EFF Defends Lori Drew

The Electronic Frontier Foundation (EFF) and several other groups have filed an amicus brief in defense of Lori Drew, the woman whose pseudonymous Myspace bullying led to the suicide of 13-year-old Megan Meier. Drew was indicted in May under the Computer Fraud and Abuse Act (CFAA), for violating Myspace's terms of service agreement by posing as a teenage boy in order to harass Meier.

In addition to questioning the CFAA's applicability to Drew's actions, the EFF argues (pdf) that prosecuting Drew for misusing Myspace would then make it possible to prosecute anyone who has ever used the InterWebz to anonymously harass someone:

The EFF says that a MySpace user doesn't gain unauthorized access to MySpace's servers by disregarding the ToS, which is what the DoJ's reading of the CFAA would criminalize. Additionally, the groups argue that the legislative history of the CFAA supports the view that it's meant to prevent trespass and theft on computers or computer networks, not improper motives or use. The EFF and CDT believe that holding Drew criminally liable for violating MySpace's ToS would be an "extraordinary and dangerous extension of federal criminal law," as it would turn practically everyone into federal criminals.

They point out that even checking out the popular dating site Match.com for the mere purpose of research into this case would have turned the brief's author into a criminal, as she is married and the ToS prohibits those who are not single or separated from using the site. "[T]he Government's theory would attach criminal penalties to minors under the age of 18 who use the Google search engine, as well as to many individuals who legitimately exercise their First Amendment rights to speak anonymously online," adds the brief. Although the groups agree that Meier's death was a tragedy and that there is a heavy desire to hold Drew accountable for her actions, they believe the First Amendment rights of citizens outweigh the "overbroad" interpretation of the CFAA in order to prosecute her, and urge the court to dismiss the indictment.

The spotlight on anonymous Internet harrassment is growing bigger and brighter. As has been the case with Jason Fortuny (and distasteful exercises of the First Amendment in general), the scorn that journalists, government officials, and the general public have heaped upon Drew's head is punishment enough. So instead of wasting time, money, and energy on attempts at dragging such spats into the court system, why not encourage vigilantism? You know, turn the tables by posting the names and contact info of the InterWebz' most notorious villains? Users with some sort of ethical compass can unmask these creeps in forums and confront them in the same public spaces that they use to bully peaceable users. System administrators for sites like Wordpress and Blogger could go after accounts that contain excessively malicious material—Blogger already deletes spam blogs. (Disclaimer: I'm not crazy about that last idea, but I vastly prefer it to having my web writing under the jurisdiction of the CFAA.)

I wrote about Jason Fortuny's involvement in the Meier story here. Mike Godwin wrote about "community standards" and the Internet for reason here.

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  • ||

    Good. Being an immature, evil, psycho bitch is not a crime.

  • ||

    How about the webmasters and site hosters exercising some responsible moderating and make an effort to eliminate this crap from their site? That's a pretty basic "ethical compass." If someone pees on your lawn, do you hope one of your neighbors with show some gumption and do something? Admin tools and IP trackers are cheap and effective. Use them, please.

  • ||

    If someone pees on your lawn, do you hope one of your neighbors with show some gumption and do something?

    What if your lawn is so big you can't find all the pee spots? A good troll doesn't have to curse, and may not be easily distinguished from a reasoned post - it can be hard to find assholes without moderators to do it.

  • Naga Sadow||

    Jeff P,

    Wouldn't that increase the potential liability of the site's owner?

  • Neu Mejican||

    Free speech issue?

    I am not so sure.

    Harassment = speech?

    Is speech an act as well as speech?
    If that act is an assault (verbal assault) does it matter if it is done in person or on-line?

    As for the particulars of the charges, I do think they may be stretching, but I see a lot of traction on that slipper slope towards "prosecute anyone who has ever used the InterWebz to anonymously harass someone."

  • Episiarch||

    It's amazing how when anything bad happens, the government goes down any avenue it can to find a way to punish someone with criminal charges. Girl commits suicide? Let's bend the law to criminally charge her taunter. Kids drink at a party and crash and die on the way home? Charge the parents of the kid who threw the party with criminal charges. And so on.

    It's almost as if the government likes to bring force to bear on every situation, thereby proving its supposed monopoly on force. Imagine that.

  • ||

    How about the webmasters and site hosters exercising some responsible moderating and make an effort to eliminate this crap from their site?

