So what we are left with is a plain vanilla breach of contract case leading to incarceration. This is made all the worse by the fact that, unlike the Drew juror claims, most of us either do not read or do not strictly comply with the terms-of-service agreement, which are written by lawyers to both protect the website or hosting service or, at a minimum, to limit their liability.  Thus, things like allowing your children to do a Google search violates criminal law. Using a work computer for a non-business purpose may be grounds not only for dismissal, but also for incarceration, even if no harm results.

The same concept has been repeatedly used in civil lawsuits claiming that a breach of a terms of service constitutes a "trespass to chattels." Thus, a corporate website which says something like "by using this website, you agree never to criticize this company" would not only open someone to breach of contract liability, but also to trespass prosecution.

Of course, the federal criminal law does have an exception. It permits authorized law enforcement or intelligence activities, so that the cops can lie. Entities like Perverted Justice, which pose as adolescents online to lure child predators would be repeat criminals themselves.  Children who themselves lie about their identities to ward off predators would similarly be subject to prosecution.

While the threat of actual criminal prosecution for any of these terms-of-service breaches is small, if you were to ask me — based on the Drew case — whether any of these actions were "legal," I would have to answer "no."

While we clearly do not want to encourage or reward irresponsible and malicious conduct like that Drew alleged committed, we similarly do not want to criminalize essentially innocent conduct, which is for what she was convicted.  This would have a chilling effect on a range of otherwise permissible behavior.

The trial judge has the option to dismiss the charges — either on factual or legal grounds.  Factually, there is scant evidence that Drew personally created the fictitious account or read — or had the opportunity to read — the terms-of-service agreement she is convicted of violating. For the judge to overturn the verdict from a legal standpoint, he would have to conclude that merely exceeding the scope of a terms-of-service agreement does not itself constitute a violation of a statute which makes it a misdemeanor to, in interstate commerce, "intentionally exceed authorized access to a computer and thereby obtain information."

We make lots of things crimes in this country. Spitting on the sidewalk, jaywalking, and even double parking.  Let's not add breach of terms-of-service agreements to the mix.