Civil Liberties

Lori Drew Update

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Before it adjourned yesterday, the jury in the Lori Drew case (the subject of my column today) indicated it had reached unanimous verdicts on three of the four charges against her but was having trouble agreeing on the fourth. Since three of the four charges (PDF) involve using MySpace "without authorization" to obtain information—i.e., visiting MySpace on three different days as part of the "Josh Evans" hoax that apparently drove 13-year-old Megan Meier to suicide—it seems likely those are the three charges on which the jurors have reached a verdict. The fourth charge is that Drew participated in a conspiracy with her 18-year-old employee, Ashley Grills, and her 13-year-old daughter, Sarah, "to access a computer without authorization" and "obtain information from that computer to further a tortious act, namely, intentional infliction of emotional distress." Presumably that's the count the jurors are having trouble with.

But it's hard to see how they could find Drew guilty of unauthorized computer access in furtherance of a tortious act without also concluding that she conspired with others. It's undisputed that Drew, at the very least, knew about the hoax, did nothing to stop it, and in fact occasionally posed as the fictitious 16-year-old Josh Evans herself. The prosecution argued that she encouraged the prank from the beginning and kept it going when the others wanted to stop. And if the jurors have concluded that Drew is not guilty of unauthorized access, why would they struggle with the conspiracy charge, which includes the same intent elements?

One possibility is that jurors have decided Drew is guilty of unauthorized access to obtain information but not "to further a tortious act." That would make those three counts misdemeanors instead of felonies, punishable by up to a year in jail instead of five. And if her goal in obtaining information was not to commit a tort, the conspiracy charge falls apart, at least as it's phrased in the indictment. As I argue in the column, it seems pretty clear that, insofar as Drew sought to obtain information via MySpace, it was not to inflict emotional distress on Megan but to protect Sarah from rumors Megan reportedly was spreading about her.

The jurors resume deliberations today, so we should find out pretty soon whether I'm completely off base. But if they find Drew guilty of unauthorized access at all, even if it's only the misdemeanor version, the threat of criminal liability for Internet users who violate unread terms of use remains. Orin Kerr, the law professor who is serving as a pro bono attorney for Drew, explained the stakes this way in an October interview with Wired News:

If the government succeeds in this case, they can pretty much bring charges against anybody who uses the Internet. And Congress never intended that. This is a case with really important civil liberties stakes for anyone who uses the internet.

For more on the threat posed by broadly interpreted laws against unauthorized computer access, see Kerr's prescient 2003 NYU Law Review article and the Electronic Frontier Foundation's amicus brief (PDF) in the Drew case.

NEXT: All My Rowdy Friends Are Filibustering Tonight

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  1. If the government succeeds in this case, they can pretty much bring charges against anybody who uses the Internet.

    But, an unstable teen killed herself! Ask half the “libertarians” around here, it’s OK if we trample on civil liberties as long as it satisfies our emotions.

  2. If the jury finds her not guilty I will be astonished. Pleased, but astonished.

  3. What Epi said.

  4. If there are criminal penalties for violating private companies’ Terms of Service, and the ToS are incomprehensible and too easily skipped, then aren’t the private companies liable? If not, I expect legislation to make them liable.

    Service providers should interpret Terms of Service in ways humans (as opposed to lawyers) can understand. If they get sued, they’ll have to start. And users will have to prove that they know the ToS before they set up an Internet account.

    Could you guys let me know how (a) I’m wrong about my analysis or (b) I’m right, but this is a bad thing?

  5. Could you guys let me know how (a) I’m wrong about my analysis or (b) I’m right, but this is a bad thing
    ____________________________________________

    The Answer is B.
    This is a civil matter. no one is responsible for the tracig suicide exept the person who commited it. If ToS lawsuits are now criminal instead of civil, you can chalk up another way to persecute an otherwise law abiding citizen. It is one more controll from the nanny state. Now don’t lie online now or we will ground you for 5-10 years. dont smoke or we will ground you dont eat foie gras nanny nanny nanny.

  6. The woman is a sicko. What kind of twisted adult (at least she’s supposedly an adult) exerts that much energy on tormenting a 13-year-old girl? It’s disgusting. And here she was encouraging her daughters to participate – what a great role model. At the very least she needs to get a life – and probably some counseling, too.

  7. Bill,

    There seems to be general agreement that she’s an asshole. Being an asshole is not in and of itself a crime, however (lucky for some of us), so the question is whether her assholiness actually transgressed this specific section of the federal criminal code. If it does, then how many Internet users are safe? Or do we rely on federal prosecutors to screen these cases so only the icky people (not *us*) get prosecuted?

  8. She’s a bitch and a hateful person, but not guilty.

  9. So if they come back “guilty” and as a result i kill myself in a fit of depression over the shit-stupid direction of things in this country, do all the jurors go to prison?

  10. “The Angry Optimist | November 26, 2008, 11:26am | #
    But, an unstable teen killed herself! Ask half the “libertarians” around here, it’s OK if we trample on civil liberties as long as it satisfies our emotions.”

    Next time if they use that argument (“Fuck the legal system, let’s get even!”) ask them if they support bringing back lynching and dueling. We have a legal system so our emotions DON’T take over and people don’t end up in endless blood feuds.

  11. David Ross,

    “If there are criminal penalties for violating private companies’ Terms of Service, and the ToS are incomprehensible and too easily skipped, then aren’t the private companies liable? If not, I expect legislation to make them liable.”

    The same could be said about home buyers not reading the fine print on their ARM loan contracts, etc. Should they not be liable, because it was a bunch of legalese barely understood? I know, I know, a big difference..in degrees.

    Though I agree that the TOS is easily skipped. And I don’t know how I feel about this case. Emotionally, hang her (she knew that the 13 y/o girl had emotional problems and if I remember correctly even was aware she was taken medication for it..so really, really screw the bitch), but I understand the ramifications of a conviction, the precedent.

