Ed. note: This post appears courtesy of our friends at Techdirt. We’ll be sharing law-related posts from Techdirt from time to time in these pages.
Last night, former President Bill Clinton joined Stephen Colbert on his TV show, The Colbert Report. As many people have noted, at the very end of the program, Colbert told Clinton that he had taken the liberty of signing him up for a Twitter account, since Clinton does not currently use Twitter (he joked that he was afraid no one would reply to his tweets). The Twitter account is @PrezBillyJeff, and Colbert sent Clinton’s first tweet live while on the air. If you’re in the US or the one or two other places that Hulu actually works, you can see the exchange below (if you’re elsewhere, blame Viacom for being stupid):
Of course, as we’ve been discussing this week, the CFAA is an awful bill concerning hacking, and needs to be reformed. A big part of the problem is that it appears to criminalize what seems like every day behavior, and the DOJ has interpreted the CFAA broadly. While not all courts agree, the DOJ has argued that merely disobeying a website’s terms of service means that you’ve violated the CFAA by accessing content either without authorization or by exceeding authorization.
Let’s jump over to Twitter’s terms of service. There, they clearly forbid impersonation:
Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
Now, you could argue that Colbert registering an account for Clinton without his permission does not reach that level, but are you confident that someone else doing the same thing less publicly wouldn’t run into problems if their tweets pissed someone off? An account that many people believe actually belongs to Bill Clinton would be highly valuable. Indeed, just overnight the account has racked up tens of thousands of followers. In the meantime, it’s not even entirely clear who actually controls the account. Colbert registered it and tweeted from it. Are any future tweets coming from Colbert or Clinton or someone else? It’s not difficult to make an argument that the account is intended to confuse others. Furthermore, if Colbert is transferring the account over to Clinton, it means that Clinton never actually agreed to the terms of service in the first place. Would that mean he is then abusing the use of the service?
While they appear to now have been deleted, according to the Washington Post, after the inaugural post done live on the air, there were a series of other tweets in which it was not clear if it was Clinton or Colbert tweeting. One had “Clinton” refer to “Colbert” as his new “BFF” and the tweets used the hashtag “#notColbertpretendingtobeme.” At the very least, there is clear confusion, and a regular person might assume that this is Bill Clinton tweeting. If it’s actually Colbert, it could be seen as a CFAA violation.
Yes, this is a stretch — no doubt about it. But that’s part of the problem with the CFAA. It is so broadly worded that simple activities like these can be twisted into a violation should someone in power wish to do so.
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