    Because as soon as a host begins actively vetting the content on their site, they become liable for all the content on their site. As long as they are a pure "conduit," they are much harder to tag with liability.

    So instead of wasting time, money, and energy on attempts at dragging such spats into the court system, why not encourage vigilantism?

    Well, if outing someone using an anonymous handle is wrong when done by a troll, its wrong when done to a troll.

    Isn't arguing for outing trolls the same as arguing for torturing terrorists (albeit on a much smaller scale)? They did it first, so we can do it to them?

  • Guy Montag||

  • ||

    Good. Being an immature, evil, psycho bitch is not a crime.

    That pretty much sums it up. When Lonewacko or Donderoooooo does the honorable thing commits seppaku, who at H&R gets prosecuted?

  • ||

    Naga is correct. If they say they are monitoring or make a good faith effort at monitoring, then they are even more on the hook then if they just left it the wild west.

    This is why fake security cameras are considered such a bad idea. Lawsuit city.

  • ||

    Reason.com has a history of banning commenters, usually short-term. A friend of mine was recently banned from Daily Kos. Granted both these examples were for content and not behavior, I don't see why the same principle wouldn't apply. If a moderator bans a spambot, is he then responsible for the honesty of all advertising on his site?

    As someone who has had to put up with (and abandoned irresponsibly moderated chatrooms because of) having his girlfriend subjected to everything short of "wrapped-in-cling-film" slash fiction (if it exists, please don't tell me), I would give real money to someone who could launch a successful DoD attack on one of these diseased fucks.

  • Rob Sama||

    What abut a standard wrongful death civil suit? Why wouldn't that be the preferred method here?

  • Episiarch||

    Reason.com has a history of banning commenters, usually short-term.

    Not recently, unless they do it silently.

  • Ska||

    NM -

    I think the problem is that they're prosecuting her for violating the website's terms of service by registering with a fake name and information. The harassment isn't being addressed directly, nor is it the crime she's being charged with.

    If Ms. Drew was found guilty of criminal charges for violating an EULA or website's ToS, then many web users (or software users I would guess) would be committing the same kind of crime under the CFAA, regardless of whether any harm was done to anyone.

    That's my understanding at least.

  • ||

    The EFF and CDT believe that holding Drew criminally liable for violating MySpace's ToS would be an "extraordinary and dangerous extension of federal criminal law," as it would turn practically everyone into federal criminals.

    We're not already?

  • Lord Jubjub||

    The only crime I might see committed in this case is depraved indifference. If Drew taunted Megan with the knowledge that Megan would likely commit suicide, then there might be some criminal behavior.

    Is it a crime to drive someone to suicide (especially if you intend to do so)?

  • ||

    A group by the name "alt.hackers.malicious" actively go after NAMBLA members and public shame them, etc.

  • Elemenope||

    I agree with anon.

    Crap.

  • ||

    The truly malicious trolls (the kind that cause real-world damages, as described in NYT magazine recently) act as they do because they see no possibility of being tracked down and having their heads caved in by their victims.

    Obviously, in the future, if tracking down the hackers was easier for the less skilled, malicious harassment would be less frequent in that future.

    But a company like Google could end malicious trolling tomorrow if they made a credible sounding commitment to expand the range of traffic they were caching and working on a system, right now, that would, when eventually completed, allow easy backtracking of activity taking place today, then the trolls would face some real world decisions today.

    The message would be "the tracks you are laying today will, in 3 or 4 years, lead right back to you". It might have an effect.

  • ||

    Shouldn't this just be treated as if she said these things to the girl in person? If that isn't a crime, neither is this, the ToS has nothing to do with it. It's a question of whether or not it's a crime to drive someone to suicide, and what constitutes "driving". The EFF is absolutely right in their position.

  • ||

    For the record, I would expand the definition of "internet harrassment" to include the flagrant forwarding of chain emails, patently false urban legends, vaguely theistic feel-good poetry, animated GIFs of kittens and fairies, and any of the other stuff that clogs the world's bandwith and slows the glorious flow of pirated music and porn.

  • ||

    It's amazing how when anything bad happens, the government goes down any avenue it can to find a way to punish someone with criminal charges.

    What else can the govt do? This is not so much due to some moral defect in govt, as it is the predictable result of an electorate that demands the govt DO SOMETHING in response to every misfortune.

    Is speech an act as well as speech?
    If that act is an assault (verbal assault) does it matter if it is done in person or on-line?


