Jury selection begins today in the trial of Lori Drew, indicted by federal prosecutors for using false information to create a MySpace account.
Yes, that’s right: she’s not charged (pdf) with “cyber-bullying” or harassment or even causing the death of Megan Meier, the teen who committed suicide after she received mean messages from the accounted that Drew created. (Drew’s daughter, among others, had access to the account, too, and are believed to have sent the messages in question.) Lori Drew faces years in jail, under a federal anti-hacking statute, because she violated MySpace’s terms of service (TOS), which forbid giving false information when setting up an account.
If Drew is convicted, it would set a dangerous precedent for all Internet users: violate any site’s terms of service, and you could wind up behind bars. The fact the case has even reached trial should be a cause for concern.
Here’s why: Until this case, TOS agreements were generally regarded as contracts, rather than a part of criminal law, and some courts even refused to enforce them under contract law, for the reason that the user might not have known about the TOS agreement, read it, or understood it. Studies show that few people read through the fine print that accompanies all of the websites that they visit and use, and given the hyper-legalistic text that’s often in TOS agreements, few non-lawyers would stand a chance trying to figure out what they mean, in any case.
Nonetheless, a federal prosecutor in Los Angeles, where MySpace is located, decided that a “unauthorized access” in an anti-hacking statute could extend to cover cases where a person violated a site’s terms of service. Under this theory, if heritage.org’s TOS stated that only vegetarians may access this website, our meat-eating audience would be violating federal law by reading this very page.
That’s a ridiculous result, and it’s surely not what Congress intended or what a fair reading of the statute allows.
So then why is Lori Drew in the dock? One word: overcriminalization. Lawmakers and prosecutors face enormous incentives to wield the criminal law against unpopular behavior. Normally, prosecutorial discretion would have prevented charges from being brought (indeed, two other prosecutors who looked at the case declined to prosecute), but in this case, the publicity surrounding the case may have tipped the scales the other way. The result is that high-publicity cases cause the criminal law to grow, to the point that innocent individuals engaged in harmless or even productive conduct can find themselves on the wrong side of the law. Obviously, that’s an enormous risk in this case.
Recognizing that fact, the trial judge has wavered in every direction on the law governing the case, to the point that it appeared likely, at one point, that the whole thing might be thrown out before trial. That legal issue—whether Drew’s conduct could possibly be a violation of the criminal law—is still unresolved. Meanwhile, the judge has gone back and forth on whether to allow into court evidence about Meier’s suicide, which isn’t really relevant to the charges brought against Drew. For now, he’s said he’ll let it in, but this evidence could be so prejudicial so as to taint any conviction and increase the chances of a reversal at the appellate level if Drew is convicted.
We’ll be following the trial here as it progresses. For more information on the case and the risk that it poses to ordinary Internet users, take a look at our earlier paper that examines all the facts and the possible consequences.