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The article says: "In the Justice Department’s view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook..." Facebook's Terms say: "Yo

The article says: "In the Justice Department’s view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook..." Facebook's Terms say: "You will not provide any false personal information on Facebook..." But Facebook's registration is VERY unclear. They ask for an entry for "First Name" (not specifying whose), an entry for "Last Name" (again, not specifying whose), an entry for "Your Email" (specifying an article "Your", so presumably if they wanted my first name or last name, they would have specified "YOUR name") and an entry for "I am [Select Sex:]" (presumably asking me to predict the web developer's gender (?). If they wanted the registrant's gender, they should have said "YOU ARE [Select Sex:]", or at least make sure that the email question and the gender question were consistent. The Terms refer to the user as "You" and not "I". Given that they have first person, second person, and no person specified on their registration page, any lawyer worth his $250/hour should be able to argue your way out of criminal charges (or even breach of contract) in using a fake name on Facebook. A reasonable argument would be that the first time I went to Facebook, I wanted to search for a friend, so I put in HIS first name and last name, created an account, and now I am stuck with it. Unfortunately, Facebook's very own terms restrict me from correcting this error (due to their lack of clarity and inconsistencies on the home page), as the terms say "You will not create more than one personal profile."

dotBen 15y ago
This is why HN - as awesome as it otherwise is - is awful for legal advice. A reasonable argument would be that the first time I went to Facebook, I wanted to search for a friend, so I put in HIS first name and last name, created an account, and now I am stuck with it. But unless you are a complete moron you would have known you were registering a new account and not doing a search. So now you've just lied under oath in Federal Court. A good prosecutor would reason for the jury that given that you "work in computers" you would have known the difference between registration and site search - and so now you're also being charged with 18 USC §1621 [Federal Perjury] for making a false declaration and you're looking at up to an extra 5 years in prison tacked on to whatever the judge is going to hand you at the end of this. To make matters worse the prosecutor is appealing for all of the evidence you gave for your defense to be ignored given that you've demonstrated you are a bad witness. Well done.
- jerfelix 15y ago
  I agree that HN shouldn't be used for legal advice. I was actually involved in a case where the registration page, terms and usage policy were confusing and inconsistent in a similar fashion (not exactly, but close), and as I recall, the judge agreed with that part of the complaint. I am not a lawyer, but I believe the legal basis for that portion of the decision was that the terms are being defined by the corporation (presumably with reasonable resources to make sure they do it right), and being presented to the user (presumably with significantly less resources) with little option for discussion - you either agree or go away. And therefore the judge felt that it was incumbent on the the website to get it right, since they had designed the registration and defined the terms. The benefit of the doubt was given to the user. I would never advocate lying under oath (as you suggested). Presenting an argument is different than lying under oath. Your experience may be different, but that was my firsthand experience.
  - fennecfoxen 15y ago
    Yeah - depending on the specifics of your case, as a defendant you may be able to do a "defense in depth" where you argue multiple, possibly-contradictory explanations why you might not be guilty, without actually committing to one of them as actually true. Presumption of innocence is awesome.
- rprospero 15y ago
  A little over a year ago, my uncle wanted to reconnect with an old friend, so he tried fFcebook for the first time. He came to the form and did EXACTLY what was described above. He knew that he was signing up for Facebook, but he only thought that he was signing up to read it and not to have his own page. He thought the e-mail and password were his username and password and the first and last name were his search terms. It took two months to get everything straightened out with him. So, yes, Facebook's terrible UX will no longer just be obnoxious, it will actually be making people into criminals.
- gcb 15y ago
  nice try. but to enforce that the prosecutor would have to call the guy "a complete moron"... i don't think the jury would take that very well.
wisty 15y ago
The law (in general) is not interpreted by ASD judges with no common sense who are trying to find loopholes for you. Though is seems rich people get that kind of treatment when they do their taxes. (Note, IANAL).
thehotdon 15y ago
You seem to be making the inaccurate assumption that both the law and its enforcement are logically consistent. This might seem reasonable if you are a mathematician or engineer who is used to working with formal specifications and precise definitions. Unfortunately, the people who write and uphold the law are about as far from engineers as you can get.
- noonespecial 15y ago
  Too true. Once two perfectly sound legal arguments are made without breaking any semantic rules of the legal system, but point to opposite conclusions, the law becomes a political process. Good lawyers complete the first phase and hope, truly excellent ones are adept politicos as well. It takes years of legal training to stop thinking about the reality of the situation or what laymen would say "actually happened".
einhverfr 15y ago
'A reasonable argument would be that the first time I went to Facebook, I wanted to search for a friend, so I put in HIS first name and last name, created an account, and now I am stuck with it. Unfortunately, Facebook's very own terms restrict me from correcting this error (due to their lack of clarity and inconsistencies on the home page), as the terms say "You will not create more than one personal profile."' Lest you think this is just a hypothetical, consider the prosecution of Lori Drew for creating a fake profile on Myspace. The problem, as Prof. Kerr has repeatedly pointed out in his blog (over at http://www.volokh.com http://www.volokh.com) is that if you have a law which can be argued to criminalize what most people do, then we move from a government of laws to a government of prosecutors. It was on this basis that he put time into defending Lori Drew, arguing that the US Constitution did not permit this prosecution because it was a violation of due process. His work was largely instrumental in getting the misdemeanor convictions thrown out.