    Verbal assault isn't assault, any more than a power plant is a member of the plant kingdom.

  • ||

    Shouldn't this just be treated as if she said these things to the girl in person?

    I think that in person, it would've be a hell of a lot harder to convince the girl that she was an interested 15 year old boy.

    That said, I think the proper punishment for Mrs. Drew is for people to react with revulsion and shun her when the find out who she is and what she did.

  • ||

    What a lot you guys don't seem to understand is that the parents who created the fake account and caused the suicide were well aware of this girl's mental condition and depression. They knew what their actions could lead to and I wish they would be held responsible. Of course I'm just as libertarian as any of you guys so I don't know the best way to do that. Part of the problem is that they can only charge her for violating the terms of service rather than the crime they actually committed.

  • ||

    Sorry for the double post but lord jubjub seems to be on the right track.

  • ||

    Verbal assault isn't assault, any more than a power plant is a member of the plant kingdom.

    That's not totally true. First, assault is the threat of violence followed by a show of force (in the U.S.). Battery is the actual act. In this case, however, neither seems to apply.

  • Ska||

    Which is why a civil suit makes more sense than a criminal suit that would make everyone else in the country a criminal.

  • Elemenope||

    And then anon ruined that rare mote of agreement immediately @ 1:02pm.

    What business is it of Google's to make it *easier* for one person to track down another? If they did such a monumentally stupid thing, they'd bleed customers by the boatloads.

  • Neu Mejican||

    I'll go with Marcvs over Occam on the assault question.

    I think the crux of the issue is covered by Robbie, but, of course, the fraud could not have been pulled off without remote communication...so let's say it should be treated the same as if she had done it over the phone.

    Ska,
    Like I said above, I see a lot more traction on that slope than you. This would not set a precedent for prosecution against everyday anonymous name-calling on the internet.

    A civil suit, of course, makes more sense.

  • ||

    There are a couple strange things about this case and the reaction to anonymous trolling in general.

    First, had the girl killed herself because a real meatspace boy had led her on and then dumped her, even if with the intent of doing just that, we'd call him an asshole, but there's nothing criminal there. It probably happens more often than any of us would imagine, although most girls don't kill themselves over these things. So we are upset by the fraud that anonymity makes possible.

    Second, we all benefit from countless fraudulent presentations that the online world makes possible! Have five guys in five different states who want to start a business? Your customers will never know you're working out of your respective spare rooms if your web and email presentations are up to the task. Looking a little heavy or grey in a photo? Touch it up with Photoshop. Don't have anything interesting or witty to say in an email? Copy and paste from a website. Can't remember birthdays and anniversaries? Have your calendaring program remind you with an email or text message.

    We all want a little bit of defrauding. Even the young teenage girl in this case wanted to be defrauded. We just don't want it carried too far. And while the fraud we invite and tolerate online is much higher than in meatspace, the threshold where we won't tolerate it online is quite a bit lower.

  • Guy Montag||

    Marcvs,

    A group by the name "alt.hackers.malicious" actively go after NAMBLA members and public shame them, etc.

    alt.revenge was a good one too, back in the day. Plus it had lots of other entertainment.

  • ||

    individuals who legitimately exercise their First Amendment rights to speak anonymously online

    The 1st does not grant nor imply a right to remain anonymous while freely speaking.

    With that said, this should not be a criminal act.

  • Guy Montag||

    Tbone,

    The 1st does not grant nor imply a right to remain anonymous while freely speaking.

    That was always my impression. More like you have no claim/recourse against someone for truthfully identifying you as the author of something. I am sure there is a shorter version.

    The first time I have heard the claim of right that you quoted was from the EFF quite a while ago. Any idea on the origin or if it has been given any modern legal traction?

  • Josh||

    [i]Second, we all benefit from countless fraudulent presentations that the online world makes possible! Have five guys in five different states who want to start a business? Your customers will never know you're working out of your respective spare rooms if your web and email presentations are up to the task. Looking a little heavy or grey in a photo? Touch it up with Photoshop. Don't have anything interesting or witty to say in an email? Copy and paste from a website. Can't remember birthdays and anniversaries? Have your calendaring program remind you with an email or text message.[/i]

    None of those are fraudulent.

  • Elemenope||

    The 1st does not grant nor imply a right to remain anonymous while freely speaking.

