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Lindsay Lohan Violated Facebook's Terms of Service
by using the name Lindsay "Ronson" instead of Lindsay Lohan, the Los Angeles Times reports. I believe the U.S. Attorney's Office in LA has jurisdiction to prosecute this one, too.
Frazzled_Law_Student:
I should definitely be preparing for exams instead of reading this blog ;)
12.5.2008 6:17pm
Curt Fischer:
So is she a felon or just another run-of-the-mill misdemeanor criminal?

I guess it depends on whether she read the TOS? (Or alternately, maybe she could argue that she believed her real name was actually Ronson?)
12.5.2008 6:18pm
Andrew J. Lazarus (mail):

Or alternately, maybe she could argue that she believed her real name was actually Ronson?

Not after Prop 8.
12.5.2008 6:24pm
Ex-Fed (mail) (www):
It's probably just a misdemeanor, completed when she (1) broke the terms of service using a name other than her own, and (2) by doing so, gained information (such as, for instance, access to looking at profiles she could not view if she were not a member).

If she did it in order to commit a tort -- for instance, so she could spread false rumors about, say, Britney Spears, hypothesizing for the moment that it is possible to defame Britney Spears -- it would be a felony.
12.5.2008 6:28pm
Oren:
Consider the county DA gave her 1 day in jail for the combined offense of a DUI (2nd in two months, ended in a crash) and possession of cocaine*, I wouldn't be too angry if the Federal DA slapped her around a bit.

* “She’s getting what everyone else would get”: Deputy District Attorney Danette Meyers. Yeah right.
12.5.2008 6:28pm
Oren:
Correction, she got 96 hours, minus 24 already served and 48 hours credit doing 10 days of community service. Of course, 96 hours in jail is a mandatory minimum for a 2nd DUI in the great state of California.
12.5.2008 6:31pm
Mike& (mail):
It's a shame that courts do not give class of one equal protection claims in criminal court; or they distinguishes cases in immaterial ways.

Either everyone who is caught should be prosecuted; or no one should. That's equal protection.

As it stands, Lori Drew was selectively prosecuted for a crime thousands of others have committed. Her prosecution was unfair, and indeed, is unconstitutional in the most fundamental sense. Does it really get much more fundamental than equal protection under the law?
12.5.2008 6:38pm
OrinKerr:
Ex-Fed,

The "current Feds" are much more creative than that. Lohan entered in the wrong name once, in violation of the TOS, and did so in order to facilitate future logging on under an assumed name, also in violation of the TOS. Thus, the government could argue that the first was in violation of the second, and you're popped into felony territory.
12.5.2008 6:41pm
OrinKerr:
Make that, "Thus, the government could argue that the first was in furtherance of the violation of the second, "
12.5.2008 6:42pm
ForWhatItsWorth:
Mike&,
I think the difference, whether it should be or not, is that someone died in Lori's case. It was certainly a clear case of cyber-bullying. That is hard to avoid......

Although it is a bad comparison, if I were to go out in the street and stupidly wave a firearm around, they could decide to cut me some slack and not prosecute (like I said, not a great comparison). But if that weapon went off and a bullet flew blindly thru the air a killed someone, I think the result might be slightly different...... they would get me on every possible count of everything they could, no?
12.5.2008 6:47pm
Daryl Herbert (www):
Did "Ronson" ever use Facebook to meet up with people who gave her drugs?

If so, that would upgrade her Facebook cyberfraud from a misdemeanor to a felony, right?
12.5.2008 6:59pm
Portland (mail):
Let it go, Orin. Your client's scum and she's been convicted. All you're accomplishing beating this dead horse is reminding everyone of the dirtbags you chose to associate yourself with.
12.5.2008 7:05pm
KeithK (mail):

Let it go, Orin. Your client's scum and she's been convicted. All you're accomplishing beating this dead horse is reminding everyone of the dirtbags you chose to associate yourself with.


