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20 May 2008, 14:29

Another blow to web anonymity?

Mike Barwise

After a 13-year old Missouri schoolgirl committed suicide in 2006, it emerged that Lori Drew, a 47-year old neighbour, had bullied her on MySpace in the guise of a fictitious 16-year old boy. Having apparently exhausted the Missouri statute book without finding grounds for charges related to the bullying, state prosecutors have finally fallen back on the federal Computer Fraud and Abuse Act. The charge against Drew is "unauthorised access to a computer", based on the MySpace terms of service, which prohibit "impersonating or attempting to impersonate another Member, person or entity".

My first concern is that elevating what was essentially at worst a tort – a breach of civil contract between MySpace and Drew – into a criminal matter seems inherently questionable, even in order to prosecute someone suspected of a greater crime. As the Daily Camera comments, "If a terms-of-service violation were all it took to bring federal charges, overly zealous prosecutors would be in a position to indict just about anyone who used the Internet."

There also seems to me some uncertainty as to whether "impersonation" actually took place. The fundamental question is whether pretending to be a completely imaginary person equates to pretending to be someone else who actually exists or did exist in the past. The second question is whether pretending to be either is – or even should be – of itself a criminal offence. Current US law on this apparently varies from state to state. In the UK, casually changing one's identity is at present only a criminal offence ancillary to other criminal acts such as fraud, and on occasion not even then. Indeed, at the end of 2007 there were reports of a Manchester resident who was unable to gain legal redress when identity fraudsters clocked up £10,000 in parking fines against his name. However, if the pressure for a national biometric identity scheme succeeds in bearing fruit, a raft of offences will assuredly be created.

So why is imaginary identity an issue at all? Pretending to be some other living or deceased person might grant access to resources or influence not otherwise available to the "impersonator". But – except on Second Life – it is hard to see how such advantages could be available to someone who creates a purely imaginary alternative identity. In general there must be some significant degree of "advantage" gained to which the false identity contributes – merely pretending to be a non-existent person is not universally – and should not be – an offence. If nothing else, that would make authors' pen names and actors' stage names unlawful, creating chaos in the arts world. In this case, it would seem that there was no such advantage – Drew was not able to do anything with her MySpace account involving her "fictitious" identity that she could not have done in her own name. Even had she an expectation of a certain level of supposed anonymity by virtue of the alias, her expectation was unfounded, else she would not have been caught and indicted. It might be argued that her imaginary persona contributed to the effects of her actions by engaging the attention of her victim, but that is a weak and dangerous argment for rendering the use of an online alias unlawful in general.

This is not individually a world-shaking case. But interpretation of the law develops case by case, creating precedent. It is this creation of precedent that we must watch carefully. In this undeniably unpleasant instance, the absence of a cyber-bullying law in Missouri has led prosecutors to scrape the barrel for anything that will stick. I am not minimising the serious nature of the real issues. Indeed online bullying accounted for around half of all reported cybercrime in 2007. But the danger is that a precedent will be created that could eventually (and possibly quite rapidly) render posting to the internet under an alias unlawful across the board. Coupled with other measures in the UK pipeline that undermine the privacy of legitimate internet users, such as warrantless police access to web browsing logs and plans for a centralised database of all phone calls and emails, we could find ourselves tracked and ultimately prosecuted for expressing our personal opinions in private, or merely for appearing to associate with others who do. That would constitute a serious impediment to democratic freedom and must not be allowed to happen. The thin end of the wedge is now.

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