    No, it doesn't, but I imagine most modern traction for the idea would live (albeit uncomfortably) in the not-so-warm cocoon of nebulous privacy rights that SCOTUS has seen fit to occasionally find in the 4th, 9th, 10th, and 14th Amendments.

  • Elemenope||

    None of those are fraudulent.

    True. Fraud usually requires a step beyond mere deception to an intent to profit directly from the lie.

  • Josh||

    Stupid tags

  • ||

  • ||

    I'll go with Marcvs over Occam on the assault question.

    You realize that Marcvs too said that this doesn't qualify as assault, right? Or is another case of you claiming the facts agree with you after it's made clear they don't.

  • ||

    Also, libertarians should be just as reticent of dumping a matter into the purview of the civil court system as they are reluctant to have it fall under criminal law.

    The fact that men with guns are coming to my door as a result of a civil court decision rather than that of a criminal court is not much comfort.

  • ||

    The fact that men with guns are coming to my door as a result of a civil court decision rather than that of a criminal court is not much comfort.

    Someone has to enforce the law. Even in anarcho-capitalistic-utopialand you have to deal with people that don't abide by the decision of the judge/arbitrator/etc.

  • ||

    Part of the problem is that they can only charge her for violating the terms of service rather than the crime they actually committed.

    Well, Ska, that's the rub. Everyone agrees that what Lori Drew did was absolutely shitty, but nobody seems to have found any criminal laws prohibiting what she did. In a society of laws, you can't convict someone just because everyone thinks that person did wrong, you need to find a specific violation of the law, and convince a jury that the law was violated. This is surely one of the limitations of a society of laws, but the core libertarian ethos is that it's better to work with the limitations of this system, than to slide down the slope to tyranny.

  • ||

    Marcvs,

    Perhaps I should have been more clear. I think libertarians should be reluctant to do this, not unalterably opposed in all circumstances.

    Sometimes I get the feeling that libs turn a blind eye to the coercive nature of the civil court system.

  • ||

    agreed.

  • ||

    Guy, no idea if EFF's statement is grounded in case law or not. Seems doubtful that such an assertion could be broadly interpreted however. If posters have a guarantee of anonymity, they could cause lots of direct harm.

  • Xanthippas||

    So instead of wasting time, money, and energy on attempts at dragging such spats into the court system, why not encourage vigilantism?

    Drew was already subject to a considerable amount of vigilantism, directed at her and her family, and which could be argued was all out of proportion to her "crime" (though your view may vary depending on how heinous you think her acts were.) Responding to cyber-bullying with cyber-vigilantism, in which self-righteous or bullying assholes with no restraint and too much access to the internet, post any and everything they can find about the subject online, send threatening emails and make threatening phone calls, is a foolish response. Better to make punishment for such acts legally sanctioned and enforceable (though the latter is trickier than the former.)

  • an hero||

    Megan Meier=An Hero

  • Neu Mejican||

    Occam,

    You realize that Marcvs too said that this doesn't qualify as assault, right?

    Yes.

    Or is another case of you claiming the facts agree with you after it's made clear they don't.

    No, I think this is another case of you missing the important distinction between someone else's point and your point.

    FWIW (not much in a discussion with a toothbrush), I did not assert any facts...I asked a serious of questions.

  • Neu Mejican||

    I seem to be taking myself to series today.

    ;^)

  • Neu Mejican||

    Or not taking myself to series, perhaps.

  • ||

    Marcvs is definitely closer than Occam's Toothbrush in their definitions of 'assault', and I agree with Occam that this doesn't fit the legal definition of 'assault', which involves the invocation of a physical threat, not just insults and bad mouthing.

    I don't think this case is going anywhere, even if I do think that Drew should have a portion of her skin stripped off for being such an incredible asshole. I wonder what she was like in high school ...?

  • Ska||

    I'm guessing

    1) made fun of all the time
    2) couldn't give her pussy away

  • ||

    I have noted in other online discussions of this case that the following Missouri state statutes of general application might be relevant here:

    -- "Recklessly causing the death of another person" constitutes involuntary manslaughter under Missouri law.

    -- "Knowingly inflicting cruel and inhuman punishment upon a child less than seventeen years old" constitutes the crime of child abuse.

    -- "To engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person" constitutes harassment, and to harass someone intentionally constitutes stalking.

    I agree that charging Drew with some kind of computer crime based on a terms of service violation is (or should be) legally untenable. I don't think any of the charges listed above would be out of bounds, however.

