8/12/08

MySpace... Suicide... Competitive Intelligence?

  • Can a suicide lead to restrictions on using the Internet for Competitive Intelligence?
  • Could a 'click-through' agreement on a company website prevent competitors from using information found on that website?
  • Is Prosecutors' Discretion the only thing that is keeping CI analysts out of the courtroom?

One of my favorite things to do is to monitor the top law firms' websites to see what are the current "hot-button" issues of the day. Kind of my own personal competitive intelligence gathering. I ran across one last week that really caught my eye because it seemed to hit on two different areas that I like, and talked about how a suicide in one area, could cause a ripple effect in the other.

Jim Eiszner, a partner at Shook, Hardy & Bacon, authored an article that tackled the idea of how broadly could 18 U.S.C. § 1030(e)(2)(B) be interpreted if a prosecutor wanted to come after a company's competitive intelligence operations. Eiszner looked at the current criminal litigation surrounding the infamous MySpace suicide case of US v. Drew, where the ultimate "meanie-mom" (Lori Drew) posed as a teenage boy in order to harass a neighborhood girl. The prank ultimately lead to the girl committing suicide, and the federal government bringing criminal charges against Ms. Drew under a statute originally intended to be used against computer hackers.

Eiszner raises three issues that a company should consider in protecting its company and competitive intelligence personnel against criminal liability:
  1. Whenever an employee retrieves information from a website containing a 'click-through' agreement, should you have your attorneys review that agreement before obtaining any information?
  2. Would the posted policies of a website (absent a 'click-through' agreement) cause potential liability on behalf of an employee obtaining information from the website?
  3. Is ignorance truly bliss? Would it be better for your employees to not be aware of the scope of authorization of a website, thus keeping them in the gray area of "inadvertent or careless" access?

One of the first things you will hear when discussing competitive intelligence, is that CI is the ethical gathering of intelligence. There is an ongoing debate on where the ethical line is drawn, and where the legal line is drawn. Usually, the ethical line is reached before you get to the legal line. However, the bringing up of the Drew case may move the legal line so far in that what you think is "ethical" may turn out to be "illegal." And that is a concept that many of us may find hard to follow.

We've all followed cases where prosecutors use RICO statutes, originally intended for organized crime activity, to go after executives; and, using Tax statutes to go after organized crime bosses; so, it shouldn't be a surprise to see a computer hacking statute being used to punish a prank-gone-wrong by a soccer mom. Now that the seal has been broken on § 1030, could we see it being used against someone gathering competitive intelligence?

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