The Dubious Indictment of Lori Drew

While the degree of moral fault assignable to Lori Drew as the cause of Megan Meier's death is open to debate, it is unquestionable that Megan's suicide is tragic. That sad reality does not justify stretching federal laws against identity theft and computer-aided fraud in an effort to prosecute as a federal crime (in Los Angeles, no less) Drew's use of a fabricated MySpace account to send mean messages to Megan, her neighbor in O'Fallon, a suburb of St. Louis.

With the help of others, Drew allegedly created a MySpace account under the fictitious name of Josh Evans. "Josh" engaged in an email flirtation with 13-year-old Megan before telling her in a final message that the world would be better off without her. Megan hung herself shortly after reading that message and died the next day. More detailed background is available here and here.

The indictment (pdf) charges Drew with using a computer in O'Fallon to access the MySpace server in California, "without authorization and in excess of authorized access," to obtain information from the MySpace computer to further the tortious act of inflicting emotional distress upon Megan. The "without authorization" allegation is grounded in the claim that Drew violated her "Terms of Service" agreement by lying to MySpace when she created an account in a fictitious name.

Think about that one for a minute. (more...)

Any time you tell a fib to MySpace -- any time a little white lie appears on your profile concerning your age or weight -- you are violating your TOS agreement (see indictment paragraph 12(d)). If you then use that account to send a harassing message to someone, you've committed a federal crime ... at least in the view of the U.S. Attorney's Office in Los Angeles.

This charging decision exemplifies the growing federalization of local crime. Drew's conduct may have been reprehensible, but state prosecutors in Missouri could not conclude that it was criminal. Should a federal prosecutor in Los Angeles be entrusted with the power to punish a local incident that occurred in a different state?

We should not applaud the "novel" or "groundbreaking" interpretation of a statute that clearly was not meant to apply to harassing messages sent through bogus MySpace accounts. Columnist Barb Shelley answers the indictment succinctly:

I'm not inclined to expend much sympathy on Lori Drew, but she's clearly being indicted because of the unintended consequences of her actions. There aren't enough lawyers in the world to prosecute everybody who embarrasses and bothers people in Cyberspace.

Nor should that be a federal prosecutor's role. Is the LA office so over-staffed that it can afford to police MySpace pages in suburban St. Louis? Do we want our federal courts clogged with prosecutions for sending harassing messages via social networking sites?

Law Professor Orin Kerr agrees that this charge is "not what the statute is about." He warns:

“It’s a dangerous theory because terms of service are violated so often, and that means there’s a choice courts must face: maybe any violation of any terms of service is a federal crime; maybe no violations are a crime; or maybe some violations are a crime. If a court allows it, then it means that if the government is looking for a criminal charge against someone, they just need to show someone violated a term of service."

This prosecution is an abusive and dangerous misapplication of the law. The indictment should be dismissed and the U.S. Attorney's Office should be given a good scolding.

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    Interesting post, thanks. (5.00 / 3) (#3)
    by jerry on Thu May 15, 2008 at 07:13:12 PM EST

    My conspiracy theory (none / 0) (#9)
    by samtaylor2 on Thu May 15, 2008 at 07:21:32 PM EST
    I think the government went after this case to focus on this obviously aweful women, so they can keep us from talking about the real issue of this countries deplorable mental health policies.   Now obviously you can't stop everyone who wants to at times to commit suicide from doing so, but you would stop so many of these terrible situations by providing the care needed.  Mental health is no different then a broken leg, they are health issues that need mending.

    it sounds like the defendant (5.00 / 3) (#13)
    by bjorn on Thu May 15, 2008 at 07:27:14 PM EST
    could use some mental health services as well, and that is not snark, she truly needs help.

    Bad facts make bad law (5.00 / 2) (#6)
    by magster on Thu May 15, 2008 at 07:19:12 PM EST
    and the facts here are horrible.

