Famed Appeals Court Judge Worries That Allowing People To Record Police Might Mean That People Actually Record The Police

Congress Debating If Putting A Fake Name On Facebook Should Be A Felony

Legal Issues

from the how-to-turn-the-whole-world-into-felons dept

Fri, Sep 16th 2011 11:06am — Brady Kriss

On Wednesday, George Washington Law professor and former federal prosecutor Orin Kerr authored an op-ed in The Wall Street Journal, posing the question "Should faking a name on Facebook be a felony?" He was, of course, talking about the infamous Computer Fraud and Abuse Act (CFAA), which Congress is preparing to update. The CFAA, as has been noted here many times, is a federal law passed in the '80s and initially designed to combat malicious computer hacking, but which has become bloated, stretched and over-applied in the years since.

At the root of many of the arguably overreaching applications of the CFAA is the prohibition on conduct which "exceeds authorized access" to a computer system. According to Kerr:

The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don't like.

And Professor Kerr should know, he was the attorney who defended Lori Drew when she was charged with a felony for making a fake MySpace profile. The Justice Department's position that a violation of a terms of service constitutes a federal crime basically makes the Federal government the enforcer of private contracts. Got an employee spending too much time on Facebook? Turn them in to the Feds. Someone posting comments you just don't like on your blog? Call the DOJ. Or threaten to. The chilling effect alone should be enough to keep your users in line.

Would you believe that some politicians are even thinking of making the bill even worse?

Professor Kerr's primary concern expressed in the op-ed was that the CFAA was going to be amended to make any violation of the CFAA a felony. Hopefully, this won't pan out. The original Administration proposal (pdf) did increase the baseline punishment for any violation of the CFAA (including exceeding authorized access) from a misdemeanor level offense (less than one year) to a felony. But, thankfully, the Judiciary Committee didn't take the Administration's suggestion. Lets hope it stays that way as this bill makes its epic journey through the Washington legislative sausage maker.

There is yet a glimmer of rational-thought hope. Senators Grassley and Franken have introduced an amendment (pdf) which would modify the definition of "exceeds authorized access" to exclude violations of a TOS, if that's the only basis for the charge of violating the CFAA, effectively improving the CFAA instead of making it worse. Fingers crossed that the amendment makes it in.

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Filed Under: cfaa, felony, hacking, orin kerr, terms of service

56 Comments

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The eejit (profile), 16 Sep 2011 @ 11:17am

Here's an answer:
How about NO.
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dave blevins (profile), 16 Sep 2011 @ 11:19am

ower Congress's approval rating to 5% from ..
.. the miserable 12% they now have.

Hey Congress, let's get on with something important to the voters, not the lobbyists.
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monkyyy, 16 Sep 2011 @ 11:23am

Re: Here's an answer:
but THINK OF THE CHILDREN

i srsly cant think of one argument for this
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:Lobo Santo (profile), 16 Sep 2011 @ 11:23am

Re: Lower Congress's approval rating to 5% from ..
What, and risk the non-stop stream of gratis hookers & blow? Why??
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Anonymous Coward, 16 Sep 2011 @ 11:26am

FeloniesBook
I am fine with it being a felony to put a false name on Facebook, as long as it is a felony to/for 1) put misleading or false information on packaging, labeling or advertisements 2) report disinformation in the news 3) Government officials to withhold the truth in part or in full.

All of these felonies should carry a harsher penalty than putting a false name on FB.
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theDude, 16 Sep 2011 @ 11:32am

Well . . .
Its not like the country is facing any important issues currently. Reminds me of a few years back when Republicans had total control, we were in the middle of two wars and the congress was working hard on preventing two gay people from entering a property contract. Its much easier to solve "fake" problems, then to deal with real ones.
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Dark Helmet (profile), 16 Sep 2011 @ 11:32am

Re: FeloniesBook
Not to mention surprise EULAs only shown after the purchase of a product.

That whole "Gotcha, bitch!" nature of licensing has always struck me as being...you know...fucking stupid.
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blaktron (profile), 16 Sep 2011 @ 11:39am

Re: Re: Lower Congress's approval rating to 5% from ..
To be honest, if we didn't run them out of town for having affairs or sending pictures of their Wiener to vegas blackjack dealers then they wouldn't need expensive discreet illicit sex. If they could just cheat like their constituents, maybe they would relate to them more...
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blaktron (profile), 16 Sep 2011 @ 11:41am

Re: Re: FeloniesBook
But if you want to avoid that, all you have to do is re-shrinkwrap the software and return it!

