TOS Violations in Criminal Solicitation of a Minor Case

 Posted on May 19, 2008 in Uncategorized

The indictment (h/t Orin Kerr at The Volokh Conspiracy) in U.S. v. Drew:

On or about the following dates, defendant DREW, using a computer in O'Fallon, Missouri, intentionally accessed and caused to be accessed a computer used in interstate and foreign commerce, namely, the MySpace servers located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of an interstate communication, obtained and caused to be obtained information from that computer [in violation of 18 U.S.C. ยง 1030(a)(2)(C)].

The Government's theory in Drew is that Ms. Drew and others broke the law when they obtained information by violating the MySpace terms of service. They violated the terms of service, according to the Government, by registering with false information. (They also allegedly violated the ToS by: using information obtained from MySpace to harass, abuse, or harm other people; promoting information that they knew was false or misleading; promoting conduct that was abusive, threatening, obscene, defamatory, or libelous; and posting photographs of other people without their consent.)

I'll let others (Greenfield, Kerr, Gideon) sort out whether the Government is right about the law, or should be. Let's assume for the sake of this post (for you, today only!, as they used to say down on Jan Path) that the Government has the law right, and let's take a look at one of my favorite statutes, Texas Code of Criminal Procedure Article 38.23:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

As you can see, the Texas exclusionary rule is broad. According to the statute, if any person obtains any evidence in violation of any law, the evidence is inadmissible against the accused.

While there may be a specific provision elsewhere in the law allowing law enforcement officers to do a specific thing that would, for people other than cops, constitute a crime (for example, officers are permitted to possess controlled substances in the discharge of their official duties), Texas does not generally allow the police to violate laws in order to obtain evidence.

Courts have held that "any provisions" does not mean "any provisions": the primary purpose of the exclusionary statute is to deter unlawful actions that violate the rights of criminal suspects. So a violation by the police of the assumed name statute, for example, does not vitiate a police investigation in which a false business name was used.

Section 1030, one element of which is the obtaining of information, is intended to protect the rights of the possessor of that information. So if someone violates section 1030 and gets a

Why might all of this matter?

Consider an online criminal solicitation of a minor case, in which a 45-year-old fat balding white guy pretends to be a 14-year-old in order to lure some other 45-year-old fat balding white guy into an assignation. (Query: has there ever been an online solicitation prosecution in which an actual child was involved?)

So: If the two 45-year-old fat balding white guys are communicating over a service (like MySpace) that has terms of service, the first guy, if he didn't truthfully describe himself as 45, fat, and balding, probably violated those terms; by using the service in violation of the ToS he accessed the service in excess of his authority; by obtaining information using that access, he committed a federal crime. Article 38.23 requires suppression of the evidence he obtained in violation of Section 1030.

Will it work? Who knows. I hadn't even thought of it before the Government came up with their theory in Drew. It may not work, but it's something new to litigate. And that's usually fun.

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