Law in the Internet Society

The Criminal Prosecution of Lori Drew

One of the greatest values that we have derived from the fictional place known as the Internet is its potential for innovation. Brilliant minds from around the world can interact and exchange ideas and social networks can revolutionize how we communicate. However, innovation can be a two-edged sword as the law struggles to keep up with the ever-changing ways in which people use new technology to hurt others. The criminal prosecution of Lori Drew is an excellent example of one such hurdle that the law is still struggling with.

The Facts

Although the criminal prosecution of Lori Drew has received significant media attention, it began simply as a conflict between two 13 year-old girls who had once been close friends. Megan Meier and the daughter of Lori Drew went to school together in Missouri. Megan was struggling with depression and had been in therapy for most of her life. Lori Drew aided her daughter in creating a fake MySpace? account for an alias, named Josh Evans. Lori Drew and her daughter used this alias to develop a rapport with Megan Meier and they slowly gained her trust. Megan believed that an older boy was flirting with her, and even her parents noticed an upswing in her mood. Then, Lori Drew dealt Megan a crushing blow by sending a few comments through Evans that caused Megan to believe that he had turned on her. This allegedly included one comment that implied the world would be better off without Megan. The shock of this betrayal led Megan to commit suicide.

The Charge

Lori Drew was charged with several violations of the Computer Fraud and Abuse Act. The legal theory underlying the prosecution was novel. They claimed that by violating the MySpace? terms of service, Lori Drew was accessing the company servers “without authorization” or “in excess of authorization” in violation of the Computer Fraud and Abuse Act. Drew’s defense counsel immediately moved to dismiss the charges, but the Judge reserved judgment. The jury returned a guilty verdict on multiple misdemeanor charges, but acquitted Drew of the felony charges.

The Legal Analysis

Given the shocking and disturbing facts in this case, it is not surprising that the Jury returned some convictions. According to the foreperson, eight of twelve jurors wanted to find Lori Drew guilty of a felony, but a unanimous decision could only be reached on the misdemeanor charges. However, the moral outrage that Lori Drew’s actions may cause for some is irrelevant to the legal question of whether this is the precedent that we want to set for future Internet use.

Several news articles have discussed the problematic precedent that may be set by the criminal prosecution of Lori Drew. The range of the Computer Fraud and Abuse Act would be massively expanded by this decision. It effectively gives every web site’s terms of service the full enforcement power of the criminal justice system. This precedent could turn millions of Americans into criminals overnight. With the danger of this precedent, one might ask, why a judge would even consider allowing this prosecution. The problem with this case is that its novelty allows it to fall into the cracks between previously outlawed conduct. Harassment statutes in most states view harassment based on individual actions. Each occurrence is evaluated in a vacuum to determine the gravity and frequency of harassing conduct. Drew’s conduct cannot be effectively characterized in that fashion. There were only two or three aggressive comments, and it is unclear that any individual comment rose to the level aggression that most states deem illegal. Despite not being the type of conduct that traditionally falls under state harassment statutes, Lori Drew’s harassment of Megan Meier was uniquely effective. Although the aggressive comments were few and seemingly mild, the months of deception leading up to them guaranteed maximum effectiveness.

It is the dangerous and devastating nature of Drew’s novel and supposedly legal action that forced a prosecutor to seek a reinterpretation of an old law to deal with a new threat. Assuming that Drew does deserve criminal liability, the next question must be at what cost. How many seemingly innocuous Internet users must risk criminal liability so that the Lori Drews of the world can all end up behind bars? Is there a better way?

The Future

In dealing with the ever-changing innovations of the Internet, the law must also innovate. The first solution proposed to a new problem is rarely the correct one. The amicus brief filed in the case against Lori Drew makes a variety of insuperable arguments. The culpability of Lori Drew alone cannot justify expanding criminal liabilities to civil contracts and invariably criminalizing the conduct of millions of Americans. Other options that have been considered include rewriting state harassment laws to include the emerging styles of Internet harassment. Since this case, Missouri has rewritten its harassment statute. Another option might be to utilize the broad language of the Computer Fraud and Abuse Act with a different underlying legal theory. If the legal theory had been that Lori Drew attempted to use the Internet to circumvent state harassment statutes, then this case would have drawn very little attention. The range of the Computer Fraud and Abuse Act would only have been expanded to include those who intend to harass others in a novel fashion and evade liability. It is unclear exactly what effect this precedent would have, but it would be far safer than expanding liability to include millions of seemingly innocuous Internet users. It would appear to be a workable middle ground.

The lesson of the criminal prosecution of Lori Drew is that novel problems need novel solutions. There is great danger in fixating so entirely on the culpability of one person that we ignore the precedent that will be set for others. So long as we keep that in mind, we can carefully evaluate options for holding new types of criminals accountable, without endangering everyone else.

-- OluwafemiMorohunfola - 29 Dec 2008

The assertion that there was a "novel problem" here was never demonstrated. No demonstration was attempted. If the defendant had played some practical joke on the girl, knowing her fragile state, that resulted in public humiliation and suicide, the issues of legal liability would have been the same. But because someone shouted "Internet: novel problem!" you fell over in your tracks and turned off your bullshit detector.

It's always a good bet that behind any severe misuse of the criminal justice system is a prosecutor with ambitions for higher office. Where, as here, the bozo is determined to use his office's providential commitment to justice for the little people to pursue some especially scabrous malefactor who lives several states away and has no relatives who can vote in the jurisdiction, one can reasonably expect that unless all the realist judges in California have either been impeached or are taking the week off to play Pro-Am Celebrity Golf, the conviction is DOA.

This case is just a piece of supermarket tabloid fluff. You didn't turn it into anything more: you can't turn it into anything more. It was a waste of your skills, and you'd have been much more successful turning your hand to something that challenged your capacities. I'm surprised, therefore, that you went to the extent of ingenuity of suggesting a theory even more defective than the one offered at trial, namely that the Computer Fraud and Abuse Act was violated because the defendant intentionally used a computer in some way that didn't violate the Missouri harassment statute. The employment of this theory, you say, wouldn't raise any eyebrows. To which I answer, only in a city where just plain everybody does Botox.



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r2 - 05 Feb 2009 - 03:54:35 - EbenMoglen
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