Computer Fraud and Abuse Act, Online Identity, and Harassment

The Missouri woman who allegedly registered on MySpace under the fake name "Josh Evans" , and, using this account, flirted with a teenager, then abruptly ended the relationship, has been indicted by a Federal Court. See the indictment here. The young girl then committed suicide.

The Missouri prosecutors were at first helpless in finding a statute to prosecute the woman. The federal prosecutors used 18. U.S.C. §§ 1030 9a) (2) (C), which makes illegal to intentionally accessing a computer without authorization or exceeding authorized access, and thereby obtaining information from any protected computer if the conduct involved an interstate or foreign communication. However, the indictment reads "obtain information from that computer to further a tortious act, namely intentional infliction of emotional distress, in violation of 18. U.S.C. §§ 1030 (a) (2) (C), but the federal law was not enacted to protect individuals against tortious acts, such a s intentional infliction of emotional distress. Section 1030, the Computer Fraud and Abuse Act, deals with fraud and related activity in connection with computers.

MySpace TOS requires members to refrain from promoting abusive, threatening, obscene, defamatory or libelous conduct. But is pretending to be somebody else while on line a fraud? Arguing that would be akin as making all second life users criminals. True, having a "second life" is not without risk, and, as it happened , a toxic romance has already led to a crime last year. Using a false identity to commit a tortious act, as, in this case, infliction of emotional distress should be incriminated, but not by the Computer Fraud and Abuse Act. Couldn't a Misouri criminal harassment law have been used? For example, in New York, Section 240.26 of the NYPL incriminates harassment in the second degree, which occurs when, "with intent to harass, annoy, or harm another person, a person engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy " another person.

Read more about this case on Concurring Opinions.