Whether or not Lori Drew is scum doesn't mean she should go to prison on more or less fabricated charges. I don't speak for Orin but what's important to me in this case is the rule of law.
12.5.2008 7:12pm
OrinKerr:
Portland,

Weren't you banned for violating our TOS? And isn't this comment also in violation of our TOS? Kind of ironic to comment in such circumstances, me thinks.
12.5.2008 7:12pm
Jerome Cole (mail) (www):
Portland,

Lawyers have all kinds of clients. Even "scum" deserve legal representation.

Also, it seems as if you are implying that Orin Kerr is scum by association. Don't you think you went too far?
12.5.2008 7:20pm
David Welker (www):

Also, it seems as if you are implying that Orin Kerr is scum by association. Don't you think you went too far?


Yeah, Orin Kerr is not running for President. Only then is it fair to charge him with "scum by association." =)
12.5.2008 7:30pm
John Ralph Henry II:
... broke the terms of service using a name other than her own....


If there were a civil case then the issues might be more clearly focused in the briefing.

Assume, arguendo, as a matter of law, that access without benefit of the permission granted in the Facebook ToS is deemed unauthorized. That is, Facebook unilaterily grants a license to use their service, and all other access is prohibited, with clear notice.

Then, a critical question is whether providing a truthful name is a condition precedent to the license. Or if the term is merely a covenant attached to the license terms.

If the former, that is if it is a condition precedent, then the license does not issue absent performance by the licensee. If the latter, that is, if it is merely a covenant, then performance may be a preferred remedy. However, the situation may get slightly murky due to differences between contracts, and unilateral licenses.

In general, a license shall be constructed by the same general principles which govern contracts. Further, in some settings, a unilateral license may be seen as nothing more than an enforcable covenant not sue. Where that analysis tends to fail though, is when the defendant attacks the license on the grounds that it isn't an enforcable contract—but seeks to retain the benefit of the permission granted. In that case, there are clear differences due to prohibited nature of the unlicensed act.
12.5.2008 7:35pm
OrinKerr:
If there were a civil case then the issues might be more clearly focused in the briefing.

Actually, the issues would just be different: Criminal law is not contract law, and criminal statutes with elements requiring lack of consent or authorization are generally construed using the factum/inducement distinction rather than using civil law concepts like licenses and contracts.
12.5.2008 7:38pm
Oren:

Thus, the government could argue that the first was in furtherance of the violation of the second

Laughed out loud -- there's a certain mindset that comes with being a prosecutor (or at least when you have a prosecutor in the "I know what he did let me find a law to charge him with" mode).
12.5.2008 7:39pm
CRSpartan01 (mail):

Let it go, Orin. Your client's scum and she's been convicted. All you're accomplishing beating this dead horse is reminding everyone of the dirtbags you chose to associate yourself with.


Portland,

Thanks for the laugh. I accidentally spit water all over my Evidence outline. If I fail, I am blaming you.
12.5.2008 7:56pm
Kent Scheidegger (mail) (www):
Now that we have the fabricated crime of violating a TOS, perhaps we can also fabricate a defense for persons of vacuity. Along the lines of the old Twinkie Defense, it would exempt persons who lack the substantial capacity to comprehend a TOS agreement.
12.5.2008 7:56pm
Steve:
At least she didn't use the name "Steve."
12.5.2008 8:03pm
Joe Bingham (mail):
LOL it is VERY FUNNY that portland is committing the new federal crime of which he's glad Lori Drew has been convicted. Thanks for making my day!

I will not quit laughing at this moron for at least 48 hours.
12.5.2008 8:39pm
Joe Bingham (mail):
OK also made my day in another way; searching Portland's email let me discover that commontheme (my 2nd-least-favorite VC commentor of all time) is banned, too. Too much joy for one evening...
12.5.2008 8:42pm
Smokey:
iambatman is banned, too.

