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Lou Pickney's Online Commentary

Criminal Cowherd?

Friday
April 6, 2007

"You shouldn't do this sort of thing"
-Joe the Surfer in Boogie Nights

If you haven't heard, ESPN radio talk show host Colin Cowherd has stirred up controversy -- and possibly broken federal law -- by making a call to action for his listeners to flood the website TheBigLead.com in what could be considered a Denial of Service (DoS) attack. This article on Deadspin.com has more about what happened, and why it made no sense.

Everyday Should Be Saturday provided a transcript of what Cowherd said on his show yesterday:

“You and I are straining the system, that what I heard… We occasionally, once a week… we’ll mention a website, our listeners will flee to it, and we’ll shut it down. We feel bad about this, we don’t mean to do it. It usually forces that young guy or young gal to buy more bandwidth and can be expensive. I don’t know that…but wouldn’t it be great if every day we gave out a new, young website and blew it up? If I told my audience every day–just one that’s annoying–and we could give it to them, and our audience would blow it up?

I want everyone to go to it as fast as you possibly can. When I say go, go….it’s three words. THE BIG LEAD dot com. THE. BIG. LEAD. DOT. COM. Go now.”

The question I have is, by his call to action (and indication that he wanted to blow up the site, showing that he did this intentionally), did Cowherd violate 18 U.S.C. 1030 if the stunt cost TheBigLead.com (and its hosting company) more than $5,000? And, if so, would a federal prosecutor go after him?

18 U.S.C. 1030 involves "Fraud and Related Activity in Connection with Computers" on the federal level. Here are the portions that are relevant to this situation:

Whoever knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer; and loss to 1 or more persons during any 1-year period aggregating at least $5,000 in value, shall be punished (with) a fine under this title or imprisonment for not more than one year, or both.

The term "computer" means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.

The term "protected computer" means a computer which is used in interstate or foreign commerce or communications.

Maybe it's a stretch, but Cowherd did transmit information (and a "command" as in a call to action) that intentionally caused damage (via the DoS) to the computers and servers associated with The Big Lead. Was it $5,000+ worth of damage? Cowherd had better hope not.

Even if he's not charged criminally, and if the FCC doesn't take any action against the stations involved, from a civil standpoint I wonder if it's possible that Cowherd, ESPN Radio, Disney (ESPN's parent company) and every ESPN Radio affiliate in the world that carried that part of his show (the third hour of April 5, 2007) could be held liable for damages?

I am not a lawyer, nor am I a legal expert. But the potential ramifications from this look, at least to me, as if they could be severe. The Big Lead remains down as of Friday night (that's tonight for those of you reading this hot off the presses), and there's no word on when (or if) it will return.

The sports blogging community has been up-in-arms about this, and rightfully so. I've read The Big Lead for months now, and it has provided me with information on many important stories, usually ahead of the curve of the mainstream media. What's more, it's not like TBL (to the best of my knowledge) ever wrote anything derogatory or critical about Cowherd.

This article posted on One More Dying Quail chronicles the outrage/backlash from the blogging world, and I received an e-mail tonight, purportedly from Scott Goldstein (Assistant to new ESPN Ombudsman Le Anne Schreiber, who I contacted earlier today asking her for comment), which included this message:

From Le Anne Schreiber: Rest assured, I will have something to say about the shutdown of thebiglead.com in my column next week.

It will be interesting to see how this plays out. This could turn into an unprecedented situation involving radio, federal law, liability, and other complicated issues. Or, alternately, it could blow over and be forgotten and overlooked.

If Cowherd did this as an attention-getting stunt, he succeeded. Whether he can handle the fallout remains to be seen.


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