  • Neu Mejican||

    Occam's toothbrush | August 6, 2008, 2:02pm | #
    Also, libertarians should be just as reticent of dumping a matter into the purview of the civil court system as they are reluctant to have it fall under criminal law.

    The fact that men with guns are coming to my door as a result of a civil court decision rather than that of a criminal court is not much comfort.


    Hmmmm....
    How does it compare to your neighbors coming to your door with a gun because they THINK they have a legitimate beef?

    Does the availability of due process to determine the validity of their claim that is afforded by the civil court provide you with any comfort?

    Does the opportunity afforded by the civil court to make your case that the claim is unjust provide you with any comfort?

    It sounds like you may just be uncomfortable with the consequences of being wrong... but maybe I am missing something in your argument.

  • Metal Messiah||

    I do find it a bit troubling how this case is taking shape as some kind of attack on "anonymous" internet postings and violations of TOS.

    As to whether what happened here was or wasn't criminal, I'd tentatively say that it probably should be criminal.

    You have an adult who set up a fraudulent Myspace account with the (apparently) sole purpose of harassing a specific minor that she actually knew. That's really creepy, and I certainly wouldn't want one of my neighbors doing it to one of my kids.

    I would think this would at least be covered by anti-stalking laws? But instead it seems like a wide net is being cast at internet anonymity in general. The internet was just a means of doing the actual deed.

    How would this be handled if there were no computers involved, and it was some kind of "pen pal" scheme?

    We should keep in mind that are a lot of good reasons to keep anonymity online. So employers can't read blog entries of their employees. So some nut can't look you up and show up at your door.

  • ||

    We should keep in mind that are a lot of good reasons to keep anonymity online. So employers can't read blog entries of their employees. So some nut can't look you up and show up at your door.

    A lot of good reasons to also allow ISPs to track down individuals given a search warrant. To run down individuals who email bomb threats, send computer viruses/worms, use false IDs to obtain info allowing them to track abused spouses with orders of protection, fraudulently obtain credit cards. . . . . . .

  • ||

    Criminal Assault
    Model Penal Code § 211.1
    (1) Simple Assault. A person is guilty of assault if he:
    (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
    (b) negligently causes bodily injury to another with a deadly weapon; or
    (c) attempts by physical menace to put another in fear of imminent serious bodily injury.

    Tortious Assault
    Restatement 2d Torts § 21. Assault
    (1) An actor is subject to liability to another for assault if
    (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
    (b) the other is thereby put in such imminent apprehension.

    Your state may vary. Hope that clears it up.

  • ||

    I never gave a definition of assault, I just said what is commonly called "verbal assault" is not really assault -- a proposition supported by Marcvs' and now downstater's definitions. So I'm not sure what's meant by those who say they prefer Marcvs' definition to mine.

    Neu Mejican,

    Your "series of questions" was premised on the belief that verbal assault was a form of assault. Nice try.

    Neu Mejican | August 6, 2008, 5:35pm | #

    The same could be said of the criminal justice system. It surely provides a more orderly means for dealing with issues than mob rule...yet as libertarians we oppose inserting every issue that someone in the community feels strongly about into the criminal justice system.

    Should the fact that some people like to beat up gays lead us to settle the question of homosexual behavior in the court system? After all, it would be more orderly for a judge to assign a punishment for sodomy than for a bunch of drunks to do it in the middle of the night.

  • Bingo||

    For the record, I would expand the definition of "internet harrassment" to include the flagrant forwarding of chain emails, patently false urban legends, vaguely theistic feel-good poetry, animated GIFs of kittens and fairies, and any of the other stuff that clogs the world's bandwith and slows the glorious flow of pirated music and porn.

    hear hear!

  • joby||

    isn't this just as much about property rights as it is about speech?

    ms. drew is not a criminal because she entered the MySpace network with consent. She developed the intent to misuse after gaining access without consent-- which is not and should not be illegal under the CFAA, just as it would not be trespass under the common law.

    The same cannot be said for the spam companies and their representatives who enter into ToS with no intent to honor them. That's consent obtained by fraud. Their subsequent entry, in the absence of genuine consent, falls within common law trespass.

    It would seem like that is precisely the kind of "fraud" Congress intended to prevent. That interpretation would also strike a nifty lil' balance between the often-competing considerations of property rights and free speech.

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