Thomas O'Brien's MySpace Hoax

A federal prosecutor perverts the law to punish an unpopular woman.

A year ago, Jack Banas, prosecuting attorney for St. Charles County, Missouri, said he would not bring charges against Lori Drew for her role in a MySpace prank that apparently provoked a 13-year-old girl to kill herself. The reason was simple: Although Drew's actions were cruel, childish, and irresponsible, she had not broken any laws.

"We live in this country by the rule of law," Banas warned would-be vigilantes. Thomas O'Brien, the U.S. attorney in Los Angeles, should have taken those words to heart. Instead this grandstanding prosecutor twisted the law to punish an unpopular woman and in the process threatened to expose millions of innocent Americans to criminal liability.

This week a federal jury in L.A. is deliberating whether to convict Drew, 49, of violating a law aimed at computer hackers. Yet Drew is not a hacker, and the charges against her had very little to do with the behavior for which she was widely reviled.

It all began with the estrangement of two friends: Drew's daughter, Sarah, and Megan Meier, who lived down the street in O'Fallon, Missouri. In September 2006, according to testimony at Drew's trial, she began to worry that Megan was spreading nasty rumors about Sarah. Ashley Grills, an 18-year-old who worked for Drew's home-based advertising business, proposed a ruse through which they could learn what Megan was saying about Sarah: Grills would pose as a cute 16-year-old boy on MySpace, befriend Megan, and gain her confidence.

Megan fell for the flirtatious, fictitious boy, Josh Evans, who eventually turned on her, saying he did not want to be her friend anymore. Grills, who testified against Drew in exchange for immunity, said she was trying to end a prank that had gone too far. In her last message as Josh Evans, she told Megan, "The world would be a better place without you." Grills said Megan, who had a history of depression and suicidal thoughts, replied, "You are the kind of boy a girl would kill herself over." A half-hour later, Megan used a belt to hang herself in her bedroom closet.

Although O'Brien clearly prosecuted Drew because he wanted to blame her for Megan's suicide, his case officially made MySpace the victim. According to O'Brien, Drew violated the Computer Fraud and Abuse Act of 1986 by intentionally accessing MySpace's servers "without authorization." He claimed jurisdiction because the servers are located in Los Angeles County. The four charges he brought, conspiracy and three counts of unauthorized access, carry a total penalty of 20 years in prison.

But the charges did not fit the facts of the case. O'Brien claimed Drew's access to MySpace's computers was unauthorized because she violated the social networking site's terms of service (TOS) by providing false information and harassing another user. But he never presented any evidence that Drew saw MySpace's TOS, let alone agreed to them.

Furthermore, O'Brien's interpretation of the law would make criminals of us all. Shortly after the indictment, Orin Kerr, a George Washington University law professor who later volunteered as a pro bono attorney for Drew, noted, "Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon."

Even if breaking rules she never read amounted to unauthorized access, to fit the terms of the indictment Drew would have had to obtain information "in furtherance of" a "tortious act": the intentional infliction of emotional distress. But by the prosecution's own account, although Drew initially wanted to obtain information about rumors Megan supposedly was spreading, the emotional distress was inflicted by the insults of the make-believe boy Josh Evans, which did not hinge on any secrets learned via the fake MySpace account.

"Lori Drew decided to humiliate a child," O'Brien said in his closing argument. But humiliating a child, though reprehensible, is not a crime. By pretending otherwise, O'Brien sacrificed the rule of law to popular passions and thereby endangered anyone who uses the Internet without an attorney by his side.

© Copyright 2008 by Creators Syndicate Inc.

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  • ||

    When did Jean Reno become a lesbian?

  • ||

    I agree that the case has very few merits based on what Drew is being charged with.

    I still would like to see her get 20 years on the charges though.

  • Benjamin Wright||

    Lori Drew's case is about cyberbullying, which is behavior for which society has little tolerance. Cyberbullying is poison for anyone it touches. An institution like a library or a school, which provides patrons, students or guests access to the Internet, has plentiful incentive to stamp out cyberbullying within its PCs. --Ben

  • ||

    Apparently society has much more tolerance for legal bullying.

  • Fluffy||

    If that's the case, Benjamin, then perhaps they should petition their legislators to pass a law against cyberbullying, and then see if that law passes judicial review.