    I don't know (5.00 / 5) (#7)
    by cmugirl on Thu May 15, 2008 at 07:20:19 PM EST
    Maybe this is a stretch in the eyes of the law, but as far as I'm concerned, there's a special place in He** waiting for this woman.  A grown woman plotting and using a computer (on more than one occasion)to emotionally hurt a little girl who had a fight with her daughter?  This is just despicable and she needs needs to be punished somehow.

    SOME kind of law should cover this (5.00 / 3) (#17)
    by andrys on Thu May 15, 2008 at 08:09:44 PM EST
    'Despicable' doesn't even cover such a sick SERIES of acts by an adult to smash the emotional center of a child.

     I have felt this way since I read about it.  The Internet's easy way with 'anonymous' attacks needs something to deter adults at least from engaging in this kind of thing against children.



    not every bad thing is a crime (5.00 / 1) (#40)
    by txpublicdefender on Fri May 16, 2008 at 02:46:53 PM EST
    If the woman did what she is accused of--and she denies it--then she certainly acted immorally and with cruelty.  But, not every immoral, cruel, even detestable thing people do--even something that might earn them a special place in hell--is or should be a crime.  

    This indictment is ridiculous.  By the standard of this indictment, anyone who posts harassing things on this blog could be federally prosecuted.  That's nonsense.


    Agree this is dangerous ground but (5.00 / 2) (#8)
    by Joan in VA on Thu May 15, 2008 at 07:20:38 PM EST
    there is a demand for some kind of justice. Hard to believe they couldn't find anything to charge her with. Missouri legislature needs to get busy. Shouldn't the fact that Megan was a minor mitigate the idea that it was just bothering someone as per
    Shelley? This is an adult messing with a child with known issues.

    reckless endangerment? n/t (5.00 / 1) (#12)
    by rilkefan on Thu May 15, 2008 at 07:25:17 PM EST

    Nice to know that (5.00 / 1) (#14)
    by ruffian on Thu May 15, 2008 at 07:57:41 PM EST
    all they need is a desire to punish you and they can find a charge.

    I'll sleep well tonight.

    Been going on for a while now. (1.00 / 2) (#21)
    by inclusiveheart on Thu May 15, 2008 at 08:31:13 PM EST
    My pet peeve is with the accidental incident where they become obsessed with finding someone to blame.  Accidents do happen.

    I think you misunderstood my comment. (none / 0) (#38)
    by inclusiveheart on Fri May 16, 2008 at 10:19:59 AM EST
    I was basically saying that sometimes there just aren't legal remedies for situations - sometimes a set of circumstances arise that result in tragedy where we just are out of the scope of the law.  Some accidents are like that too.  Where a set of circumstances come into synch in such a way that assigning blame is really difficult.

    I was not however trying to say that this woman's deliberate attempts to torture that child were accidental.


    Frightening (5.00 / 4) (#15)
    by ExFed on Thu May 15, 2008 at 08:02:16 PM EST
    Thank about that one for a minute. Any time you tell a fib to MySpace -- any time a little white lie appears on your profile concerning your age or weight -- you are violating your TOS agreement (see indictment paragraph 12(d)). If you then use that account to send a harassing message to someone, you've committed a federal crime ... at least in the view of the U.S. Attorney's Office in Los Angeles.

    It's actually even more extreme than that.  The reference to harassing isn't an element of the crime -- it's a trigger for the penalty provision.  The USAO's theory is that she violated 18 USC 1030(a)(2)(c) by (1) registering with MySpace with a fake name in violation of the ToS, and (2) thereafter accessing information that only registered MySpace users could see.  The allegation that she did it in order to commit the tort of intentional infliction of emotional distress is simply made to trigger the five-year statutory maximum penalty provision.  Without that allegation, my read is that it would default to the one-year provision under (c)(2)(A0.

    Think about that.  You don't even have to harass someone to commit a federal crime under this theory.  If you go to a political website like this one, register, use a false name (or false date of birth or false email address), and thereby read some content that only registered users can read, you've violated 1030, according to the LA USAO.

