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Wednesday, April 11, 2012

Lying and other US Federal Crimes

Recently the Ninth Circuit Court decided that breaking a "terms of service" agreement was not a Federal Crime.  This differentiates "hacking" (willful effort to steal or acquire information) from simply ignoring "terms of service."

Well that's a relief, its always nice to be a little less of a Federal Felon daily...

On the other hand why have "terms of service" at all?  I suppose to boot you off if you misbehave.

On the other hand it probably doesn't matter.

Let's say that the feds just think you are doing something bad so they pay you a visit.

If that visit is inconclusive and they still want at you they can always whip up a charge of "federal lying."

Basically this is any kind of "false statement" you might make.  Of course you might make such a statement without knowing it - say as with this:

Feds: "Did you violate the terms of service when posting X to Facebook?"

You: "No."

But in fact, unknown to you, you did violate the terms - say the picture was a bit racy or stolen from someone else (even unknowingly).

So long as they can show you did something and told them the opposite - regardless of whether you knew or even could no - they can charge you with "lying."

It works because the burden of proof will fall to you.

You'll be arrested and charged and now you will have to pay lawyers to show that your statement was made in ignorance and was not willful "lying."

Good luck with that.

You can read here about Nancy Black who owns a "whale watching" business.  One of her boat captains "whistled at a whale" (according to the article) which is the crime of "whale harassment" (I am not making this up).

She became involved with the prosecutors decided she was "lying" about what happened.  Of course, she maintains, how could she - she wasn't on the boat.

Not matter, the feds charged her anyway and she could face many years in prison if convicted.

But things are even more insane than this.

A new law before the US Senate will make it a Federal Crime to embed an "infringing video."

Like that new dance step video so you post it to Facebook - boom - you're a federal criminal.

So the internet is becoming a tools to ensnare people in federal crimes.

In past, as I have written in this blog, law involved mens rea - the notion of intent.

Say I am in your store and we are discussing a potential purchase.  On the counter are laid out several items.  Suppose I accidentally walk to the restroom (or out the door) with one in my hand.  Did I intend to steal it?  The legal use of mens rea (guilty mind) for theft is clear - I have to intend to steal it.  Its not a crime if is simply a mistake.

On the other hand, these new laws don't involve mens rea at all.  Simply performing an act, such as embedding an "infringing" video on a blog or Facebook page, is the crime.  No "intention" is involved.

So even you child can be a federal criminal.

Just logging into Facebook could ultimately be a crime if "infringing" images or videos appear.

How nice.

Leave it to the US and its lawyers to make the internet a tools for generating legal fees.

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