Can You Go to Jail for Lying on Facebook?

During last week’s oral argument before the 9th Circuit Court of Appeals on the case of U.S. v. Nosal, 642 F.3d 781 (9th Cir. 2011), reh’g en banc granted (Oct. 27, 2011), members of the Court, including most notably Chief Judge Alex Kozinski, spent a substantial amount of time questioning the government lawyer about whether a Facebook user could be criminally prosecuted (meaning the person would face serious jail time) under the Computer Fraud and Abuse Act (“CFAA”) for lying about their personal information in signing up for a Facebook account. The full oral argument can be viewed at the following: click

The CFAA makes it a crime to gain unauthorized access to a computer. The questioning was premised on Facebook’s terms of service that prohibit a member of the public from providing false information in signing up for a Facebook account. The concern expressed by another Judge in the argument is that a violation of Facebook’s rules such as lying about one’s age would mean that access to Facebook is unauthorized and thus the person is subject to criminal prosecution under the CFAA. For a number of reasons this is a non-issue and, to the extent there is any issue, it is up to Congress, not the 9th Circuit, to remedy it.

First, it should be pointed out that the Nosal case does not involve a criminal defendant accessing Facebook. David Nosal, a Korn/Ferry International executive, was indicted for stealing confidential data from the company computers prior to joining a competitor. The issue before the 9th Circuit is limited to whether Nosal exceeded his authorized access to his employer’s computers when he violated Korn/Ferry’s computer policies that restricted the scope of its employees’ access to the company computers to “legitimate Korn/Ferry business.” Id.

Second, the fear that a minor offense such as lying on Facebook could be prosecuted is not unique to the CFAA. The wire fraud statute, for example, makes it a crime to engage in a scheme to defraud using interstate wires in furtherance of the scheme. On its face the wire fraud statute could theoretically not only be used against someone who lies on Facebook but could be applied against a college student who calls home asking his parents to wire him money for books, when in fact he intentionally lied, planning to use the money to buy beer.

No one has ever seriously argued that this potential misuse of prosecutorial discretion makes the wire fraud statute unconstitutional. Not only has no one ever been prosecuted for simply lying about their age on Facebook, the concern raised over the misuse of federal criminal statutes is totally overblown as evidenced by the fact that Department of Justice does not bring frivolous wire fraud prosecutions based on common lies that have no meaningful harmful impact. Nor is the CFAA unconstitutionally vague. The only Circuit case that has addressed this issue, U.S. v. Mitra, 405 F.3d 492, 496 (8th Cir. 2005), held that “[t]here is no constitutional obstacle to enforcing broad but clear statutes” and that “[t]he statute gives all the notice that the Constitution requires.”

The only government prosecution under the CFAA predicated, in part, on lying about one’s age in signing up for a social networking site, was brought against Lori Drew in the federal court in Los Angeles. Judge Kozinski referenced this prosecution in the oral argument. The Drew case, however, was not a prosecution predicated solely on Drew lying about her age. Drew was a 49-year-old woman who, according to the government’s indictment, used a MySpace account to harass and torment a 13-year-old girl, who, as a result, committed suicide. Drew perpetrated what has been referred to as cyberbullying by posing as a fictitious 16-year-old boy in violation of MySpace’s terms of service that required her, among other things, to provide truthful information on MySpace and not use MySpace to harass, abuse or harm other people or solicit personal information from anyone younger than 18.

No one can seriously argue that the allegations in the indictment were not serious conduct worthy of a criminal prosecution. In that case the jury convicted Drew of a misdemeanor for unauthorized access to MySpace’s website and did not convict her of the felony for doing so with the purpose of intentionally inflicting emotional distress on the young girl. The Department of Justice chose not to appeal that decision to the 9th Circuit.