    They shouldn't pass a law that purports to deal with computer hackers, and then try to bootstrap that law to make it a federal crime to join a website and then misbehave. If Lori Drew is guilty, then every person who has ever been banned from a website should be in federal prison.

  • Head||

    Fluffy,

    But then our legal system would lose it's non-ironic siilarity to the "burn the witch" scene from Monty Python's Holy Grail. And that would just be too logical.

  • Head||

    similarity

    damn sticky keys...

  • Mad Max||

    What if the Terms of Service include prohibitions on "uncivil or stereotypical comments"? Will these rules be enforced by federal criminal sanctions? Or can we rely on the discretion of ambitious U.S. Attorneys to hold such abuses in check?

  • ||

    Let's see. Many of us post here under handles and not our real names. Many of us make fun (bully?) certain obnoxious posters such as Lefiti, Juanita, and NutraSweet. If I could get the Anonymity guy to kill himself, I would. So I guess many of us can be charged with a Federal crime, then.

    That makes sense.

  • ||

    This one's tough because, I think, a lot of people want to see Drew burn. It's impossible to feel any sympathy for her, but it's equally difficult to make the prosecution's case palatable.

    Would a civil case against her, by the parents of the girl she tormented, accomplish the goal of ruining her life? Seems like it would.

    I second Episiarch's feeling for Anonymity Guy(s).

  • ed||

    Lori Drew's case is about cyberbullying

    Maybe I'm old fashioned, but when I was a kid we called it teasing. We even had our own cliche: "children can be cruel." I guess computers and the internet have changed the essential emotional content of childrens' character? That is indeed a powerful force, and must be controlled. By the government, of course.

  • This is a \"Prisoner\" referen||

    If I could get the Anonymity guy to kill himself, I would.

    DIE!

    DIE!

    DIIIIE!

  • Fluffy||

    Maybe I'm old fashioned, but when I was a kid we called it teasing.

    Actually, when you get right down to it what happened is that Drew's kid claimed to have been teased by the dead girl, and Drew gave her daughter ideas on how to tease the dead girl back.

    So basically if at any time in your youth, you came home and told your dad you were being teased, if he said to you, "Well, you don't want to get in a fistfight over it, but if someone teases you, you just tease them right back!" your dad was committing Drew's "crime".

  • Cyberbully Stamper-Outer||

    Wonkette, you're next!!!!

  • ||

    Yet as Senior Editor Jacob Sullum writes, Drew is not a hacker, and the charges against her had very little to do with the behavior for which she was widely reviled.



    This is true and a serious point. However, it not unusual (nor necessarily entirely wrong) for prosecutors to act this way. Al Capone's tax evasion was treated somewhat differently from, say, Charlie Rangel's.

  • ||

    Has anyone heard "sticks and stones may break your bones but names can never hurt you" said to a child in, oh, I don't know, like 20 years?

  • ||

    I think there's a line between "teasing" and a 49-year-old woman pretending to be a 16-year-old boy online to mindfuck an unstable 13-year-old girl. And, before anyone wets their pants, I think the legal charges are bogus. Looking at Drew's picture, women's prison might be a dream come true.

    If I were a parent or family member of the victim, I would invoke my personal Albert Camus' "Just Assassins" clause, to wit, I would mete out justice in my own way and turn myself in for full punishment under the law.

    When I was a kid, sometimes one of the bullied kids had a big, fucking brother who would open a serious can of whoop ass on the tormentors.

  • ||

    This s--- is so crazy. From the article, it sounds like Ashley Grills did all the bullying. Ashley proposed the idea, made the Myspace page and flirted with Meier. The way Sullum tells it, it looks like Grills was the one who told Meier the world would be better without Meier. Lori Drew should have quickly shut this s--- down, sure, but was she sitting there over Grills shoulder typing with her? Am I reading this wrong?

  • Citizen Nothing||

    "If I could get the Anonymity guy to kill himself, I would."

    That's funny shit. Illegal, but funny.

  • Fluffy||

    This is true and a serious point. However, it not unusual (nor necessarily entirely wrong) for prosecutors to act this way. Al Capone's tax evasion was treated somewhat differently from, say, Charlie Rangel's.