    Use a keyboard go to jail (none / 0) (#16)
    by jerry on Thu May 15, 2008 at 08:05:24 PM EST
    terrible law: terrible case (5.00 / 3) (#18)
    by tnjen on Thu May 15, 2008 at 08:15:10 PM EST
    Ugh. No winners here but I think we tread dangerous ground by prosecuting under these laws. I'm with others -- isn't there something else they could've charged her with? It's hard to believe they couldn't find anything.

    How about child abuse? (none / 0) (#23)
    by themomcat on Thu May 15, 2008 at 08:36:36 PM EST
    I am reminded of a case (5.00 / 4) (#19)
    by JavaCityPal on Thu May 15, 2008 at 08:16:34 PM EST
    Court TV profiled somewhere around the OJ Simpson trial. A man was on trial because he and his wife had been fighting/arguing when she used the self-depricating "maybe I should just kill myself". He went to another room, got their gun, brought it to her in the bedroom. She used it on herself, and he was on trial for aiding in a suicide.

    I think where this particular case gets so miserable is that the woman was aware the teen was on anti-depressants and was emotionally fragile. Words in writing are subject to the interpretation of the reader for tone and intent.

    I really wonder how much remorse she has. My recollection of interviews was she didn't show much.

    I've actually (5.00 / 1) (#28)
    by BrandingIron on Thu May 15, 2008 at 09:56:53 PM EST

    been following this from the beginning when it exploded and have been talking to a legal advocate who works for the Meiers.  Lori Drew has shown absolutely no remorse whatsoever for what she did, even in interviews (very rare ones) now.  BOTH of the Drews are arrogant, selfish p**cks with a sense of "WELL THEY DESTROYED OUR FOOSBALL TABLE!"  It's as if they don't comprehend what they did.  Lori in particular is a dispicable person.

    exactly. (4.00 / 1) (#25)
    by cpinva on Thu May 15, 2008 at 09:31:46 PM EST
    I think where this particular case gets so miserable is that the woman was aware the teen was on anti-depressants and was emotionally fragile. Words in writing are subject to the interpretation of the reader for tone and intent.

    given this knowledge, her actions were the proximate cause of this girl's death. she knew, or should have known, that her actions/words would potentially have a catastrophic effect on a young girl already suffering from emotional problems. i'm shocked that the local authorities weren't able to charge her with criminally negligent homocide.

    that said, the feds have no business involving themselves in a purely state issue. hopefully, the first judge they appear in front of will swiftly boot them out of his/her courtroom.


    it's not negligent homicide (4.00 / 1) (#41)
    by txpublicdefender on Fri May 16, 2008 at 02:49:57 PM EST
    You can't charge someone with criminally negligent homicide for making them so depressed that they committed suicide.

    I have a real problem with these kinds of (5.00 / 1) (#20)
    by inclusiveheart on Thu May 15, 2008 at 08:28:44 PM EST
    prosecutions, but I probably wouldn't have much of a problem if someone put hair remover in the woman's shampoo or something.  Okay, okay - letting karma handle it would be better, but this is the kind of insideous and cruel person who should be inhibited from being horrible and losing all of her hair might might help - that and losing her access to the internets.

    Lori Drew is a disgusting (5.00 / 3) (#22)
    by themomcat on Thu May 15, 2008 at 08:35:16 PM EST
    despicable excuse for a human being. Any woman who is a mother that takes advantage of a vulnerable child should be punished. This is tantamount to depraved indifference and there should be some way to hold this woman accountable for her actions. If this is the best they can do, so be it. I am a mother and I have no idea what I would do if I were in the shoes of the victims mother. This is just heartbreaking.

    Suicide brings a heightened level of (5.00 / 2) (#24)
    by JavaCityPal on Thu May 15, 2008 at 09:11:36 PM EST
    grief and guilt to family, friends, and acquaintences. The  parents of the teen who was Lori Drew's victim have divorced.

    Is a civil "wrongful death" suit appropriate?


    yes (none / 0) (#42)
    by txpublicdefender on Fri May 16, 2008 at 02:50:45 PM EST
    I think a civil wrongful death suit is wholly appropriate.  These ridiculous criminal charges, however, are not.

