Criminal Justice

Feds' Online Snooping Reveals Evidence of Crimes, Possibly Including Their Own


Federal investigators are lucky that a judge rejected U.S. Attorney Thomas O'Brien's claim that violating a website's terms of service constitutes unauthorized computer access under the Computer Fraud and Abuse Act. According to O'Brien's theory, which the L.A.-based prosecutor used to pursue charges against a Missouri woman for her involvement in a MySpace prank that seems to have precipitated a girl's suicide, investigators who disguise their identities or otherwise provide false information while searching for evidence at social networking sites are committing federal crimes. A.P. reports that such online trickery is common, citing a recently released Justice Department document that "describes the value of Facebook, Twitter, MySpace, LinkedIn and other services to government investigators." Some of the investigative techniques, such as checking fugitives' Facebook pages for clues to their whereabouts, seem unobjectionable. Others, such as impersonating friends or relatives to obtain evidence, are more problematic. When the trolling involves otherwise confidential communications stored by website operators or ISPs, federal law requires investigators to obtain a warrant.

Clarification: I was highly critical of O'Brien's grandstanding, law-twisting prosecution, which threatened due process by pushing an interpretation of the statute that would make almost every Internet user a potential criminal. I am not advocating federal prosecution of people who violate websites' terms of service, even if they happen to work for the federal government.

[Thanks to Tricky Vic for the tip.]

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  1. I’ve been of the mindset that a certain percentage of trolls here are members of the REASON staff amusing themselves during their workday.

  2. Are you seriously advocating that violating TOS should be a criminal matter?

    1. I’m pretty sure Jacob is implying that the Feds — or at least the USAO for the CDCA — has argued that violating a TOS can constitute a violation of 18 USC 1030, and that the government could find itself hoist on its own petard.

      1. Gunnels?

      2. FYI – 1030, also known as the Computer Fraud and Abuse Act, explicitly exempts Law enforcement personal conducting investigations from any liability.

        Just remember, they’re the only ones…

  3. When tweets can make you a jailbird
    By RICHARD LARDNER , 03.16.10, 02:51 PM EDT

    WASHINGTON — Maxi Sopo was having so much fun “living in paradise” in Mexico that he posted about it on Facebook so all his friends could follow his adventures. Others were watching, too: A federal prosecutor in Seattle, where Sopo was wanted on bank fraud charges.

    Tracking Sopo through his public “friends” list, the prosecutor found his address and had Mexican authorities arrest him. Instead of sipping pina coladas, Sopo is awaiting extradition to the U.S.…..sinessnews

    1. What I don’t get is how in this day and age anyone could be this stupid. I have a friend who is going on vacation (I read it on her facebook page) and all I can think is that she is announcing to the worrld that her house will be sitting empty.

      1. Only if her profile is open to anyone.

        1. There’s always the friend of the friend.

          I tell my wife to keep the chatter about our vacations and finances to a minimum.

          1. See, I just keep a rabid badger in my place while I’m gone, and and I don’t have to worry about this problem. I’ve been thinking about upgrading to a rabid Gene Shallot, though, because the badger makes a hell of a mess and isn’t even remotely as scary as rabid Gene Shallot.

            1. How much is Gene Shallot going for these days?

            2. As if Shallot won’t be making a mess. I bet you believe Obamacare will save money, too.

              1. If Gene makes a Messy Stench, he will be in a world of Hurt Locker.

                1. He’d serve as your Avatar for Alvin and the Chipmunks.

  4. “”Are you seriously advocating that violating TOS should be a criminal matter?””

    No. He’s saying the LEOs involved could be violating the Stored Communications Act.

  5. “”A former U.S. cybersecurity prosecutor, Marc Zwillinger, said investigators should be able to go undercover in the online world the same way they do in the real world, even if such conduct is barred by a company’s rules. But there have to be limits, he said.

    In the face-to-face world, agents can’t impersonate a suspect’s spouse, child, parent or best friend. But online, behind the guise of a social-networking account, they can.””

    So they can hijack your relatives page and pretend to be them. Nice.

  6. Just another little reminder to me that the privacy risks outweigh the “benefits” of having a Facebook profile.

  7. I am not advocating federal prosecution of people who violate websites’ terms of service, even if unless they happen to work for the federal government.

    But that’s just me.

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