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September 9th, 2010

Is Sarah Palin a Computer Criminal?

Commentary by Marcia Hofmann

Vanity Fair suggests that Sarah Palin's distinctive voice on Facebook and Twitter is actually someone else's. According to the article, she appears to have given a ghostwriter access to her social networking accounts to speak on her behalf:

When it was first set up, in January 2009, Palin's Facebook page might as well have been a file cabinet for official press releases ("Palin Pushes Parental Consent Legislation") written mostly in a stiff, third-person form. The same was true of her Twitter feed, which went live in April. After [writer Rebecca] Mansour's voice disappeared on [the pro-Palin blog] C4P, however, Palin's voice on Facebook and Twitter started sounding increasingly provocative and irascible. A company called Aries Petra Consulting was formed in September and registered to Mansour's home address, but under someone else's name. (In astrology, Aries is the ram—or "RAM.") SarahPAC's first payment to the firm was made in October, about two weeks before Palin began her book tour. By then, Palin's new virtual voice was growing in intensity. The more shrill it became, the more news Palin made: "QUIT MAKING THINGS UP DNC" … "OBAMA ADMINISTRATION'S ATROCIOUS DECISION: HORRIBLE DECISION, ABSOLUTELY HORRIBLE" … "ARE YOU CAPABLE OF DECENCY, RAHM EMANUEL?" The payments to Mansour were not made public until February 1, 2010, when SarahPAC had to disclose its quarterly filings with the Federal Elections Commission. The day before the disclosure, knowing what was coming, C4P made an official announcement acknowledging that . . . Mansour . . . had left the site months earlier and gone to work for SarahPAC.

Let's assume that Palin created her own Facebook account, and then hired Mansour to manage it. So what, right? Lots of high-profile people probably don't update their own Facebook pages. In fact, President Obama's Facebook page explicitly says that it's maintained by Organizing for America.

The problem is that Facebook's terms of use prohibit several things that Palin and her ghostwriter may have done. Specifically, it forbids users from:

• accessing someone else's account
• sharing their passwords to let someone else access their accounts
• transferring their accounts to someone else (without Facebook's written permission)
• providing false personal information
• "facilitating" or "encouraging" someone else to violate the terms of use

If Palin and her ghostwriter are in fact violating Facebook's terms of use, that probably doesn't seem like a big deal to most people. Just by surfing around the internet, we "agree" to dozens of website terms of use every day, usually before we even read them. These terms can say anything a website operator wants, and often specifically note that they can be changed at any time without notice (or with minimal notice).

But violating a website's terms of use is a big deal, according to Facebook. In fact, Facebook says it's a federal crime.

In Facebook v. Power Ventures, Facebook has sued a service that lets social network users view all their information from various social networking sites on one page. Like the way Sarah Palin's ghostwriter accesses Sarah's account, Power's service uses your password to access your account, with your permission. Facebook claims that this violates its terms of use, and any act that violates its terms of use is a violation of computer intrusion laws such as the federal Computer Fraud and Abuse Act, which prohibits intentionally accessing certain computers without authorization or in excess of authorization. Violations of this law are punishable by both civil and criminal penalties. Facebook also tried to claim that Power's service violated California's state computer crime law, but a federal court recently rejected (pdf) that argument.

In short, Facebook believes that if you use Facebook in a way that Facebook doesn't like — as defined by its terms of use — you commit a federal crime.

Facebook's position is ridiculous. It's also dangerous. If we commit a crime every time we violate a website's terms of use, then millions of Americans are becoming criminals every day through routine online behavior and could be subject to lawsuits or even prosecution. And worse, internet companies have the power to decide what behavior a person could go to prison for, simply by instructing their lawyers to draft a document to forbid certain acts.

Are Sarah Palin and Barack Obama computer criminals? We don't think so. Facebook and other companies need to stop trying to misuse computer crime laws to turn violations of terms of use into crimes.

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