It's a hat trick!
12.5.2008 9:19pm
einhverfr (mail) (www):
Now, if she has logged in 11 times, wouldn't that make the maximum sentence of 101 years?
12.5.2008 9:20pm
einhverfr (mail) (www):
Hmmm... I was reading the statute wrong. The 10 year sentence in this case would only apply to ones subsequent to a conviction. (In other words once convicted, each additional login would be 10 years.)

That would still make at *least* make 15 years for 11 logins though, depending on how one counts....
12.5.2008 9:25pm
whit:

* “She’s getting what everyone else would get”: Deputy District Attorney Danette Meyers. Yeah right.



for a first time cocaine possessory offense, that would be consistent with what others get - in WA state.

i can't speak for california.
12.5.2008 9:53pm
Vera Baker:
Did Lohan's violationh also result in the suicide of a teen age girl?
12.5.2008 10:07pm
einhverfr (mail) (www):
Vera Baker:

Did Lohan's violationh also result in the suicide of a teen age girl?


Does Lori Drew's conviction match your assertion?
12.5.2008 10:17pm
tvk:
Orin, sarcasm really doesn't get you anywhere as a means of persuasion, as I think this blog once noted. There are plenty of crimes that are so massively overbroad that "everyone does it." Speeding is the most obvious one (though a infraction and not a crime as such). Wire fraud and mail fraud probably count too. It is just a little unpersuasive to anyone who is not already a member of the choir to be "shocked, shocked" all of a sudden that the criminal law is so overinclusive.
12.5.2008 10:22pm
LM (mail):
Leave Lindsay alone. In case you're reading this, Lindsay, we're not all such meanies here. You can violate my terms of service any time.
12.5.2008 10:30pm
ShelbyC:
Is using a name other than the one on your birth certificate misrepresenting yourself? I thought in this country you could whatever name you wanted, as long as it wasn't for fradulent purposes?
12.5.2008 10:49pm
Gaius Obvious (mail):
How does this affect Barry Soetoro? Is he in trouble for filling out some forms with the wrong name or something?
12.5.2008 10:57pm
Jerome Cole (mail) (www):
@LM That video was insane! That woman should be locked up for her own protection.
12.5.2008 10:59pm
LM (mail):
Jerome Cole:

It's a guy.
12.5.2008 11:03pm
one of many:
Mike&,
I think the difference, whether it should be or not, is that someone died in Lori's case. It was certainly a clear case of cyber-bullying. That is hard to avoid......

except that it was irrelevant to the Drew case. Quit drawing an irrelevant death into a discusion of the law, the death had nothing to do with Drew or her sentence. Let's talk about the law and how it is a crime to abuse TOSs without dragging in this irrelevant death.
12.5.2008 11:11pm
OrinKerr:
tvk,

I don't understand your comment. It appears to be critical of me for some reason, but to be candid I cannot discern the alleged point of disagreement (other than that I poked fun at something, which you seem to find disagreeable). Perhaps you could explain your position a bit more?
12.5.2008 11:18pm
Bill Poser (mail) (www):
Uh, everybody seems to be assuming that using a pseudonym is necessarily misrepresentation. I don't think that is true. Generally speaking, isn't it the case that, for both civil and criminal purposes, it is NOT misrepresentation to use a name other than your legal name so long as you do not do so for the purpose of committing fraud or concealing information that others are legally entitled to know?
12.5.2008 11:25pm
Oren:

for a first time cocaine possessory offense, that would be consistent with what others get - in WA state.

I live in the wrong goddamned state. 2nd DUI here (MA) is 30 day minimum lockup.
12.5.2008 11:43pm
ShelbyC:

Uh, everybody seems to be assuming that using a pseudonym is necessarily misrepresentation.


