In July 2009, a federal judge in Los Angeles threw out a criminal case against a Missouri woman convicted of computer fraud stemming from a 2006 hoax on the Web site MySpace targeting a teenage girl, who later committed suicide.
According to a July 2 Los Angeles Times story, Lori Drew, of Dardenne Prairie, Mo., was convicted on Nov. 26, 2008, of three misdemeanor counts of illegally accessing a protected computer. She was scheduled to be sentenced in May, but U.S. District Court Judge George H. Wu delayed the sentencing in United States v. Drew, No. 08-582-GW (C.D. Cal. 2009) to consider the defense’s motion to dismiss the case. Wu issued a directed acquittal on all three convictions on July 2.
Drew had been accused of participating in a cyber-bullying scheme in Missouri against 13-year-old Megan Meier. Drew created a fictitious profile on the social networking site of a young man, which she used to contact, flirt with, and later reject and insult Meier, a former friend of Drew’s daughter. Meier hanged herself in her home in October 2006. (See “5th Circuit Holds MySpace Not Responsible for User Misuse” in the Summer 2008 Silha Bulletin.)
Wired.com’s Threat Level Blog said in a July 2 post that the government argued that violating MySpace’s terms of service agreement was the legal equivalent of computer hacking, a premise that Wu said he found troubling.
“It basically leaves it up to a website owner to determine what is a crime,” Wu said, according to the July 2 Threat Level post. “And therefore it criminalizes what would be a breach of contract.”
MySpace’s user agreement requires registrants to provide, among other things, factual information about themselves, and to refrain from soliciting personal information from minors and using information obtained from MySpace services to harass or harm other people, Threat Level reported. By allegedly violating the “click-to-agree contract,” Drew committed the same crime as any hacker, prosecutors claimed.
Drew had been charged with four potential felony counts of unauthorized computer access under the Computer Fraud and Abuse Act, 18 U.S.C. section 1030. Instead, the jury convicted her of three misdemeanor charges. U.S. Attorney Thomas O’Brien filed the case in Los Angeles because that is where MySpace’s servers are based. The Associated Press (AP) reported May 19, 2008 that authorities in Missouri did not file charges against Drew following the suicide because there was no applicable state law.
Drew had faced a maximum sentence of three years and a $300,000 fine under the federal statute. Although prosecutors sought the maximum, Threat Level reported that probation authorities, in a pre-sentencing report sent to the court, had recommended probation and a $5,000 fine.
The ruling is not official until Wu releases a written decision. Prosecutors will then have the option of appealing.
According to a July 3 Associated Press (AP) story, O’Brien said in a press conference that after prosecutors see the written ruling they will consider options, including an appeal to the 9th Circuit U.S. Court of Appeals.
“I’m proud of this case,” O’Brien said. “This is a case that called out for someone to do something. It was a risk. But this office will always take risks on behalf of children.”
According to Threat Level, Megan Meier’s mother Tina said she was “extremely upset with the decision” and that the family was still considering whether to bring a civil case against Drew.
“As Megan’s mom, I wanted to see her go to jail, because I think it needed to set a precedent,” Tina Meier said On NBC’s “Today” show July 3. “I think it needed to let people know: You get on the computer, you use it as a weapon to hurt, to harm, to harass people, this is not something that people can just walk away from.”
Drew’s attorney, H. Dean Steward, said in the July 2 AP story that the U.S. attorney’s office in Los Angeles should not have brought the charges in a case that originated in Missouri but was rejected by prosecutors there. “Shame on the U.S. attorney for bringing this case. The St. Louis prosecutors had it right,” Steward said. According to the July 2 Threat Level post, Steward expressed a hope that prosecutors “will just let this case end now.”
New York defense attorney Scott Greenfield had criticized the November 2008 jury verdict on his blog, Simple Justice. “Under the [jury] verdict in the Drew case, the internet is replete with misdemeanants. People provide less than 100% accurate information in filling out their profiles all the time,” Greenfield wrote in a Nov. 28, 2008 post. ”This makes many, even a majority perhaps, of Americans criminals. It’s bad when a law is interpreted in such a way that most people are criminals.”
George Washington Law School Professor Orin Kerr, who worked with Drew’s legal team during the case, also criticized the charges. “The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government’s theory in this case is that Drew criminally trespassed onto MySpace’s server by using MySpace in a way that violated MySpace’s Terms of Service,” Kerr wrote in a May 15, 2008 post on the Volokh Conspiracy law blog. “She didn’t comply with these terms, the theory goes, so she was criminally trespassing onto MySpace’s computer when she was logging into her account. … I figured it was only a matter of time before a sympathetic case came along and some aggressive prosecutor would try the argument and see if it flew.”
In a July 1, 2009 Threat Level post, Rep. Linda Sanchez (D-Calif.) praised the efforts of prosecutors. “What Lori Drew did was egregious, and it is time that she be brought to justice,” Sanchez said in a statement. Sanchez introduced the Megan Meier Cyberbulling Prevention Act before Congress in April 2009. “I applaud the work of the U.S. attorneys who have worked hard to bring Ms. Drew to justice, despite the absence of a federal anti-cyberbullying statute. … This case sheds light on how our laws need to catch up with new crimes like cyberbullying, so that people like Ms. Drew will think twice before using the internet to bully and harass innocent victims like Megan Meier.”
In a July 2 post on the technology Web site ZDNet.com, former Assistant U.S. Attorney and current Loyola Law School professor Laurie Levenson also said federal legislation was needed to deal with cyber-bullying. “Ultimately I think Congress has to deal with this issue,” Levenson said, adding, “The challenge is to draft legislation that . . . isn’t so broad that it chills people’s First Amendment rights and is enforceable.”
– Jacob Parsley
Silha Research Assistant