    At the very least, all the fun is gone from the tubes…

  12. “Xeones | November 26, 2008, 12:22pm | #
    So if they come back “guilty” and as a result i kill myself in a fit of depression over the shit-stupid direction of things in this country, do all the jurors go to prison?”

    Thread winner.

  13. We have a legal system so our emotions DON’T take over and people don’t end up in endless blood feuds

    Dude, that’s what weregeld is for.

  14. No-one’s suggesting a lynch mob. That would be stupid. But what’s wrong with duelling? It’s two consenting adults with a defined set of rules, and no-one else gets hurt. And your average internet troll isn’t exactly Hamilton.

  15. David Ross / Episiarch 2012, the High Noon and Beowulf ticket

  16. I’m on board! Loki, here I come!

  17. “But what’s wrong with duelling? It’s two consenting adults with a defined set of rules,”

    It tends to lead to inter-generational blood feuds that are impossible to end, or at least it did.

  18. Now I have this funny image in my head of LoneWacko challenging Lefiti to a duel.


  19. Next time if they use that argument (“Fuck the legal system, let’s get even!”) ask them if they support bringing back lynching and dueling.

    YES

    I have commented repeatedly here in favor of both as an alternative to the State and it’s judicial system.

  20. It tends to lead to inter-generational blood feuds that are impossible to end, or at least it did.

    Ah, vendetta, the third leg of the tripod.

  21. “SIV | November 26, 2008, 12:48pm | #

    Next time if they use that argument (“Fuck the legal system, let’s get even!”) ask them if they support bringing back lynching and dueling.

    YES

    I have commented repeatedly here in favor of both as an alternative to the State and it’s judicial system.”

    Well, at least you’re consistent. Weirdly archaic and extreme, but intellectually honest and consistent. You’re the first pro-lynching, pro-dueling person I’ve ever encountered. Even on the internet.

  22. I could have sworn you had been around when I’ve defended them before BDB. Although if it was lynching I was probably using a “pseudonym” as so many people can’t get beyond the racial connotations and the idea that a lynching “victim” is always innocent of the crime.

  23. If they find her guilty I would be surprised if it survives an appeal. TOS agreements are not criminal issue. The proper penalty for a TOS violation is to shutdown the account.

    This is another area where one set of rules apply to us, and another to law enforcement. LEO’s posing as kids to catch child porn fans would be breaking the same laws a Drew.

    All animals are equal. But some are more equal than others.

    By 2084 George Orwell will look like a prophet.

  24. I for one see dueling as a lost right. If John challenges Joe to a duel & Joe accepts the challenge of his own free will. No one IMHO has a right to stop them.

  25. “By 2084 George Orwell will look like a prophet.”
    We need an Orwellian dystopia equivalent of Godwin’s law.

  26. I can see no moral reason for dueling to be illegal amongst consenting adults.

  27. Me: “No-one’s suggesting a lynch mob. That would be stupid.”

    I forgot that the mere stupidity of a sentiment is no impediment for someone to suggest it.

  28. In that vein, I move that SIV’s advocacy for extrajudicial punishment is dangerous and would lead to civil instability. Ergo, he is a prime candidate for extrajudicial punishment.

  29. The Internet should be used to teach T. and not to help make teenagers kill themselves.

  30. …the idea that a lynching “victim” is always innocent of the crime.

    Well, ‘the idea that a lynching “victim” is always innocent of the crime’ is pretty much due to the fact that, by definition, in our system, he or she is.

    But, heaven forbid, that we should deny the mob it’s morbid pleasure with so puny a scruple as a fair trial.

  31. “””We need an Orwellian dystopia equivalent of Godwin’s law.”””

    I would prefer to have less domestic spying and society that doesn’t give LEOs free passes on things that would get an every day joe locked up.

  32. There seems to be general agreement that she’s an asshole.

    I’m not so sure about that. There have been several folks on here who have called Drew’s actions nothing more than “teasing”. I’d like to challenge those fuckheads to a duel.

  33. No-one’s suggesting a lynch mob.

    You’re right. Liars call them juries.

  34. If she gets convicted there will probably be a mis-trial on the grounds the suicide shouldn’t have been admitted.

  35. this whole notion that there is not substantive difference between “trials by jury” and “mobs” is another reason more dogmatic libertarians are not to be taken seriously. If you’re that much of a simpleton, go back to the Middle Ages.

  36. SCANDALOUS. This Drew lady offense was premedited. It is first degree murder the weapon? The computer…Violated rules because she did not read the agreement??? What kind of excuse is that??? Ignorance of the law is not an excuse for violating it. The need a retrial and the HECK with CYBERBULYING this is a crime!!!You have the weapon and the perpetrators!!! SHAME ON THIS JUSTICE

  37. the idea that a lynching “victim” is always innocent of the crime.

    No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    Or what TAO said.

  38. Thank Heaven (or Congress) that being an asshole is not a federal crime.

  39. When will we start protecting our children from these monsters. Monster Drew should be forced to hang herself.

  40. It seems clear that Lori Drew used deception in order to deliberately harm another person. It seems to me that that is (or should be) a crime under common law. However, the fact that she violated the terms of an agreement that almost nobody reads should be irrelevant.

    But I don’t think jail time is an appropriate punishment for this crime. The most just punishment is the harm she has done to her own reputation.

  41. It seems to me shame that the only legal question here is about terms of agreement. MORALLY this woman is guilty of murder, as surely as if she tied the rope herself. Her intentions were clearly to harm a particularly vulnerable girl.

  42. I’ll just point out to “scott,” although I have little faith he’ll understand the point, that
    (terms of service for a privately provided service) != laws

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