In 2007 the 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-yearold girl to kill herself. The reason was simple: Although the middle-aged woman’s actions were cruel, childish, and irresponsible, she had not broken any laws.
That did not stop Thomas O’Brien, the U.S. attorney in Los Angeles, from prosecuting Drew, and in November a federal jury convicted her of violating a law aimed at computer hackers. The theory underlying the verdict could expose millions of innocent Americans to criminal liability.
Drew’s conviction was based on her participation in creating and maintaining the MySpace persona of a fictitious 16-year-old boy who flirted with Megan Meier, a former friend of her daughter, and later turned on her. Shortly after receiving a message that said “the world would be a better place without you,” Megan hanged herself in her bedroom closet.
According to O’Brien, Drew violated the Computer Fraud and Abuse Act of 1986 by intentionally accessing MySpace’s servers (which are located in Los Angeles County) “without authorization” to obtain information. O’Brien argued that Drew’s use of MySpace’s computers was unauthorized because she violated the social networking site’s terms of service by providing false information and harassing another user. But he never presented any evidence that Drew saw MySpace’s terms of service, let alone agreed to them.
The upshot is that anyone who violates website rules, which are often vague and typically go unread, could be found guilty of a misdemeanor punishable by up to a year in jail. If the violation is deemed to be “in furtherance of any criminal or tortious act,” it becomes a felony punishable by up to five years in prison. “Since everyone who uses computers violates dozens of different [terms of service] every day,” writes George Washington University law professor Orin Kerr (who served as Drew’s co-counsel), O’Brien’s interpretation of the law “would make everyone who uses computers a felon.”