Little White Lies on Facebook May Bring Federal Prosecution

Bob Barr
November 25, 2011

Have you ever lied about your age or your weight, or given someone a fake name? You may be able to get away with little white lies in casual conversation, but the Department of Justice now wants to make any instance of lying on dating or social networking sites a federal crime. The tenuous basis for such action is that lying on social networking sites “violates” the sites’ terms of use agreements.

The timing of the Department of Justice’s latest policy issuance is curious, coming as Attorney General Eric Holder remains under heavy criticism from Republicans in Congress over his department’s handling of the controversial “Fast and Furious” gun-running scandal. It’s odd that the department would look for yet another controversial issue to place on the table in the midst of this scandal.

But, as Declan McCullagh reported last week at CNET, the Department of Justice is using an extremely expansive interpretation of the Computer Fraud and Abuse Act (CFAA) to justify prosecuting anyone caught breaking a terms of use agreement. The department’s tortured interpretation of these agreements — most of which are never read by the average consumer and are not intended to cover personal comments between users — could turn millions of Americans into criminals.

In a recent statement to a House Judiciary subcommittee in defense of this expansive interpretation of the computer fraud law, however, Richard Downing, the deputy chief of the Department of Justice Computer Crime and Intellectual Property Section, claimed that not interpreting the law this way would “make it difficult or impossible to deter and address serious insider threats” such as fraudulent schemes or hacking. In fact, the department can prosecute computer hackers or con artists without interpreting standard terms of use agreements in such a ridiculously broad way. Long-standing federal fraud statutes and computer crimes laws are extremely broad and are more than adequate to prosecute truly criminal behavior.

It appears the time is ripe for cooler heads in the Congress to step in and bring some common sense to the administration’s interpretation of these federal laws. If the Department of Justice’s interpretation of the CFAA stands, users of such wildly popular sites as Twitter and Facebook may now want to have an attorney on hand to advise them on whether their messages might land them in the federal slammer.