I JUST SAID THAT :-) :-)
12.5.2008 11:56pm
whit:
really? i used to be a MA cop and don't recall it being that strict back in the day.

fwiw, i think sentences for DUI should be harsher than cocaine possession, but that's kind of obvious. :)

i did a fair # of DUI's in MA.

lindsey should have gotten sentenced for "i know who killed me". imagine a movie featuring lindsey lohan as a stripper. and it still sucks
12.5.2008 11:56pm
Lex:
Orin,

I'm curious about something. Perhaps I'm misunderstanding your tone (the Internet isn't good for judging such things), but you seem surprised or even hostile that you're getting push back on the Lori Drew case. I suspect this is rooted less in a substantive disagreement about the law (because you're very persuasive on that score), and more in what may be perceived as a contemptuous attitude towards those who are not disturbed by the basic justice or morality of imprisoning your client for what she did, even under an overbroad law.

Of course, as Lori Drew's lawyer, you can't speak ill of her; we understand that. I also think most of us agree with your basic premise: we must let Lori out of prison, or else Leviathan will threaten us all. Fine, but do we have to be happy about it? You seem to need us all to think it's not even regrettable that Lori Drew gets out of jail. Yet at least 8 of your client's peers thought they could convict her of a felony and still sleep at night; I bet most lay people would agree. There are surely lots of people who trust the government not to prosecute them on this specious theory--only people like your client, whose outrageous conduct we would have criminalized in more precise terms had we been able to foresee it. Can you show this trust to be empirically misplaced? Or do you just think, as I do, that "it's the principle of the thing"?

Perhaps I've misread your tone; if so, I apologize. But I do wonder whether some of the resistance you're encountering stems from your readers' inference that you disapprove of their moral intuitions and priorities. Just a thought,

Lex
12.6.2008 2:33am
Joe Bingham (mail):
But I do wonder whether some of the resistance you're encountering stems from your readers' inference that you disapprove of their moral intuitions and priorities.

Is there something wrong with disapproving of moral intuitions and priorities that are clearly wrong? I mean, if people prefer a just outcome to a just system simply because they haven't thought through the consequences, isn't that something that merits at least disapproval and gentle laughter?

I mean, I can say "geez, that kid's parents deserve to go to jail for raising such a freaking stupid kid that she'd kill herself over a fictional boy," and in some sense that is probably true, but the fact that it fits with some superficially correct moral intuition doesn't make it a respectable position that's beyond the reach of satire. (Although idk if OK's point here counts as "satire" since it's literally true that the jury said LiLo is guilty of a federal crime if she violated FB's TOS...)
12.6.2008 3:02am
tvk:
Orin, poking fun at a previously ignored pheonmenon only when it so obviously benefits your client seems a little self-serving.
12.6.2008 3:31am
tvk:
To take an analogy, it is as if you suddently decided to write a sarcastic blog post about how speeding laws are massively underenforced the day after you get a ticket. While I beleive that speeding laws are out of touch with reality, just as I believe that the Drew prosecution is overreaching, it still doesn't help your argument.

Also, when a lawyer resorts to sarcasm, it is a sign that he believes the other side to be so utterly devoid of merit that he cannot understand why anyone would disagree with him. In my own experience, that is a really bad mental state for a lawyer to have.
12.6.2008 3:37am
Ricardo (mail):
Orin, poking fun at a previously ignored pheonmenon only when it so obviously benefits your client seems a little self-serving.

The point is that it wasn't previously ignored by Orin Kerr. He apparently first wrote about the possibility of a zealous prosecutor applying computer crime laws against a TOS violation several years ago. His interest and knowledge of this area of law seem to be the reason why he is representing (pro bono?) Drew in the first place.

So, yes, when a Federal judge (wrongly, of course, according to Kerr) rejects the legal theory that OK has proposed in the past, of course he is going to start pointing out the absurdity of his opponents' alternate theories. How is that "self-serving"?
12.6.2008 4:03am
LM (mail):
Ricardo:

How is that "self-serving"?

Well, it is self-serving insofar as what serves our clients serves us. But the point is that in light of the history you described it's a fair assumption that his self-interest was more coincidental here than it was motivating.
12.6.2008 4:15am
Ryan Waxx (mail):

Well, it is self-serving insofar as what serves our clients serves us.