    The application of the statute was unanticipated (5.00 / 2) (#26)
    by digdugboy on Thu May 15, 2008 at 09:42:48 PM EST
    but logically sound, I believe. I do not think a free society has any interest in protecting the right of people to anonymously harass others through the internet or otherwise.

    The application of the statute is certainly novel, and I concede that this application was probably not a foreseeable one to the Congress that passed it. That, however, is not a sufficient legal argument to derail its application in this case.

    Frankly, I'm at a loss to state a strictly legal argument that a judge could base an invalidation of this indictment upon. If any of you criminal defense lawyers have ideas, I'd love to hear them.

    I can think of a few possibilities... (none / 0) (#32)
    by Alec82 on Thu May 15, 2008 at 10:59:45 PM EST
     ...failure to allege a crime, being one.  There may also be a venue issue.  After the government presents its case, they can move for a directed verdict of acquittal.  

    I do not think a free society has any interest in protecting the right of people to anonymously harass others through the internet or otherwise.

     Well, depends on what one means by harass...I don't know that the government should be permitted to regulate the activities, either.  Regardless, that isn't really the issue here, is it? The issue, according to the AUSA, is that she was providing false information to the myspace server for the purpose of obtaining information on the young girl.  That isn't clear.  It also isn't clear she was intentionally violating the terms of service (how many of those things do you click on without reading?).  

     The defense may not be able to get this dismissed prior to trial, but I seriously doubt any conviction will be sustained by the Ninth Circuit.    


    The accused could also have (none / 0) (#33)
    by digdugboy on Thu May 15, 2008 at 11:24:48 PM EST
    signed onto MySpace with her own name and located Megan's contact information without violating the TOS, then created a false account to harass Megal from. If I am reading the statute correctly, that would have circumvented it.

    indictment (5.00 / 1) (#29)
    by westwind on Thu May 15, 2008 at 10:09:00 PM EST
    When one destroys the life of a 13 year old. It is not a stretch to pay the penalty. At the very least her lawyer will be charging a premium to fly to LA to defend her. Mortgage the house.

    I don't know. (5.00 / 1) (#30)
    by BrandingIron on Thu May 15, 2008 at 10:12:34 PM EST

    Reading this post left a bitter taste in my mouth, but only because I've been following the case since it broke and I've talked to advocates who work with the Meiers.  In writing this you don't seem to understand how many hours the Missouri State prosecutors put into looking for something that they could charge her with under MO law.  Having not been able to find anything, they turned it over to the Feds to see if there were any Federal statutes they could nab her on.  The desire to see this woman punished for her actions is EXTREMELY strong everywhere, particularly in her own town (their neighbors despise them).

    This woman, upon learning that Megan hanged herself, tried to cover everything up and threatened Ashley to not say anything lest "she end up like Megan".  This woman is the worst type of...I dunno, I don't want to even call her a human being.  Her actions when she did this and AFTER she did this show that she has no soul/no remorse.  I hope the Feds can carry this/pin her on this because frankly, whatever punishment that this prosecution entails is not enough for this "woman".

    It's unfortunate (5.00 / 1) (#35)
    by Makarov on Fri May 16, 2008 at 01:11:36 AM EST
    there is no applicable criminal statute to charge her in MO.  The act is so despicable in nature it strains credulity.  I suppose after the so called cheerleader murder case in Texas nothing should surprise me, but this incident did.

    That said, I see no compelling reason to strain federal statutes to the point that letting a friend play on your World of Warcraft account is something that can land you in Lewisburg.  

    I am not intimately familiar with this case as you apparently are, but if the accused did, in fact, threaten this Ashley individual, then she could certainly be charged with assault, and possibly extortion and/or obstruction of justice.