Third and finally, it is not up to the courts to decide whether the CFAA is good or bad policy. Judge Kozinski responded to the government attorney at the argument stating that it “would be exceedingly bad policy to give the hands of the government the ability to prosecute everybody who has access to a computer” who might violate Facebook’s terms of service. Whether it is or is not bad policy, is not within the purview of the courts. Under the Constitution it is Congress that writes the laws, and it is the court’s obligation to enforce them.

The bottom line – someone who does nothing more than lie about their age on Facebook and violates Facebook’s terms of service could theoretically be prosecuted under the CFAA, but that does not make it unconstitutional or even a realistic concern.

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About Nick Akerman

Nick Akerman is a partner in Dorsey & Whitney’s Trial group. Nick represents clients in trial and appellate courts and arbitrations throughout the United States. His specialties include protection of trade secrets and computer data, other commercial litigation, internal investigations and white collar criminal representations.

Contact Details:
T: + 1 212 415 9217
E: akerman.nick@dorsey.com

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4 Responses to Can You Go to Jail for Lying on Facebook?

  1. avatar Rosa says:

    I think it is wrong that CFAA can “criminally” charge people for giving false personal information for signing up in Facebook unless the person use that account for criminal activity or cause harm to others.

    First, if I use Facebook only to connect with my friends, those people already know me when they connect with my facebook a/c. Whatever info I gave to Facebook they already know if it’s right or wrong. But I can keep my personal info from the public whom I don’t know but can access my facebook a/c.

    Second, I don’t know to what extent Facebook will keep my personal info. confidential. I cannot trust them the same as I trust my bank or my doctor. I am not sure if Facebook can sell my info to other companies. Besides, who’s going to read the agreement when they sign up on Facebook? I didn’t b/c I assumed it’s a routine thing, a standard agreement like I signed with getting a free PDF reader, or window player something.

    Third, people from different cultures have different customs. I think it’s uncommon for mature women to disclose their age. I put down my dad’s birthday and deathday for my Facebook a/c, not b/c I intended to lie, but b/c I am not sure how long I will keep the account, but now every time I go into my a/c, I naturally remember my dad. So, it becomes something that keeps my dad alive which I really like.

    Four, every time Facebook makes a change and every time I read negative news about them, I would think of cancelling it. So, I don’t feel vulnerable b/c I feel I am in control of what information I want to give them.

    Fifth, it’s a social networking a/c to connect with friends. There’s nothing serious in there. And to be fair I think when people sign up Facebook should display in large, bold, simple words to let people know that giving false information is a criminal offense by law so that people can decide for themselves if they want to open an a/c.

    Now I wonder does the same law applies to Youtube account?

  2. avatar Cheyanna says:

    This is an aticrle that makes you think “never thought of that!”

  3. avatar David G. says:

    I’m offering an opinion. Take its worth for what it costs you.

    I agree Facebook needs to state in big bold letters it is a criminal offense to give false info before opening the account. They also need to state that all information that you provide will remain archived and if your account is terminated voluntarily or involuntarily it will become inaccessible to those who created it. Lastly all the terms and policies that Facebook provide are subject to change at any time.

    I ask – now why would anyone give Mark Zuckerburg and Facebook, etc the rights to your life history, photographs, your friends and relatives, your opinions on everything from politics to religion, to work, and one’s life, all of which will be recorded in a commercial database that they will use to sell and market and which typically at some time will be hacked by others? Once your life is in Facebook they own it and they will only give your access rights as THEY deem necessary. American’s were once worried about ID cards. Now they are voluntarily handing over their entire lives to marketeers to forever hold and control.

    Many news outlets that offer comments are muzzling readers and forcing those who wish to comment to disclose their politics under their real name via Facebook. What is next voting through Facebook. Americans have always cherished their privacy. Zuckerburg is a pied piper who said he wanted to change that.

    Most Americans haven’t begun to understand the seriousness of what they are giving up when they sign up for social networking sites such as Facebook, and to those who in the future will control them like puppets. For those that move on to politics or influential jobs, where past behavior and friends will be scrutinized, the potential of “call it blackmail” for lack of a more subtle term, is potentially at the hands of those who own that data base.

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