Opinion: More thoughts on the Lori Drew case
This article was originally on a blog post platform and may be missing photos, graphics or links. See About archive blog posts.
The Times editorial Wednesday on the Lori Drew prosecution sparked a great discussion, which you can read here. That’s not surprising, given the nature of the case -- Drew joined her daughter and two other teen-aged girls in humiliating a neighboring 13-year-old girl on MySpace, who committed suicide. A jury in Los Angeles recently found her guilty of violating a federal law against computer hacking (the Computer Fraud and Abuse Act), and we opined that the charges never should have been filed. Readers who didn’t like (OK, despised would be more precise) the piece, which essentially called for the judge to throw out the guilty verdict, made a ‘by any means necessary’ argument that went something like this: any adult who torments a vulnerable child through the Internet should be punished, regardless of the legal niceties.
Here’s an example from a reader identified only as ‘Sam’:
Drew’s conduct was not free speech, but rather, predatory Internet stalking. The Times minimizes Drew’s intentionally brutal and sadistic harassment of a 13 year old. Drew’s ‘cruel hoax’ was nothing short of stalking with the intent to inflict mental suffering. MySpace explicitly prohibits ‘stalking or harassment.’ The Communications Decency Act, (47 U.S.C. § 230) states that the policy of the United States is to ensure vigorous enforcement of federal criminal laws to ‘deter and punish trafficking in obscenity, stalking, and harassment by means of computer’ which has no place in the real world or the cyberworld.
The thing is, Drew wasn’t prosecuted under the CDA (much of which was thrown out by the Supreme Court). Here’s what the law she was prosecuted under (47 U.S.C. § 1030 (a)(2)(c)) says:
Whoever ‘intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... information from any protected computer if the conduct involved an interstate or foreign communication ... shall be punished as provided in subsection (c) of this section.’
The government’s case hinged on the theory that violating MySpace’s terms of service amounted to making unauthorized access to the MySpace computer servers in Los Angeles County. Even if you accept the absurd idea of the federal government enforcing private companies’ terms of service, the key issue here is whether Drew intentionally violated those terms. The evidence in the case showed that Drew didn’t create the bogus MySpace account. Is it reasonable to expect Drew (or anyone else, for that matter) to read the service terms of every site they use? Is it reasonable to suggest she should have known MySpace barred fake identities, when almost no one on the site uses his or her real names? As another reader wrote in response to the editorial,
Lying per se is not a crime except if you lie to the guv in anyway. Lying to people on the internet does not and should not qualify as lying to the guv. I never reveal my real name on the internet, and I believe even the IDIOT feds have issued written advise to minors and others never to reveal their true name on the internet. If I were this evil woman’s lawyer, I would find those federal advisories and introduce them as evidence that the feds have told people not to reveal their real name on the internet, regardless of the terms of service agreement.
Of course, the public sentiment is so strongly against Drew because she and her confederates did more than just take an assumed name. They flirted with victim Megan Meier for a while, then suddenly turned on her with a burst of nasty messages. Seems like grounds for a lawsuit by Megan’s parents, based on state laws against intentional infliction of emotional distress. But again, consider what the feds did here. They couldn’t find a federal criminal statute that applied to the case, so they used Section 1030 to prosecute Drew for violating MySpace’s rules. Think about how things could play out if this logic were applied by other U.S. attorneys. When confronted with deplorable online behavior that wasn’t specifically addressed by federal criminal law, they could almost certainly find something in the relevant ISP’s or website’s terms of service to support an ‘unauthorized access’ argument. Voila, suddenly the feds have the basis for prosecuting people who use fake names to post blog comments accusing the president of corruption or war crimes. Shouldn’t that make you nervous?
AP Photo/Nick Ut