    You're thinking too hard (5.00 / 1) (#37)
    by Dansara on Fri May 16, 2008 at 05:43:49 AM EST
    Did she hide her identity? Yes. Did she attempt to inflict emotional pain on somebody who SHE KNEW to be emotiolally vulnerable? Yes. Was it reasonable that the girl might harm herself after being told by what she thought, and was perported to be a young man that she liked, "The world would be better off without you." Yes.

    Did she lie about it afterwards? Yes, she tried to conseal her guilt, which is the act of somebody who is/feels guilty.

    20 years in jail is too short. If she did this to my kid she would be in the ground now. I wouldn't wait for the courts.

    Important Distinction (5.00 / 2) (#39)
    by supremecourtjester on Fri May 16, 2008 at 02:11:12 PM EST
    As a former prosecutor (now long time defense attorney) I do not think the indictment is that much of a reach.  We used to make this distinction:  When a kid who was sixteen altered his driver's license so he could drink illegally that was a crime, but when a 40 year old woman changed her driver's license to indicate she was 35 out of vanity without the intention of committing a crime we chose not touch it, even if it technically violated the statute.  If you conceal your identity to commit a crime it is a crime in my state, so if you conceal your identity to commit a tort (ie., civilly illegal) act on a vulnerable minor I don't have that much problem with it.  Prosecutors and juries should know the difference between minor, everyday conduct, and an intentionalcampaign to cause emotional distress.

    As repulsive as (4.25 / 4) (#1)
    by pie on Thu May 15, 2008 at 07:04:41 PM EST
    this woman's actions were, this indictment is off-the-wall.

    Many people already view what she did with horror.  The eventual punishment will come from her own family and friends.

    I agree. (5.00 / 3) (#2)
    by Maria Garcia on Thu May 15, 2008 at 07:09:26 PM EST
    I think she is a horrible, horrible person but to me the indictment seems like a stretch. And I'm paranoid enough to wonder why the federal government wants to get involved in this.

    Paronia is having all the facts (5.00 / 1) (#10)
    by angie on Thu May 15, 2008 at 07:22:12 PM EST
    I agree -- the feds involvement sets of those crazy little conspiracy bells in my head. This story is disturbing, though. What kind of nutjob does a 49 year old woman have to be to pose as a teenage boy and harass a 13 year old girl? Setting aside the question of "didn't she have something better to do," what in world was her motive?

    Precedent? n/t (none / 0) (#4)
    by Fabian on Thu May 15, 2008 at 07:16:07 PM EST
    Yep, that's what jumped into my mind. (none / 0) (#5)
    by Maria Garcia on Thu May 15, 2008 at 07:17:33 PM EST
    I recall the Texas (none / 0) (#11)
    by pie on Thu May 15, 2008 at 07:23:45 PM EST
    cheerleader case.  A fraternity brother of my husband actually defended her.  No one died then, however.  Didn't she finally get her sentence reduced or off on appeal?

    It may send a message, but man's inhumanity to man will continue.


    Question? (none / 0) (#31)
    by ding7777 on Thu May 15, 2008 at 10:20:18 PM EST
    When Rush or Bill O'Reilly rant against a "Liberal" and then some of their fans  send anonymous emails to the targeted "Liberal", will these people be in violation of TOS?

    Only if the LI\iberals hang themselves. (none / 0) (#34)
    by BrandingIron on Fri May 16, 2008 at 12:16:11 AM EST

    See, with this argument you fail to see that there was a serious consequence to what Drew did, applicable to the TOS.  Not all harassment ends in death.

    I Disagree (none / 0) (#36)
    by Niffari on Fri May 16, 2008 at 05:24:05 AM EST
    Lori Drew should be hung out to dry publicly. Her behavior was terribly damaging not only to the young girl who killed herself and her family, but to her own family as well. If we don't hold parents accountable for goading their children into vicious behavior that results in real harm, we are failing as a society. We can and must do better.

    This reminds me (a little) of the type of comments we heard from the parents of the girls involved in the filmed beating of a school friend last month. The parents were a whining bunch of excuse-makers but I bet they are taking their children's behavior seriously now. The kids are facing multiple felonies.