Its always seemed pretty unjustifiable to have terms on the inside of a product that you can't return once you've opened it. Either put them on the outside, or let the customer return it if they don't like the terms, at least SOMETHING.
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Joshy, 16 Sep 2011 @ 11:47am

Does this mean Prince, Madonna, Carrot Top or El Bloombito are now Felons or are subject to felony charges.

What about there publicist/spokesperson that actually maintains there social media accounts can they go to jail for impersonation.

Who has standing to press charges an overzealous district attorney or whom?
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Jeffhole (profile), 16 Sep 2011 @ 11:51am

Uh-oh
I have a friend who is a writer. Several of the characters from his stories have their own Facebook pages. A few of the names aren't...well, the characters are from different planets, therefore their names are absolutely fake. So who goes to jail, there?

Our government is out of control. We need to hit the reset (commence fire) button.
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blaktron (profile), 16 Sep 2011 @ 11:53am

Well at least we know how to take over the government...
... just put it in the TOS that you now control congress. Any congressman who agrees without reading and then not taking orders from you is a felon.
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Anonymous Coward, 16 Sep 2011 @ 11:59am

Is congress actually debating this issue, or is this just another piece of non-supported legislative flotsam? Is it actually actively getting to committee, or is it just sitting on an order paper somewhere waiting to die the death of about 90% of these sorts of bills?

Brady, can you tell us when this is due to go to committee, or when we can here congress "debating" this bill?
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Jimr (profile), 16 Sep 2011 @ 12:09pm

If it means throwing some of yappy obsessive facebook 'friends' in jail for a couple of years I am in support of it.

Just think we could fill the prison with all these real world friendless facebook users and they can engage in some real social networking behind bars. Jails would become some of the friendliest and safest places around!

Also think now the politicians facebook pages will have to be run by the politicians themselves rather than handed over to office staff.

I see this as a win-win. BTW: can I legally change my name to Anonymous Coward now?
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el_segfaulto (profile), 16 Sep 2011 @ 12:28pm

Re: Re: Lower Congress's approval rating to 5% from ..
It's obvious you haven't taken the necessary poly-sci and other soft science courses needed to fully understand and appreciate how the U.S. government works. As a public service I'll do my best to enlighten you and the rest of the Tech Dirt readers.

Governments are powered by hookers and blow. If you do anything to try and cut that off you're impeding the work of the sociopaths that we elect to public office. People go into politics for the same reason they want to become rockstars, namely: alcohol/drugs, fame and fortune, and banging underage groupies. If they don't have those aspirations to strive for, we're stuck with regular people in office who don't look out for the corporate bottom-line, and without those assurances the job creators will pack up and move the jobs to a more hooker and blow friendly country.

Note: I feel no need to include a sarcasm tag and meant no disrespect at all to Lobo. In fact, I live in the only state that actually allows hookers, we don't have much blow but I hear we have a lot of meth.
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Chosen Reject (profile), 16 Sep 2011 @ 12:29pm

Awesome counter-suit
If we put this story together with the Sony TOS story that means if you sue Sony or join a class action lawsuit, and then use PSN, then not only will they try to get your lawsuit tossed out, but they could have you arrested and thrown in jail. That's one heck of a counter-suit.
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PrometheeFeu (profile), 16 Sep 2011 @ 12:30pm

I have a great plan! How about this: setup and email server. Have the response to HELO be: Do not send an email to this server. Under the CFAA this will be a violation of blah blah blah. Then use the server to send an email to all of Congress. Wait for the canned intern response and slap them all with violating the CFAA! That would be hilarious. Most definitely would not work, but oh well...
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The eejit (profile), 16 Sep 2011 @ 12:58pm

Re: Re: Re: Lower Congress's approval rating to 5% from ..
Dude, if sociopathy powered politics, I'd have dominated the world by now.
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The eejit (profile), 16 Sep 2011 @ 12:59pm

Re: Awesome counter-suit
That's not a lawsuit, that's encouraging criminality.

Wont' Sony please think of the child criminals they're making?
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NullOp, 16 Sep 2011 @ 2:08pm

DA
Only our DA Congress would think of doing this!

Please, for the sake of humanity, vote these people out at your next opportunity!

