"Should Faking a Name on Facebook Be a Felony?"

Orin Kerr asks:

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

I was a victim of that crime back in 2007, and I got mocked for even objecting to the behavior, as though I was repressive and humorless. ("You know, I realize you're going on 70 or whatever, but seriously, you act like you're still in high school, being picked on.") I never said I wanted the government to prosecute the person who impersonated me on Facebook in violation of Facebook's Terms of Use. I just wanted Facebook to delete the imposter's account... which it did.

Anyway, there are a lot of complicated issues here. As Kerr observes, way too many things are swept into this vague law, and the effects have been limited because federal prosecutors tend not to charge misdemeanors. There is, however, some core behavior that ought to be prosecuted as a felony, and Congress ought to specify what it is and not simply trust prosecutors — incentivized by the new felony status of internet misbehavior — to select appropriate targets.