shield those who participated.

When asked, something like 50% of the population don’t think free speech is a good idea. So much for the way our civics courses are taught.

Prosecutors are always tempted to invent new legal theories when they realize they can’t get a straightforward conviction. But supposedly we pay judges to put the kibosh on such creativity. Unfortunately not enough of them do their jobs.

the local ordinance mentioned by Lemuel at No. 9 above was aimed at the Ku Klux Klan.

The similar ordinance in Philadelphia was aimed at protesters at the 2000 Republican National Convention.

Kaczynski is “locked up indefinitely without trial”? Didn’t he plead guilty?

There must be many bloggers out there who are hoping that the Drew case will help put federal enforcement behind the terms of their blogs. The more likely results of the Drew case will be a dilution of federal laws governing such terms. Drew has not been sentenced yet, btw, and it is unlikely that she will go to jail for violating MySpace’s terms of service.

There are so few laws covering the use of e-technology and, even before the Drew case, users could be prosecuted, as pointed out above, using clever application of broad and archaic legislation. New legislation is aimed more at ‘cyber bullying’, which may give some protection to users, even sock puppeteers who are bullied or harassed online.

As usual, news reports about the case have muddled the actual arguments. If you read the circumstance of this case, the law Drew allegedly violated, and the case Kerr refers to People v. Donell( 32 Cal. App. 3d 613; 108 Cal. Rptr. 232), you will discover that the idea is this: unless a criminal law specifies that fraudulent conduct mean that consent was not granted, the fact that consent was granted via fraud does not mean that consent was not granted. Put differently, if the law says “no one can access a computer without permission” and I get permission by pretending to be someone else, I have not broken the law since I got permission, but did so fraudulently. The law Drew allegedly violated refers to a person who “intentionally accesses a computer without authorization or exceeds authorized access.” MySpace created an account, which authorized Drew to access the servers. MySpace may have a civil complaint against Drew for violating its terms of service, but there is no criminal act because the law did not specify that, if access was obtained by fraud, it was illegal.

If I went to MySpace and brute-forced my way into Quiggen’s account, I would have unauthorized access. But if I go to MySpace and register an account in Quiggen’s name, MySpace has authorized my access although I have acted fraudulently.

Let me be more specific. Kaczynski wished to defend himself at his trial; the state did not wish this, but insisted that he must use public defenders, who wanted him to plead insanity as his, they said, only hope for evading the death penalty. Actually, there was also a professional lawyer Kaczynski wanted who was willing to make a political defense and to work pro bono: Tony Serra. Kaczynski was denied the counsel of his choice and required to use court-appointed lawyers. He wished not to plead insanity, but to defend his actions. His lawyers regarded this as itself evidence of insanity. There was the beginning of a trial, but the trial was halted, because Kaczynski would not accept the court-appointed representation, and the court did not want to give him a forum for his ideas (and public officials said so; even the judge said he did not want to make the trial a “suicide forum”). The court solution was to drop the death penalty and cancel the trial in exchange for a guilty plea, so Kaczynski’s lawyers were wrong: he got what they said he could get only by admitting insanity without admitting such.

I think it is illegal in the US to go about masked

Hardly anywhere, really. There was some fun maybe 2 years ago with these new zippered hooded sweatshirts that zip up over the head, upward between the eyes, so that the face is covered with this light fabric that you can’t very well see into but can be seen out of, more or less. Very cute idea. I thought the ones with generic smiley faces on the mask fabric were especially inspired. Anyway, the kids (adolescent) who’d normally wear dragon-design tee shirts were completely thrilled by this. About half of the wearers were this group of kids (who frankly wouldn’t know how to create trouble without a networked computer), not quite half were genuine violent-to-property troublemakers, and a few were kids who wore the mask-jackets just because they were itching to be told to not wear them. About a dozen in all, out of a population of +/- 500.

Our school district required hoods-down while in school (equivalent to “no masks in school”) and the requirement was upheld in a challenge to the policy (one of the kids just itching to feel oppressed was the challenger). However, you’d see kids in these things out in public all the time, no problem. The sheriff admitted there was nothing illegal about wearing them, even if the kids were just rummaging about town stirring up trouble, but laughed off his own irritation: “there’s no better way for them to get my attention” and scrutiny, he said, “it’s like wearing a hovering billboard that says WATCH ME floating over your head” (probably not his exact words, but my memory of the mixed metaphor is intact).

I think there might’ve been some talk of considering the masks a sign of gang participation after the group of hooligans trashed a flush toilet in the local Subway and no particular one of them took the blame. There was this idea floating around that maybe the whole group could be charged with criminal conspiracy, but given that the entire group was allegedly witnessed all crowded into the one-person stall at the time of the incident, I don’t think their wearing of masks would be necessary to prove group responsibility. Everyone knew who they were from their incessant bragging about it for weeks afterward.

Anyway, no permit required to wear a mask, etc. I’d bet local jurisdictions differ wildly, so generalizing US policy would be impossible.

‘You would think the muslim veil would fall under this category in the West. ‘

No I wouldn’t. Covering your hair is not the same as covering your face.

‘In Muslim countries women are not encouraged to go out unescorted,’

Depends what you’re counting as a Muslim country. Its not true of the country where I live which is majority Muslim in terms of population but politically and administratively secular.

“Why is it not possible to simply lock Lori Drew up as a nut?”

Because it’s very difficult to lock up anyone as a “nut” in in the USA, due to extensive abuse of the practice in the period 1900-1970, often directed at women. In Oregon it is not possible at all. It is probably just as well the state or family cannot arbitrarily deprive anyone of their freedom, but I do wish it was possible to do so after a trial of some sort.