    Even Al Capone's tax evasion prosecution would have been completely wrong if the prosecutor invented, just for Capone and no one else, a unique definition of tax evasion that stretched the statute to cover the fact that Capone, say, breathed the air at a friend's house. ["That air was an undeclared gift! You should have declared its cash value and paid tax on it!"]

  • Citizen Nothing||

    Damn it, Fluffy! You just gave a whole new generation of prosecutors a new line of attack!

  • ||

    Apparently teasing is no longer allowed, and everyone has to get along. Fuck freedom of speech. On a side note, a kid I work with who is in high school told me he just got suspended yesterday for a full week because a teacher heard him call a kid "gay". The kid is not gay, it was just an insult. I don't remember kids getting suspended for more than 3 days for *fighting* let alone insults. We have entered the absurd.

  • egosumabbas||

    Charging this woman with "hacking" is an insult to hackers everywhere.

  • egosumabbas||

    @Robbie:

    Good god. School has changed drastically in just the past 10 years! And people think I'm nuts for suggesting homeschool.

    If I were the parent, I'd make the kid go to school anyway, and see what the administration does about it.

  • Mad Max||

    Under the prosecution's theory, violation of any of the following terms of, say, the Facebook TOS would be a federal crime:

    "upload, post, transmit, share, store or otherwise make available any content that *we deem* to be harmful, threatening, unlawful, defamatory, infringing, abusive, *inflammatory,* harassing, *vulgar,* obscene, fraudulent, invasive of privacy or publicity rights, hateful, or *racially, ethnically or otherwise objectionable;* . . .

    "upload, post, transmit, share, store or otherwise make available content that, *in the sole judgment of Company,* is *objectionable* or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Company or its users to any harm or liability of any type."

  • ||

    If I were the parent, I'd make the kid go to school anyway, and see what the administration does about it.

    Probably call the cops. Seriously.

  • ||

    If violating TOS is a federal crime, we are all most certainly screwed. That's the essential problem with cases like Drew. Many people think she deserves some kind of punishment... so, the legal system contorts itself to mete out this punishment to satisfy the public bloodlust. Unfortunately, this makes potential criminals out of a whole bunch of people who are not Lori Drew.

  • Hugh Akston||

    Computer crimes aside, is there any precedent for someone being charged with convicted of a crime in teasing or tormenting someone to the point of suicide?

    Specific to this case, Meier had a history of instability (are there any kids who don't these days?), and Grills' actions might have pushed her over the edge. But who knows what might push suicidal people to act? Are we going to prosecute everyone who makes negative comments about work performance or hairstyles that might just be the reason some headcase kills themselves?

    Or just the ones with computerized paper trails?

  • ||

    Jacob,

    Your article states "In September 2006, according to testimony at Drew's trial..."

    Did I miss something? What trial are you talking about? In the beginning of the article, you mentioned how the prosecuting attorney in Missouri would not bring charges and there has been no indictment yet in the federal case. What trial was that in Sept. 2006?

  • Mad Max||

    SCENE: A federal prison.

    INMATE #1: So, what are you in for?

    INMATE #2: I got caught smuggling slaves into the country. I wouldn't have been caught except for the fact that some of the slaves died while they were in the hold of the ship coming over, and when I dumped the bodies, some nosy neighbor wrote reported me to the cops. What about you?

    INMATE #1: Uh, computer hacking. Yeah, I'm a real dangerous characater.

    INMATE #2: Wow, what did you do?

    INMATE #1: Well, I violated a Web site's Terms of Service. I posted this hilarious joke about Polish people, but the jury said the joke was vulgar.

    INMATE #2: Tell you what, why don't you go hang out with the pain-medication-administering doctors over there, and I'll go look for someone who's actually cool.

  • anarch||

    suspended yesterday for a full week because a teacher heard him call a kid "gay"


    Wish I taught at a school that enforced orthography that strictly. (It's ghey.)

  • ed||

    We have entered the absurd.

    No shit. After-school fist fights were a feature of my boyhood. Don't kids today watch Leave It To Beaver or The Andy Griffith Show for helpful lessons in surviving childhood?
    Maybe they should.

  • T||

    "upload, post, transmit, share, store or otherwise make available content that, *in the sole judgment of Company,* is *objectionable* or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Company or its users to any harm or liability of any type."