So your theory is that he's using his weblog to enhance his chances for a successful appeal? You're reaching. Badly.
12.6.2008 7:13am
JB:
Occam's razor: It's topical now. Everyone blogs more about those among their interests that are in the news. That's just how things work.
12.6.2008 8:00am
jdporter (mail):
I feel like such an imbecile for still liking LiLo, inspite of everything. She hasn't gone totally winehouse on us. Not yet, anyway. The fact that she is (or is pretending to be) a lesbo just piques my fascination.
12.6.2008 8:09am
zippypinhead:
The "current Feds" are much more creative than that. Lohan entered in the wrong name once, in violation of the TOS, and did so in order to facilitate future logging on under an assumed name, also in violation of the TOS. Thus, the government could argue that the first was in [furtherance of the] violation of the second, and you're popped into felony territory.
Professor Kerr, you need a creativity booster shot. Heck, with repeated illegal accesses under an assumed name, you arguably also have multiple §1343 wire fraud counts, and thus (assuming you ignore annoyingly-lenient DOJ charging policy) Lindsay was engaged in a RICO "pattern of racketeering activity" under §1961(5). I figure Lindsay's looking at about, say, 20 years in "Supermax" ADX Florence, right?

Oh wait, Florence is an all-male prison. Lindsay Lohan... No, I just can't say it — even Sarcastro wouldn't go there... LoL
12.6.2008 8:15am
pete (mail) (www):

To take an analogy, it is as if you suddently decided to write a sarcastic blog post about how speeding laws are massively underenforced the day after you get a ticket. While I beleive that speeding laws are out of touch with reality, just as I believe that the Drew prosecution is overreaching, it still doesn't help your argument.


But at least with speeding laws everyone is aware of them. You have to pass a test to get a driver's license that goes over them and the government puts up signs all over the place letting you know if you are breaking the law. People may not like them and most of our local and state governments are not consistent in enforcing them, but pretty much everyone agrees the laws as written make speeding an infraction and that this is what the legislature intended when it passed the laws.

And no one goes to jail for speeding unless it is reckless or connected with another crime they are convicted for. I have never heard of a prosecuter sending someone to jail for speeding when they want to convict them of murder, but can't.
12.6.2008 10:39am
Ken Arromdee:
There are surely lots of people who trust the government not to prosecute them on this specious theory--only people like your client, whose outrageous conduct we would have criminalized in more precise terms had we been able to foresee it. Can you show this trust to be empirically misplaced?

Let me get this straight. The law as interpreted right now would let the government prosecute anyone at all. And you're seriously wondering whether we should worry about this power being misused?
12.6.2008 10:43am
Joe Bingham (mail):
Orin, poking fun at a previously ignored pheonmenon only when it so obviously benefits your client seems a little self-serving.

TVK,

Dude, did you just find this blog for the first time?

(1) Buy spellcheck.
(2) OK's fun-poking does not obviously benefit his client.
(3) This phenomenon wasn't ignored by him previously, in fact
(4) he took this case pro bono (self-serving?) because he had already done public scholarship on this very issue.

Welcome to VC. Buy a spellchecker, read a few posts, and keep your foot in your mouth.
12.6.2008 11:55am
Guest102:
(Warning: Sarcasm Alert - I hope)

Immediately upon enactment by Congress, (or interpretation of similar, yet unrelated statutes, by individual prosecutors) access to the internet must require a 40 hour course (or other appropriately length course of instruction yet to be determined by the government) on protocol, access requirements, criminal and contract law, fraud, importance of ToS agreements, importance of honesty, cyber-bullying and "rules for the information super-highway".

Upon completion of the course and successfully passing the end of course test, you will be licensed to utilize the internet. (For a small annual fee to cover administrative costs) Prior to logging on you will simply enter your license number as proof of identification and course completion.

Your anonymity will be protected and guaranteed by the full faith and credit of the U.S. Government . Violations of the act shall be determined by the severity of the individual offense and will be determined to be either civil or criminal violations by the prosecutors just prior to the start of trial.

