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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