Internet Orgs Weigh in on Lori Drew Prosecution
In an interesting legal twist to the Megan Meier saga, a group of high-powered Internet law advocates have published a brief in relation to the case against Lori Drew, the woman being prosecuted in the wake of Meier’s suicide. In this brief, they argue that the government has overstepped its authority by charging Drew with a crime.
I’ve blogged about the case a number of times, so I won’t rehash all the details here, but let me offer a quick summary. Teenager Megan Meier killed herself after being bullied online by someone she thought was a local boy, but in reality was a fake account concocted by a local woman, Lori Drew. Local authorities couldn’t find any particular law that Dew had broken, so the feds stepped in and charged her with violating the Computer Fraud and Abuse Act (CFAA). Prosecutors argued that Drew could be charged because she had accessed MySpace’s servers maliciously because she violated their terms of service when she created a fake MySpace account.
While there seems to be little dispute that Drew was involved in the creation of the account, thus violating MySpace’s terms of service, a coalition of Internet law groups and educators have filed a brief in support of Drew’s defense, stating that the government shouldn’t be able to prosecute her simply because she violated the site’s terms. The brief was submitted by the the Electronic Frontier Foundation, the Center for Democracy and Technology, Public Citizen and 14 individual faculty members that teach Internet law at universities around the country.
“Criminal charges for a terms of service violation is a dramatic misapplication of the CFAA with far-ranging consequences for American computer users,” the EFF stated in a press release.
The thrust of the coalition’s argument is that prosecutors are overstretching the legal intent of the CFAA:
The Government’s novel and unprecedented response to what everyone recognizes as a tragic situation would create a reading of the CFAA that has dangerous ramifications far beyond the facts here. Terms of service include prohibitions both trivial and profound. As detailed in examples below, the Government’s theory would attach criminal penalties to minors under the age of 18 who use the Google search engine, as well as to many individuals who legitimately exercise their First Amendment rights to speak anonymously online. This effort to stretch the computer crime law in order to punish Defendant Drew for Miss Meier’s death would convert the millions of internet-using Americans who disregard the terms of service associated with online services into federal criminals. Indeed, survey evidence shows that the majority of teenage MySpace users have entered at least some false information into MySpace, and would thus be subject to prosecution under the Government’s theory…. In fact, child safety advocates like the Child Exploitation and Online Protection Centre of the British government specifically encourage children to protect themselves by providing misleading identifying information instead of real names on social networking sites…. [N]ever before in the 22-year history of the CFAA has a criminal prosecution been based on such a theory…. The Government’s proposed interpretation of the CFAA in this case is a … stretch, one that is unsupported by case law or Congressional intent, is overbroad and unconstitutionally vague, and would punish constitutionally protected activities. This Court should reject the unwarranted expansion of the CFAA and dismiss the indictment.
The brief goes on to cite a number of examples where terms-of-use violations are quite common, and theoretically, could be prosecutable if prosecutors’ interpretation of the CFAA were to be accepted. Along with the Google example cited above, they note how Facebook’s terms state that a user must update Facebook “if a user changes jobs or addresses or even her thoughts on what her favorite movie is.” They also cite what they believe to be the terms of service for the dating site Match.com, requiring users of their website and services to be either single or separated from their spouses. “The brief’s author has not been able to visit the site to confirm the report,” they note wryly, “because she remains happily married, doing so would be a violation of the site’s terms, potentially a criminal act under the interpretation of the CFAA advanced by the Government here.”
The brief also lays out the intent of the CFAA, and how they feel the government’s assertion that Lori Drew violated it doesn’t hold water:
A MySpace account holder does not gain unauthorized access or exceed authorized access to MySpace servers by disregarding conditions set forth in that service’s terms of service (TOS). The CFAA criminalizes unauthorized access to a computer system or to information on the system. Both the plain language of the statute and the legislative history show that the statute is meant to punish trespassers and “hackers,” not users who ignore or violate sites’ contracts or customers who misuse the service.
“The way she used her account, if the allegations are true, was reprehensible,” the brief acknowledges. “But unless her hateful speech rises to the level of harassment or stalking, it is not criminal and cannot be punished; attempting instead to punish that speech under the CFAA merely because it took place on the internet in contravention to a private terms of service is improper.”
“This is a novel and unprecedented response to what everyone recognizes as a tragic situation,” explained EFF Civil Liberties Director Jennifer Granick. “The CFAA is aimed at penalizing computer trespassers, but under the government’s theory, the millions of people who disregard — or don’t read — the terms of service on every website they visit could face computer crime charges. That’s a big blank check to give federal prosecutors.”
The clout of the organizations and individuals submitting the brief may indeed impact the case. Federal prosecutors charged Drew not long after public outrage against local officials who were unable to find any law Drew had allegedly broken. There was enormous public pressure for something to be done, so charges against Drew for violating the CFAA were the best they could come up with. Now the submitters of the brief are essentially calling the prosecutors’ bluff, as mainstream media coverage has died down significantly. If the defense plays their cards right, this legal brief may indeed help their arguments in support of Drew. -andy