If California prosecutors have their way, Digg founder Kevin Rose could easily be found guilty of felony computer hacking for widely-reported actions he took yesterday.

Rose set up a Twitter account yesterday pretending to be his cold, which amazingly accrued during the previous 24 hours over 787 followers:

@kevinscold: hanging out w/@kevinrose, making his head hurt and nose stuffed up… hopefully he’ll take me to @digg tomorrow.

Funny, but is it legal?  As both we and Techdirt’s Mike Masnick have explained over the last few month, a very dangerous precedent is being set in the trial of Lori Drew in the aftermath of teenage Megan Meier’s cyberbullying and subsequent suicide. Kevin’s actions in creating a fake Twitter profile for his recent cold mirror the actions Lori Drew is being accused of doing on MySpace.

Back in May I noted what a stretch it was to call the act of creating a fake profile on MySpace “accessing a protected system.”

Only in the biggest stretch in the sense of the word can you call MySpace a protected system, especially when what all Drew did was click on a very prominent sign-up button, and then enter false information for the personal data.

Mike Massnick noted that developments have occurred in the case yesterday:

While the judge in the case decided not to dismiss the case, he apparently has decided that evidence of Meier’s suicide will not be allowed in the case. This, at least, is a good decision. The lawsuit itself has nothing to do with the suicide, and allowing it to be used in front of a jury would likely lead to the same emotional response that resulted in the original charges being filed. Of course, with the case getting so much widespread publicity, you’d have to imagine that many jury members will already be familiar with what happened in the case.

The fact that so many potential jurors will already be familiar with the story is exactly the problem with the judge deciding to let stand the case, despite the strong reasons for dismissal. This means that even though said jurors will likely be instructed not to take the mitigating circumstances of Megan’s death into consideration, they will.

This will set an unfortunate precedent for the future. It’s important to note that Lori isn’t being prosecuted for what she did with the fake MySpace profile, only that she set one up.

I don’t think that realistically those of us that set up a joke profile like Kevin’s can expect prosecution for every frivolous act. On the other hand, it does set up the dangerous situation in which we’re all liable for criminal prosecution at any moment. By making innocuous actions criminal, it completely devalues and blinds law enforcement to actual online criminal behavior.

In an age where anyone’s free speech becomes illegal, only unpopular speech will be prosecuted. In other words - was harassing a young woman and taunting her to the levels of extreme emotional distress immoral and wrong? You’d be hard pressed to find someone to say no to that. Does that mean that the law should be perverted so that she can face justice by way of the legal system? I say no - the cost to all of us is simply too great.

We’ve all created fake profiles similar to what Kevin did yesterday, and if Lori Drew’s prosecutors have their way, we could all see headlines like the one above with our names in Kevin’s spot, and the convictions will be a lot more easy for prosecutors to achieve.

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