It's a Crime to Lie to MYSpace?

By Wendy Kaminer

        If the indictment of 49 year old Lori Drew for allegedly participating in a cyber hoax that drove teenager Megan Meier to suicide is emotionally gratifying, legally, it’s quite troubling.  A middle-aged woman who taunts a troubled young girl deserves to be punished, somehow, but indicting her under a federal statute that was never intended to apply to cyber-bullying and gives no notice of its potential use against cyber-bullying, threatens our liberty as well as hers.  Drew was indicted under the Computer Fraud and Abuse Act, an anti-hacking statute enacted in 1986 and amended by the Patriot Act, which enhanced its penalties and broadened its scope; but it is still an anti-hacking, national security law.  It is not a law against bad behavior on the Internet.
        How do prosecutors justify Drew’s indictment?  She has been charged with having “conspired... intentionally to access a computer used in interstate and foreign commerce without authorization and in excess of authorized access and, by means of interstate communication obtain information from that computer to further a tortuous act, namely intentional infliction of emotional distress.”  In other words, she allegedly gained unauthorized access to a computer for purposes of inflicting emotional distress.   What constituted her unauthorized access?  She allegedly provided false information to MySpace in order to establish an account for a fictitious teenage boy, the account that she and others used to bait and belittle Megan Meier.
        So, before applauding the effort to punish Lori Drew, as many have and many will, consider whether violating the MYSpace terms of service provisions should be a federal offense (Drew faces up to 20 years in prison.)  Even if you think that she deserves a lengthy prison sentence for her alleged role in Meier’s suicide, stop and think about the fact that she could be facing the same charges had Meier not killed herself and only suffered mild “emotional distress.”  The prosecution’s case rests on Drew’s conduct, not Meier’s reaction to it.

        This indictment will be challenged, and millions of computer users should hope that it’s dismissed.  Federal criminal law has expanded greatly in the past few decades. (According to one frequently cited 1999 ABA study, 40% of all federal criminal laws enacted after the Civil War dated back only to 1970.)  Federal prosecutors already have enormous power to prosecute people for acts that were once considered the business of the states, or no body’s business at all.  (Harvey Silverglate‘s forthcoming book describes the federal criminalization of everyday life.) It’s worth noting that local authorities in Missouri, where Drew and Meier lived, declined to bring charges in this case, citing the lack of any applicable law.  Even federal prosecutors in Missouri declined to prosecute.  Drew was indicted by the U.S attorney in Los Angeles, where MySpace is based, and where, not surprisingly, U.S. Attorney Thomas P. O’Brien held a press conference denouncing her actions. 

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