It shall be named the "Emily Post Rules of Internet Etiquette Act". After all, the internet is too dangerous a vehicle to be utilized in an unlicensed manner.

Feel free to put yourself into the role of prosecutor and add, delete or interpret provisions at any time. It is, after all, a living statute.

Portions of this law have been left intentionally blank.
12.6.2008 11:58am
Guest102:
After all, the internet is too dangerous a vehicle to be utilized in an unlicensed manner.


Sorry, that should read:

"...utilized in a rude and unlicensed manner."

See how easy that was?
12.6.2008 12:13pm
tvk:
Joe Bingham,

1. Anyone who is going to quibble over a couple of transposed letters on a blog has their own problems.
2. Orin's fun-poking (if it can be called that) is attempting to portray the USA's interpretation of the statute as leading to ridiculous results, which will surely help his client if a court agrees.
3. By my count, Orin has been posting something sarcastic about the Drew case on an average of once a week recently. And the phenomenon at issue here is not computer crime (which Orin is an acknowledged expert at), but prosecutorial overreach.
4. And the fact that he took the case pro bono is relevant exactly how?

As Lex pointed out above, perhaps what irks me is that Orin's sarcastic tone implies that he thinks the case is legally and morally easy, with no arguments for the other side; whereas I think it is neither, even if ultimately I agree with him on the right result. Sarcasm without analysis only rallies those who are already 100% on your side, and turns off both opponents and fence-sitters alike.
12.6.2008 2:27pm
LM (mail):
Ryan Waxx:

Well, it is self-serving insofar as what serves our clients serves us.

So your theory is that he's using his weblog to enhance his chances for a successful appeal? You're reaching. Badly.

I'm the one who's reaching? The point of my comment -- the whole comment, not just what you quoted out of context -- is opposite what you claim. I said that despite any benefit to Orin's client (and thus technically to Orin) from a post like this one, his pre-existing scholarship and commentary on the subject indicate that such benefit is not what motivated him to post it.
12.6.2008 2:50pm
Fub:
Ken Arromdee wrote at 12.6.2008 10:43am:
Let me get this straight. The law as interpreted right now would let the government prosecute anyone at all. And you're seriously wondering whether we should worry about this power being misused?
Exactly!

I perceive a common characteristic among those who would trust government to be restrained, moderate and even wise in using a law with such broad sweep of obvious innocents, and those who in the context of the war on (some) drugs make the assertion that "if you legalize drug XYZ, everybody will decide to become addicted, use it all the time, and chaos will ensue".

The common characteristic is the assumption that government consists of angels wiser than Solomon, but ordinary citizens[1] are yahoos.

[1] excepting the holder of the assumption, of course.
12.6.2008 2:54pm
John Ralph Henry II:
Actually, the issues would just be different: Criminal law is not contract law, and criminal statutes with elements requiring lack of consent or authorization are generally construed using the factum/inducement distinction rather than using civil law concepts like licenses and contracts.


Professor Kerr,

I may very well be an idiot, with an incomplete and inaccurate understanding of the fundamentals of common contracts and licenses... but Facebook is a sophisticated entity, employing qualified and competent attorneys to scrutinize the offers, contracts and licenses that they willingly offer to the public. Even if I'm clueless, they must know what they're doing.

If, in a civil action brought by Facebook against Ms. Lohan, applying a summary judgement standard, any rational court would conclude that Facebook issued Ms. Lohan a license to access the site, then I've got hard time figuring out how the U.S. Attorney's office could prosecute her in good faith for unauthorized access.

From the facebook Facebook ToS:
[...]

