Dave Maass and Trevor Timm

EFF

During his first term, President Barack Obama declared October 2009 to be “National Information Literacy Awareness Month,” emphasizing that, for students, learning to navigate the online world is as important a skill as reading, writing and arithmetic. It was a move that echoed his predecessor’s strong support of global literacy—such as reading newspapers—most notably through First Lady Laura Bush’s advocacy.

Yet, disturbingly, the Departments of Justice (DOJ) of both the Bush and Obama administrations have embraced an expansive interpretation of the Computer Fraud and Abuse Act (CFAA) that would literally make it a crime for many kids to read the news online. And it’s the main reason why the law must be reformed.

As we’ve explained previously, in multiple cases the DOJ has taken the position that a violation of a website’s Terms of Service or an employer’s Terms of Use policy can be treated as a criminal act.

And the House Judiciary Committee has floated a proposal that makes the DOJ’s position law, making it a crime to access a website for any “ impermissible purpose .” For a number of reasons, including the requirements of the Children’s Online Privacy Protection Act , many news sites have terms of service that prohibit minors from using their interactive services and sometimes even visiting their websites.

Take, for example, the Hearst Corporation’s family of publications. If you read the terms of use for the Houston Chronicle, the San Francisco Chronicle, or Popular Mechanics websites, you’ll find this language, screamed in all-caps:

YOU MAY NOT ACCESS OR USE THE COVERED SITES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD.

In the DOJ’s world, this means anyone under 18 who reads a Hearst newspaper online could hypothetically face jail time. But Hearst’s publications aren’t the only ones with overly restrictive usage terms. U-T San Diego and the Miami Herald have similar policies. Even NPR is guilty, saying teenagers can’t access their “services” (including the site, NPR podcasts and the media player) without a permission slip:

If you are between the ages of 13 and 18, you may browse the NPR Services or register for email newsletters or other features of the NPR Services (excluding the NPR Community) with the consent of your parent(s) or guardian(s), so long as you do not submit any User Materials.

Some sites must have recognized the problem and crafted their policies to only forbid users under the age of 13. These include the New York Times, the Boston Globe, and the Arizona Republic. NBCNews.com uses this wording:

By using or attempting to use the Site or Services, you certify that you are at least 13 years of age or other required greater age for certain features and meet any other eligibility and residency requirements of the Site.

This means that inquisitive 12-year-olds who visit NBCNews.com to learn about current events would be, by default, misrepresenting their ages. That’s criminal by DOJ standards and would be explicitly illegal under the House Judiciary Committee’s proposal.

We’d like to say that we’re being facetious, but, unfortunately, the Justice Department has already demonstrated its willingness to pursue CFAA to absurd extremes. Luckily, the Ninth Circuit rejected the government’s arguments, concluding that, under such an ruling, millions of unsuspecting citizens would suddenly find themselves on the wrong side of the law.

As Judge Alex Kozinski so aptly wrote: “Under the government’s proposed interpretation of the CFAA…describing yourself as ‘tall, dark and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit.”

And it’s no excuse to say that the vast majority of these cases will never be prosecuted. As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.” Instead of pursuing only suspects of actual crimes, it opens the door for prosecutors to go after people because the government doesn’t like them.

Unfortunately, there’s no sign the Justice Department has given up on this interpretation outside the Ninth and Fourth Circuits, which is why the Professor Tim Wu in the New Yorker recently called the CFAA “the most outrageous criminal law you’ve never heard of.”

The potential criminalization of terms of service is a prime reason that Congress needs to overhaul CFAA and it’s certainly why the House Judiciary Committee should abandon the seemingly DOJ-drafted bill it floated recently and instead sit down with Rep. Zoe Lofgren, Rep. Darrell Issa, and others to negotiate real reform.

Are you a minor with a thirst for information? You, and your parents who vote, should together tell Congress to fix CFAA.

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