[an error occurred while processing this directive]

learning.now: at the crossroads of Internet culture & education with host Andy Carvin

[an error occurred while processing this directive]
August082008

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

Filed under : People, Policy, Safety

Responses

Not a lawyer so forgive me if any improper legal conclusions are drawn. Is there not an opportunity to prosecute on the basis of perjury? After all, someone attested to the truthfuleness of their profile information. Ooops, that would have been the “victim” in this case, the unfortunate suicide, Megan. Silly, isn’t that conclusion. Well how about one that suggests that in statements to authorities Megan’s mother alleges that she “approved” her daughter’s violation of the TOS for Myspace but thought it was okay since she “closely monitored her activity” Really? She allowed and encouraged her 13 year old to engage in an online relationship with a 16 year old boy. Is an emotionally challenged young girl ready to deal with the advances and possible intentions of a 16 year old? Worse, this guy was a fake. But instead of a 49 year old mother of Megan’s former friend, what if it had been a 49 yr. old pervert pedophile serial killer. And Megan had gone to meet him at the mall? And never came back? Going to prosecute the mother? Sorry all you folks that may want the head of Drew but if you get it there should be Megan’s mom on the same plate.

Read the brief. It’s well-written. For those of you who don’t want to wade through pages of legalese, consider this: If you are a bit overweight, and you set up a Match.com profile in which you describe your physique as “average” or perhaps “athletic and toned”, thus giving yourseld a big benefit of the doubt, you are violating Match.com’s TOS by stating false information. In the eyes of the US Attorney in LA, that makes you a criminal under a law that forbids “unauthorized access” because you’re violating the TOS. That is very scary, folks.

When people violate TOS with the malicious intent to injure someone through harassment, slander, or theft, then they are engaging in criminal behavior. I don’t see a problem with the government prosecuting these people. They will get to have a jury decide if they are in fact guilty. This is certainly not a perfect system. But right now it’s the only system we have in place to deal with these kinds of criminals. If the lawyers who wrote the brief want to do something really constructive, have them lobby to get better laws passed instead of complaining about the government trying to seek justice with the only laws available to them.

This is really simple. If you don’t think that Lori Drew should be drawn and quartered, hang yourself. You are educated beyond your intellect.

What is so scary about asking people to accept and adhere to a TOS on websites such as myspace, facebook, or when you access your bank account online? What is so scary about asking people to be honest ? … is it too liberal or to conservative ? or is it just common sense to be real ?

It is a good that new laws are made every day / year / century. It is sad, however, that lying and selfishness rules above the better of our selves.

I completely agree that although Lori Drew is a horrible person for doing this, she is innocent. Look people, lying is wrong, but the internet isn’t real life, if you treat it like real life people will take advantage of you and people need to know this. At the same time, the Internets anonymity is one of it’s greatest attractions. It’s a place where no one knows your race or religion or socio-economic status, but it’s also a place where everything should be taken with a grain of salt. Everytime I fill something out on the internet (besides making a purchase), I lie. The fact is you don’t know who is taking that information and what it is being used for. Sure this is a horrible thing to happen to a girl with a promising future, but people need to learn to question things more rather than taking everything at face value. It would’ve been nicer if it didn’t take a young girl to die for people to realize this, but it’s good if something positive can come out of this tragedy.

Also, I’m going to post something next that says the girl needed to die because she “was a bitch.” Hopefully if you’ve read this you’ll be able to objectively look at the rash of reactions to what just demonstrates my point mentioned above of people needing being more careful of what they believe.

Although i hate the outcome (a gal killing herself), i cannot judge Drew for what she did. Because i’m sure everyone has gotten online before and lied about this or that and broke the same type of law they are pushing down her throat. But, like the bible says, “those without sin cast the first stone”
so those without EVER LYING about something please cast the first stone at DREW!!

(I do think Drew should be ashamed of herself for doing this, playing mind games with a “KID” and especially a “KID” she knew that had emotional issues. Maybe she can hold on to that guilt the rest of her life like she should)

though i would like to see her get a felony to pay for what she did. Here is the reality, She was not malicious, she did not INTEND for this girl to kill herself, she just wanted to humiliate her. Unfortunately Drew doesn’t have the ADULT maturity to known that you can’t play mind games with a teenage girl as fragile as this one was. Sad that their are dumb adults out there like Drew, but she was not being malicious, not one person said or testified that drew said, lets get meaner and meaner so she will kill herself!!

Hi Teisho,

Let me ask you this… Every day, millions of people across the US create accounts on websites and deliberately leave out correct information because they’re worried about privacy. For example, if I’m checking out a new service for the first time, I often will include a fake birthdate because they haven’t earned my trust yet over whether they’ll use my info responsibly. Countless people create accounts with fake names for other privacy reasons, and use these services for years without ever doing anything wrong. In your mind, should there be a law preventing this? And should schools bar students from using search engines because they’re minors?

btw, if any of you listen to the show Talk of the Nation on NPR, I’ll be talking about the Lori Drew case today at 3pm ET.

Lori Drew and her daughter should burn in hell.

[an error occurred while processing this directive]