dotBen 15y ago

This is why HN - as awesome as it otherwise is - is awful for legal advice. A reasonable argument would be that the first time I went to Facebook, I wanted to search for a friend, so I put in HIS first name and last name, created an account, and now I am stuck with it. But unless you are a complete moron you would have known you were registering a new account and not doing a search. So now you've just lied under oath in Federal Court. A good prosecutor would reason for the jury that given that you "work in computers" you would have known the difference between registration and site search - and so now you're also being charged with 18 USC §1621 [Federal Perjury] for making a false declaration and you're looking at up to an extra 5 years in prison tacked on to whatever the judge is going to hand you at the end of this. To make matters worse the prosecutor is appealing for all of the evidence you gave for your defense to be ignored given that you've demonstrated you are a bad witness. Well done.

jerfelix 15y ago
I agree that HN shouldn't be used for legal advice. I was actually involved in a case where the registration page, terms and usage policy were confusing and inconsistent in a similar fashion (not exactly, but close), and as I recall, the judge agreed with that part of the complaint. I am not a lawyer, but I believe the legal basis for that portion of the decision was that the terms are being defined by the corporation (presumably with reasonable resources to make sure they do it right), and being presented to the user (presumably with significantly less resources) with little option for discussion - you either agree or go away. And therefore the judge felt that it was incumbent on the the website to get it right, since they had designed the registration and defined the terms. The benefit of the doubt was given to the user. I would never advocate lying under oath (as you suggested). Presenting an argument is different than lying under oath. Your experience may be different, but that was my firsthand experience.
- fennecfoxen 15y ago
  Yeah - depending on the specifics of your case, as a defendant you may be able to do a "defense in depth" where you argue multiple, possibly-contradictory explanations why you might not be guilty, without actually committing to one of them as actually true. Presumption of innocence is awesome.
rprospero 15y ago
A little over a year ago, my uncle wanted to reconnect with an old friend, so he tried fFcebook for the first time. He came to the form and did EXACTLY what was described above. He knew that he was signing up for Facebook, but he only thought that he was signing up to read it and not to have his own page. He thought the e-mail and password were his username and password and the first and last name were his search terms. It took two months to get everything straightened out with him. So, yes, Facebook's terrible UX will no longer just be obnoxious, it will actually be making people into criminals.
gcb 15y ago
nice try. but to enforce that the prosecutor would have to call the guy "a complete moron"... i don't think the jury would take that very well.

wisty 15y ago

The law (in general) is not interpreted by ASD judges with no common sense who are trying to find loopholes for you. Though is seems rich people get that kind of treatment when they do their taxes. (Note, IANAL).

thehotdon 15y ago

You seem to be making the inaccurate assumption that both the law and its enforcement are logically consistent. This might seem reasonable if you are a mathematician or engineer who is used to working with formal specifications and precise definitions. Unfortunately, the people who write and uphold the law are about as far from engineers as you can get.

noonespecial 15y ago
Too true. Once two perfectly sound legal arguments are made without breaking any semantic rules of the legal system, but point to opposite conclusions, the law becomes a political process. Good lawyers complete the first phase and hope, truly excellent ones are adept politicos as well. It takes years of legal training to stop thinking about the reality of the situation or what laymen would say "actually happened".

einhverfr 15y ago

'A reasonable argument would be that the first time I went to Facebook, I wanted to search for a friend, so I put in HIS first name and last name, created an account, and now I am stuck with it. Unfortunately, Facebook's very own terms restrict me from correcting this error (due to their lack of clarity and inconsistencies on the home page), as the terms say "You will not create more than one personal profile."' Lest you think this is just a hypothetical, consider the prosecution of Lori Drew for creating a fake profile on Myspace. The problem, as Prof. Kerr has repeatedly pointed out in his blog (over at http://www.volokh.com http://www.volokh.com) is that if you have a law which can be argued to criminalize what most people do, then we move from a government of laws to a government of prosecutors. It was on this basis that he put time into defending Lori Drew, arguing that the US Constitution did not permit this prosecution because it was a violation of due process. His work was largely instrumental in getting the misdemeanor convictions thrown out.