Obama, 2012 - NO!
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Anonymous Coward, 16 Sep 2011 @ 2:09pm

Re: FeloniesBook
You know that congress made it illegal to use voice stress detection on officials because they know they are lying, the principal reason was "we need to lie to people to maintain order and if they start using a truth detector then we won't be able to maintian order"
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btr1701 (profile), 16 Sep 2011 @ 2:37pm

When everything's crime...
...everyone's a criminal.
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Anonymous Coward, 16 Sep 2011 @ 3:07pm

Re: Well at least we know how to take over the government...
Sorry, won't work. Laws don't apply to members of Congress.
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Jeffrey Nonken (profile), 16 Sep 2011 @ 3:15pm

Re: Re: Re: Lower Congress's approval rating to 5% from ..
Anybody who needs the sarcasm tag for that one has obviously had their entire nervous system surgically removed. I think there's an invertebrate somewhere that hasn't figured it out yet.

Give him a minute.

Some of us caught on by the end of the first sentence. Your humor is safe with us. :)
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That Anonymous Coward (profile), 16 Sep 2011 @ 6:53pm

Let them do it. But with one provision, all bills, amendments, etc all need to be entered into a computer. That way when they try to pass off ghostwritten legislation as their own, we can throw them in jail.
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Anonymous Watcher, 16 Sep 2011 @ 7:06pm

False Personas
Well, I certainly hope this would include The Army/alphabet agencies creating hundreds of false profiles to manipulate public opinion and debate.

Oh... you didn't mean THOSE kinds of deliberately-false identities? Ok, carry on.
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Anonymous Coward, 16 Sep 2011 @ 7:27pm

Re: Re: FeloniesBook
If that is what order means, then Fuck order.

How about we use voice stress detection on officials and get rid of the stupid and corrupt ones so that we don't end up living perpetual lies that we have to keep hidden from the people by force feeding them bullshit (which for doing the officials get rewarded with cash, benefits, jobs, security, etc.) so the people don't go ape shit when they realize that it is the same mother fuckers that bend them over day after week after month after year and never bend over themselves all in the name of bringing "order" and "security."
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Matt, 16 Sep 2011 @ 9:39pm

WTF
Are they looking for a Egypt in the USA? seriously this is beyond retarded..rule of law..what a joke..it should be every citizens duty to ignore stupid laws.
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Anon1159, 16 Sep 2011 @ 10:35pm

Re: Re: Here's an answer:
The companies that buy the information you put on Facebook are probably just tired of having a list of names they can't sell
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abc gum, 17 Sep 2011 @ 7:50am

Re: Re: Re: Here's an answer:
Yes, and soon it will be a felony to not have a FB page.
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dichihuahua lovin' all chi's..., 17 Sep 2011 @ 9:11am

f/b alias's ? R Ya'll Crazy ? Oh Plz...Get Real !
What ya'll tryin' to do take all rights n priveledges away from e1....Government already takes stuff away & pushes onto ppl what they want them to do or have....Step back n Leave us's the He** alone....how's That !
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Anonymous Coward, 18 Sep 2011 @ 10:20pm

Past week, the narco-traffic killed two people and left them hanging on a bridge, if it ever comes out that they were found because of Facebook will they be willing to take the heat?

What happens when violent husbands track down their ex-wifes and kill them because of this police?

South Korea has just abandoned that approach it was not working.
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Anonymous Coward, 19 Sep 2011 @ 10:44am

"Congress Debating If Putting A Fake Name On Facebook Should Be A Felony"
Because things like a lousy economy, high unemployment, a housing crisis, a medical care/insurance crisis, a failing infrastructure, failing schools and the ongoing "war on terror" (you know, "important stuff") are just so boring.
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Brandon, 2 Nov 2011 @ 7:18pm

Hmm...
Will it fix the debt? Let's focus on that first.
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FM Hilton, 16 Nov 2011 @ 8:46am

Make what a federal crime?
If this ever became law, every single game company in existence would just about have orgasms over it. EA, especially, because they just don't believe in free speech anyway (they've been banning people for stupid words from their forums and user games.)-they'd love this.

