The gravamen of the argument against the Lori Drew indictment/conviction is often misunderstood, but Orin Kerr helps to clarify by posting the Volokh Conspiracy’s new Terms of Service.  I guess that’s why he’s a professor and I just riff off his good ideas.

1. You will not post comments that are abusive, profane, or irrelevant. Civil and relevant comments only, as indicated by our comment policy.

2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We’re a libertarian-leaning blog, and we’re for the private sector only. Government types, keep out.

3. Your middle name is not “Ralph.” I’ve always thought Ralph was a funny name, and even odder as a middle name. No one with the middle name “Ralph” is welcome here.

4. You’re super nice. We have strict civility rules here, and this blog is only for people who are super nice. If you are not super nice, as judged by me, your visit to this blog is unauthorized.

5. You have never visited Alaska. Okay, this one is totally arbitrary, but it’s our blog and we can keep out who we want. Alaska visitors are out, too.

You need not agree to these terms.  You don’t even have to read them, since knowing that there are such a thing as terms of service are sufficient to compel you to adhere to them, like it or not.  You’re here, you’re reading, you’re mine.

As terms of service go, Orin’s are relatively reasonable.  It’s not like he requires you to wear seersucker shorts while reading.  Granted, number 3 may be pushing it, especially for those who have a family inclination toward using the name Ralph sandwiched between two other, more common names.  I have a friend named Ralph, and I would make an exception for him because I like him so much, but it’s his first name so he’s safe.

Sam Liebowitz, in a comment here, questioned my oft-argued position that what Lori Drew did failed to violate Section 1030 of the Computer Fraud and Abuse Act.  Sam is a very astute criminal defense lawyer, so I take his thoughts with the utmost seriousness.  If he questions my position, I think hard about what he says.

Aside from the express purpose of 1030 preventing computer hacking, the unlawful access element requires a person to “intentionally accesses a computer without authorization or exceed[] authorized access.”  The basis for this allegation that Drew lacked authorization was her violation of the Terms of Service.  This makes the “authorization” element of the law a moving target, to be determined by the site owner’s whim.  There is no requirement that TOS be rational or reasonable.  There’s no requirement that they comport with some notion of “common sense,” as so many people admire.  They can be anything the site owner wants them to be.  And they comprise, if this is indeed the basis for authorization, the basis for a crime.

Unlike Orin, I have only one rule for Simple Justice.  I concede it’s a rather broad rule, and I apply it arbitrarily, which I’m allowed to do since I’m not the government and under no duty to be consistent or rational.  I interpret the rule as I want, and it changes from time to time, often moment to moment.  But that doesn’t matter, since it requires no one’s approval, or even appreciation.  If you’ve opened this page, you are now subject to my rule. 

No, by reading this post you have done me no harm, no matter who you are or how you behave.  If you comment (in which case my rule applies with double force), and for whatever reason I decide that I don’t like your comment, I can delete it, alter it, edit it, change it, or make you appear to say something like “I have big ears.”  Being the blog owner, I have the ability to do any of this, should the whim strike me. 

One commenter informed me that deleting the URL attached to her comment impaired her intellectual property rights (I swear this is true), since she had a right to gain visitors to her website by virtue of commenting here.  So I fixed her wagon, since I’m not putting up with any commenter laying claim to rights in my blog.  I can do that.

I personally would like to know who every person who reads Simple Justice is, including every detail about you.  No, not just salient details, but salacious ones as well. Photos would be helpful.  Hey, it’s my blog and that’s what I want.  So all of you who deny me this information are going on my naughty list.  I’m giving you notice, though I don’t have to.

And then there’s the people who are smarter then me, make better arguments then me, point out something stupid I’ve written and make me look foolish.  You folks are deep trouble.  If this is my blog, I get to look like I know what I’m talking about, so you aren’t allowed to show me up.  And you know who you are, so don’t try to hide now.  Too late.

I can do all this, if I’m so inclined.

What I cannot do is make you, dear reader, dear commenter, dear human being, a criminal because of my arbitrary and capricious whims as expressed in my idiosyncratic terms of service.  I cannot turn you from good person to venal.  I cannot make your perfectly reasonable expectations illegal by my wholly unreasonable ones.  I can be as wacky as I want to be here, but I cannot use the criminal laws of Title 18 of the United States Code to back me up. 

Until now, after the Lori Drew case.  Suddenly, all the absurd nonsense that I might decide to establish as my terms of service take on actual meaning, if this conviction is to stand.  It sounds ridiculous when put his way.  That was Orin’s point.  That’s my point.  I hope this has helped to clarify the problem