"MySpace mom" Lori Drew has had her misdemeanor guilty verdict overturned by the federal judge handling the case, the LA Times reports. Violating a website's terms of use is not, it seems, a federal crime after all.
Horrible things aren't always crimes
The guilty verdict against Lori Drew, prosecutors crowed, would send an "overwhelming message" to online bullies. Though she escaped conviction on felony charges, the 49-year-old Missouri mom could have still faced three years in prison or fines of up to $300,000 for launching an online harassment campaign that ended in the suicide of a teenage neighbor. Drew was due to be sentenced today.
But the "message," legal observers worried, may be that anyone who uses a website without paying close attention to those ubiquitous Terms of Service risks committing a federal crime. The judge shared those concerns.
Drew's story is, by now, familiar: Concerned that her daughter Sara was being badmouthed by a former friend, 13-year-old Megan Meier, Drew took protective parenting way too far. Together with Sara and an employee, Drew created a MySpace account for a fictional teen boy, "Josh Evans," who would extract evidence of Megan's trash talk. But after luring the girl in with flirtatious banter, the prank took a crueler turn, and "Josh" unleashed a barrage of vicious insults—publishing a number of Megan's intimate messages to salt the wound. The sudden betrayal proved too much for Megan, who had a history of depression: The girl hanged herself in her closet on an October afternoon in 2006.
The story provoked widespread outrage, both in Drew's hometown and around the Internet. But when local authorities determined that Drew and her accomplices did not appear to have violated any criminal laws, California-based U.S. Attorney Thomas O'Brien stepped in, claiming jurisdiction on the grounds that MySpace's servers were located in Los Angeles.
O'Brien had a legal theory as unorthodox as his assertion of authority. MySpace may be full of bogus or pseudonymous profiles, but the site's terms of service technically require all users to provide "truthful and accurate" registration information. Since use of the site is conditional on acceptance of those terms, prosecutors argued, use in violation of those terms constituted "unauthorized access" to MySpace's computers. And "unauthorized access" violated a provision of the federal Computer Fraud and Abuse Act intended to apply to computer hackers.
"Unauthorized access" is a mere misdemeanor—and that's all the jury was willing to find Drew guilty of. But the charge can be elevated to a felony if that access is "in furtherance" of some other illicit act, whether a crime or a civil tort. So, for instance, upload a few minutes of copyrighted video to YouTube, and you've violated the site's terms of service while simultaneously committing copyright infringement. Congratulations, you're a felon!
The prosecution's theory brought together some strange bedfellows in opposition to the criminalization of ToS violations. The Electronic Frontier Foundation filed an amicus brief calling the case a threat to online free speech. And the conservative Heritage Foundation called the prosecution an affront to the rule of law, warning, "If Lori Drew is convicted, we all, as Americans, will have to suffer the greater consequences." A New York Times analysis in the wake of the verdict opened with the rhetorical question: "Is lying about one’s identity on the Internet now a crime?"
Lori drew and her cohorts testified that they hadn't read MySpace's terms of service before embarking on their harassment campaign. Most people probably don't—and there's some reason to think that's a good thing. A study published in October 2008 estimated that if everybody read the privacy policies on websites they frequented, the aggregate time lost would impose costs of up to $365 billion in lost productivity.
Judge George Wu has now concluded that Drew's behavior was not in fact a violation of the Computer Fraud and Abuse Act; his written opinion explaining that conclusion will appear next week. He appears to have concurred with the EFF, however, that "by its plain terms, the Computer Fraud and Abuse Act prohibits trespass and theft, not more contractual violations of terms of use."
Because no facts are in dispute—only matters of legal interpretation—Wu has the power to override the jury's verdict in the case.
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