How about banning stupid legislation from stupid people in the Congress? Would that work?
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Bear, 17 Mar 2012 @ 5:39pm

Great way to give further Nazi power to Facebook! Did you know that it's VERY easy for dangerous people to track you down and come do bodily harm to you or your children. And another thing: I've seen 98% of people who use their real names do thingsl ike make hate groups,post porno pics,post chain letters,harrass/bully other users,and do all sorts of abusive things,while people with fake names do harmless things like role play,post photos,partake in anime groups,etc.Facebook is so prejudiced against fake names that they'll goose-step and action with an arm raised upwards,and attack ANYONE with a fake name.
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Amy Freeman, 29 Apr 2013 @ 12:19pm

Congress Debating If Putting A Fake Name On Facebook Should Be A Felony
After what has happened to me on Facebook,there needs to be some penalties for fake names. Long story short, my partner was overseas in Korat Thailand on extended assignment, the young women at his work befriended him on facebook, and all used fake names. They then had a scheme where a male co-worker introduced them through a joint date, and arranged a dating service to the men on assignment. These women maintain the relationship using the false facebook alias. Then they take the mens facebook information for their partners back home, and start contacting them through Facebook. I was lucky enough to determine 2 of the women's real names. This company is the largest company in Korat, and this looks like it has been going on for years. I found out this is very common for Thai women to initiate and maintain affairs with men. Facebook has given Thai's easy access to affairs, but you can fight back.... This was a very very scary event for me and opened up me a whole new (very dark) world. Thailand is abusing Facebook to no ends. Most users have between 1000 and 2000 friends on average, many of the women have false identities, and those alias facebook women are very effectively destroying our social fabric in the United States....This is truly sad, and unfortunately a statement of how powerful social media has become.
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nunya, 21 Jul 2013 @ 8:11am

Would you believe that some politicians are even thinking of making the bill even worse?
who? names?
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Fake Facebook guy, 21 Jul 2013 @ 11:05am

Why are they bothering with this BS
How about a law that any American citizen can walk in and review all their personal computer files and bank accounts to make sure the pols are not crooks.
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robert, 21 Jul 2013 @ 1:07pm

Re: Here's an answer:
http://images.wikia.com/cardfight/images/c/c6/01-how-about-no-bear.jpg
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Anonymous Coward, 21 Jul 2013 @ 5:36pm

Re: Re: Re: Re: Lower Congress's approval rating to 5% from ..
Until someone stabs you in the back to take your place.
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Unknown, 21 Jul 2013 @ 6:00pm

For crying out loud
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Bonzai, 21 Jul 2013 @ 6:12pm

It's only a way to force us to shut up....
Do you "lawmakers" realize how many people will destroy my car for my own opinions on the leftist totalitarian state of this country? There is no way in hell I want my name shown on my pages. This guy is insane. It's the way to shut us up. The proper authorities with the right warrants can find out who a person is if a crime is committed. Why don't they let the law start doing their job again instead of forcing the citizens into a police state with EVERYTHING????
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bonzai, 21 Jul 2013 @ 6:20pm

Re: Congress Debating If Putting A Fake Name On Facebook Should Be A Felony
Truly sad that people fall for this garbage. So because someone falls for some scam from a jerk then the privacy of others has to be outed? Come on.

My account gets hit by these creeps all the time. I actually have fun toying with them then turning them into the FBI and facebook. One hit up my son and he told me about it (because parents do monitor the kid's accounts and warn them about such things right? i do) and the creep had ALL of my son's friends on its list. After "IT" trying hit up on a 12 yo IT was sent to the fbi and facebook too. Creeps are always going to be around. Don't let the government be your NANNY.
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Joel Stoner, 21 Jul 2013 @ 7:34pm

Re: Here's an answer:
Since congress has solved all our other problems.. Oh wait, they haven't. If you're not mad yet, you should be.
http://urbangrounds.com/2010/08/five-monkeys-congress/
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Dirtydeets, 22 Jul 2013 @ 12:01am

BS
what about making false birth certificates.....at hmm...
so how fuck off with the bull shit and do something the way it should be done.
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mac (profile), 22 Jul 2013 @ 9:17am

TOS
Isn't the warrenty on your new car a "terms of service"? and don't you get a reminder email that the oil is due for a change at 5,000 miles? HA! no connection you say? The DOJ has made crazier stretches.
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Jim Profit, 22 Jul 2013 @ 9:50am

I kind of hope they do. That way they're forced to talk about the lack of human rights on the internet. If people must be reveal their persons on the internet, then they're being swindled, raped, abused, and harassed on a daily basis as legal persons and thus moderators should go to jail, not those who try to wear a mask to get through the ghetto in one piece.
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Moviestarlett, 22 Jul 2013 @ 12:14pm

The government is responsible for most of the fake profiles.
"Pentagon Seeks to Manipulate Social Media for Propaganda Purposes"

(you mean to tell me i found this out from doing my own research and all #EdwardSnowden "revealed" and "leaked" was some dumb powerpoint slides that look like they were done by a 5th-grader?)