    Oh, man, if Drew gets convicted, I'm lawyering up. I'm gonna take a chainsaw to the mind-bendingly bad graphic design, crap twee icons, and all the other horrible shit that prevents me from enjoying myspace. On the plus side, they'll be another boom in the prison industry when all these teenagers get sent up the river.

  • Tacos mmm...||

    Did I miss something? What trial are you talking about? In the beginning of the article, you mentioned how the prosecuting attorney in Missouri would not bring charges and there has been no indictment yet in the federal case. What trial was that in Sept. 2006?


    I would assume that the testimony was from the current trial on events occurring in 2006.

  • bill||

    Wait a minute. Why is Drew being prosecuted when Grills was the one who sent the message that lead to the suicide?

  • ||

    So basically if at any time in your youth, you came home and told your dad you were being teased, if he said to you, "Well, you don't want to get in a fistfight over it, but if someone teases you, you just tease them right back!" your dad was committing Drew's "crime".

    Only if your dad orchestrated the teasing and took part in it, which would not make him a criminal but a pathetic man.

    There would be minimal outrage if it was merely Drew's daughter who scammed Megan Meier. It's the adult vs child aspect that has people so tweaked.

    Once again, I don't think she should go to prison. She does however, deserve a lifetime of high level cruel pranks.

  • ||

    Although that haircut might be punishment enough.

  • Ashley||

    Since everyone who uses computers violates dozens of different TOS every day.

    Everyone? Dozens every day?

    When all the players are lying and twisting, no one can possibly win and choosing sides becomes a matter of emotional response, not fact and fairness.

  • Paul||

    When did Jean Reno become a lesbian?

    Like, forever ago.

    Oh wait, I thought you meant "Janet Reno". Sorry, my bad.

  • economist||

    omigod they'll find out i'm not really an economist i'm just an immature 16-yr-old typing on blogs from my parents' basement and looking at porno! AND THEY'll PUT ME IN PRISON FOR IT!!!!!!!!!!!!!!!

  • economist||

    Ah, how I love spoofs. You're mostly right on the first count, flat wrong on the rest.

  • economist||

    We here all just hate TEH CHILDRUN!

  • Paul||

    omigod they'll find out i'm not really an economist i'm just an immature 16-yr-old typing on blogs from my parents' basement

    We already knew that.

  • ||

    where's the love, dogs?

  • BobDobalina||

    "Lori Drew decided to humiliate a child," O'Brien said in his closing argument. But humiliating a child, though reprehensible, is not a crime.

    Oh, Jesus, if "humiliating a child" is now a thoughtcrime, does this mean that I'm going to be prosecuted for enjoying (still, after all this time!) my favorite Hit-and-Run moment:

    http://www.reason.com/blog/printer/116602.html

  • ||

    I hate to use a worn out phrase, but where were the parents of the dead girl ? If you're gonna let your kid go online, you need to check on their activity every so often ? Any way, people (other than the parents of a minor) can't be held responsible for the actions of mentally ill individuals.

  • Richard Stands||

    The real question is: "Does she weigh the same as a duck?"

  • Lori Drew||

    The prosecutors could have been truly creative and sought to convict 'fairly' under TITLE 18 > PART I > CHAPTER 43 > § 911 (I mean this imaginary boy was certainly represented as a bright eyed new murrican boy in town no?) or better yet found a more appropriate criminal offense instead of choosing to so clearly stretch the bounds of credulity.

  • Stating the obvious||

    Richard,

    Only if it's a 'huge frigin duck'

    (apologies to both Monty Python and Boondock Saints fans)

  • ||

    I love this NYTimes description:

    "Ms. Drew, who showed little emotion during the trial, sat stone-faced as the clerk read the jury's verdict and left the courtroom quickly, her face red and twisted with rage."

    Hee hee. I guess having your personal life pretty much eviscerated by your neighbors and then being convicted of only a couple of misdemeanors can do that to a person. I'll bet she never impersonates someone online, again!

    (PS: This is just like statutory rape ... if the parents scream loud enough, charges are filed, otherwise ... who gives a damn? We're all criminals in our own, small ways.)

  • Marbury||

    BobDobalina -

    I was so hoping that your link was in fact the delightful link that it turned out to be.

    That brightened an evening of bleak law exam studying.

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