We don’t really think she was prosecuted for a TOS violation, do we?
It may not be why she was prosecuted, but it’s key to how she was prosecuted.
This does not seem like a good test case for trying to reign in over broad prosecution under the CFAA. Manning did take documents without authorization. This isn’t like someone being prosecuted for the cfaa for doing a job search on the work computer, or for checking their email. I fear this will go badly, and only for Manning, but for the sound idea that the CFAA is over broad.
This is exactly how terrible legal precedents are set. If Manning’s conviction under the CFAA is upheld, then the gate is open to apply the same law to lesser offenses (if indeed you think Manning’s actions should be considered criminal at all).
I think Manning’s actions were totally justified and should be pardoned immediately, but I do think they can fairly be construed as a legitimate violation of CFAA. This is not an especially good case to appeal the CFAA on. This is not one of those extreme cases that shows the sheer ridiculousness of the CFAA, such as a person lying about their age on Facebook and thus violating the terms of service.
Poor legal precedent is usually set by using a badly written law against a non-ridiculous defendant.
For example, the first people prosecuted under the Patriot Act were suspected terrorists—because who wants to stand up for suspected terrorists? Once the door was opened then the same overbroad law was used to go after all kinds of people.
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