"The Pentagon is looking to build a tool to sniff out social media propaganda campaigns and spit some counter-spin right back at it.

On Thursday, Defense Department extreme technology arm Darpa unveiled its Social Media in Strategic Communication (SMISC) program. It�s an attempt to get better at both detecting and conducting propaganda campaigns on social media. SMISC has two goals. First, the program needs to help the military better understand what�s going on in social media in real time � particularly in areas where troops are deployed. Second, Darpa wants SMISC to help the military play the social media propaganda game itself."

wow. and all the MSM reports, over and over and over again, is that Big Brother is supposedly watching our every virtual move and hoarding all our telephone activity.

this is a smidge more sinister and just...well...EVIL...wouldn't you say?

they've actually developed software that generates FB profiles complete with friends, likes, photos, etc. but it's fake. the person behind the fake screen persons is a military operative component of the gov't spin machine, put there to incite conflict, debate, & confusion while using fake numbers to manipulate and control public opinion.

http://www.washingtonsblog.com/2011/07/pentagon-seeks-to-manipulate-social-media-for-pro paganda-purposes.html
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Moviestarlett, 22 Jul 2013 @ 12:19pm

Re: False Personas
THANK YOU!!
could we get some alternative media coverage on #DARPA's #SMISC????? because the MSM is never going to touch it.

people should tune out the MSM and do their own research. logging into #Facebook = plugging into The Matrix.

i say YES, make it a felony. NO fake personas on Facebook or any social media, and that INCLUDES government alphabet agencies.
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Anonymous Coward, 22 Jul 2013 @ 1:56pm

Re: Well . . .
Abortion was never a political issue until women won the right to vote. It's worked well to divide the female vote for decades. It's known as divide and conquer.
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Sam, 22 Jul 2013 @ 1:57pm

Re: ower Congress's approval rating to 5% from ..
Ha, fat chance. It's the lobbyists that get them elected, sadly. Far more important than upholding their oaths of course.
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anonymous, 23 Jul 2013 @ 7:57pm

TOS
Maybe congress should work at enforcing the laws that already exist. Like, ahem, the first amendment. FB consistently censors ideas, points of view and opinions under the guise of hate speech/violation of TOS. In america there are no hate speech laws. Until they do that they can go to hell.
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george wells, 2 Aug 2013 @ 10:14am

Likely message to be suppressed
Anti-white elites don't like the White genocide message:

Africa for Africans, Asia for Asians, White Countries for Everybody
Annihilation by Assimilation

Every white country on earth is supposed to become multicultural and multiracial. EVERY white country is expected to end its own race and end its own culture. No one asks that of ANY non-white country.

The Netherlands is more crowded than Japan, Belgium is more crowded than Taiwan, but nobody says Japan or Taiwan will solve the RACE problem by bringing in millions of third-worlders and assimilating and intermarrying with them.

Everybody says the final solution to the RACE problem is for EVERY white country and ONLY white countries to bring in the third world and assimilate with them.

Immigration, tolerance, and especially assimilation are being used against the white race.

All this immigration and intermarriage is for EVERY white country and ONLY white countries.

Anti-white is called anti-racist, but it leads to the disappearance of one race and only one race, the white race. The real aim of anti-racism is to wipe out the white race or make it a minority anywhere it exists.

It is genocide.
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Gerry Emery, 7 Aug 2013 @ 6:21pm

Congress Debating If Putting A Fake Name On Facebook Should Be A Felony
Being a fascist Liberal should be a felony, what are you talking about? You unAmerican bastards can go to hell, and I'd be willing to give you the ticket to get there.
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Robert Schonfeld, 28 Nov 2013 @ 5:39am

Facebook should look more carefully when posting liquor ads such as beer and wine and also look into their own policy guidelines as well.
it is a felony any way you see it sir .Just like going into a strip club like as if someone were to lie about there age as well may i ask.It is also illegal for alcohol mind you.The law should be reprimanded may i add ares is too soft.Other states are very harsh and in there states it would be considered a federal crime by now.If you drink and drive or get behind the wheel drunk that is against the law.Selling it purchasing it or marketing even promoting it as well.Is also against the law without a liquor license or a warrant or a permit as well.This is something nothing to be played with sir .We hear about false statements and false acquasations all the time as well even arrests mind you which could go on your permanent record as well.
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