Registration Data; Account Security

In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data"); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

Proprietary Rights in Site Content; Limited License

All content on the Site and available through the Service, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other files, and their selection and arrangement (the "Site Content"), are the proprietary property of the Company, its users or its licensors with all rights reserved. No Site Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the Company's prior written permission, except that the foregoing does not apply to your own User Content (as defined below) that you legally post on the Site. Provided that you are eligible for use of the Site, you are granted a limited license to access and use the Site and the Site Content and to download or print a copy of any portion of the Site Content to which you have properly gained access solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Except for your own User Content, you may not upload or republish Site Content on any Internet, Intranet or Extranet site or incorporate the information in any other database or compilation, and any other use of the Site Content is strictly prohibited. Such license is subject to these Terms of Use and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or the Site Content other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.

[...]

I've emphasized three important terms (and de-emphasized the captions). These three terms deserve discussion.

“Provided” is an alert word, commonly used to indicate a condition.

I also read the termination clause as a condition, however it's a condition subsequent to Facebook's license grant.

The “In consideration ... you agree to” reads to me like some promises.
12.6.2008 2:59pm
Joe Bingham (mail):
1. Anyone who is going to quibble over a couple of transposed letters on a blog has their own problems.

Granted. :) (watch me misspell in this post...)

2. Orin's fun-poking (if it can be called that) is attempting to portray the USA's interpretation of the statute as leading to ridiculous results, which will surely help his client if a court agrees.

So your theory is that if the appellate court reads this blog and thinks this post is funny, it will help OK's client, and that this is OK's motivation for the post?

3. By my count, Orin has been posting something sarcastic about the Drew case on an average of once a week recently. And the phenomenon at issue here is not computer crime (which Orin is an acknowledged expert at), but prosecutorial overreach.

This is just silly. The case can involve both prosecutorial overreach (which this one does) and computer crime (which this one does). The issue is prosecutorial overreach in the form of an absurdly bad theory about computer crime.

4. And the fact that he took the case pro bono is relevant exactly how?

Because even if he's trying to help his client with these posts (which seems silly), it's still not self-serving, it's serving the interests of a client who's not going to pay him.

As Lex pointed out above, perhaps what irks me is that Orin's sarcastic tone implies that he thinks the case is legally and morally easy, with no arguments for the other side; whereas I think it is neither, even if ultimately I agree with him on the right result. Sarcasm without analysis only rallies those who are already 100% on your side, and turns off both opponents and fence-sitters alike.

There's a substantive difference between sarcasm and satire. OK's posts have not been sarcastic. His points about the absurdity of the prosecution's theory are, in fact, compelling.

That said, have you ever explained why you think the case isn't morally or legally easy? (Quite possible you did and I just missed it.) What's the compelling reason that it should be a federal crime to violate any website's TOS?
12.6.2008 4:50pm
Bleepless:
Has no one noticed that this is as clear an act of terrorism since, uh, I forget.
12.6.2008 7:30pm
whit:
clearly al gore did not have this kind of mischief in mind when he invented the internet.
12.6.2008 8:32pm
OrinKerr:
TVK,

I don't think there are no arguments on the other side: I just think there are no arguments that aren't very very weak and pretty obviously unpersuasive. This is a topic I have been studying for a decade, both in government and as a scholar, and I have pretty strong feelings about it. If you don't like what you hear from me on the case, you really should cease reading my posts: No one is making you read them.

To make this easier for you, I hereby amend the Volokh terms of service to add the following: Anyone who has left a blog comment using the handle "tvk" is not authorized to access this blog. Any access by such individual(s) is unauthorized, contrary to the permission of the owners, and without the consent of the blog.
12.6.2008 9:32pm
TVK's Non-Banned Sock Puppet (or not):
So your theory is that if the appellate court reads this blog and thinks this post is funny, it will help OK's client, and that this is OK's motivation for the post?
Dude! Everybody knows appellate judges all spend their free time reading blogs, not briefs. Right after they figure whatever happened to silver carriage return handle that's supposed to be to the right of the mysteriously missing roller platen on their computer-thingie.
12.6.2008 11:06pm
Oren:
Sometimes sarcasm is really the only appropriate response.

Seriously, when a prosecutor decides on criminalizing conduct he's only got to search the books to find a violation.
12.7.2008 12:40pm

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