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LA U.S. Attorney Indicts Missouri Woman for Role in MySpace Suicide

The U.S. Attorneys' Office in Los Angeles indicted Missouri woman Lori Drew for her alleged role in perpetrating a hoax on MySpace that lead to a thirteen year old neighbor's suicide, reports  Drew created a fake MySpace account and used it to impersonate a sixteen year old boy named Josh Evans to befriend, then humiliate Megan Meier, a rival of Drew's daughter.  Ultimately, Meier hanged herself after Drew-as-Evans sent her a note saying that the world would be better off without her.

In a case of first impression, Drew was charged with violating a federal law that prohibits unauthorized access to protected computers to obtain information to inflict emotional distress -- a law that has never before been applied to a social networking case.  State authorities declined to prosecute Drew after concluding that no state criminal statutes outlawed her conduct.

Notwithstanding the sympathetic nature of the facts here, two prominent law bloggers take the position that the indictment should not -- and ultimately will not -- stick.  At Volokh, Orin Kerr argues that the courts should dismiss the indictment, explaining that it effectively prosecutes her for what amounts to a violation of the MySpace Terms of Service: 

The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS).  Here's the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn't comply with these terms, the theory goes, so she was criminally trespassing onto MySpace's computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).

Kerr suggests that the government won't be able to prove its case.  Because it's a criminal case, the government must show that Drew intentionally violated the TOS, which Kerr predicts will be difficult because it's likely that Drew, like most users, never read them.  In addition, Kerr argues that while Drew did intend to harass Meier, she didn't intend to take confidential information, which is another element of the statute.

For Jeralynn Merritt, the Drew indictment is nothing more than overreaching by the federal government. She argues that the federal charging document represents a growing trend towards the federalization of local crime:

Should a federal prosecutor in Los Angeles be entrusted with the power to punish a local incident that occurred in a different state?  We should not applaud the "novel" or "groundbreaking" interpretation of a statute that clearly was not meant to apply to harassing messages sent through bogus MySpace accounts.

Kerr's and Merritt's arguments convince me.  But they also make me realize that going forward, states should  enact criminal laws to prevent and deter this kind of conduct.  Otherwise, I anticipate that victims of harassment perpetrated by social networking sites will sue to hold them accountable for failure to protect site users or guard against fraudulent use.  I'd much rather see conduct like Drew's criminalized so that the perpetrator is held responsible rather than shifting the blame to the Web site owners, and forcing all of the rest of us users to bear the cost for their misconduct. 

Posted by Carolyn Elefant on May 16, 2008 at 03:47 PM | Permalink | Comments (1)


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