Civil Liberties

Lori Drew Verdict

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I was right about the verdict in the Lori Drew case, though I wish I had been wrong, since even misdemeanor convictions for unauthorized computer access raise the prospect that every American who uses the Internet is an accidental criminal. How many terms of service have you violated today?

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  1. I haven’t seen the terms of service on H&R. Should I read them?

  2. Like they say, hard cases make bad law.

  3. How many terms of service have you violated today?

    None.

  4. How many terms of service have you violated today?

    No clue, but I’m confident that no one committed suicide because of it.

    This is a tempest in a teapot. The gubmint is not going to start going after TOS violators – they went after this woman because she was a particularly mean-spirited bitch.

  5. Not often do I get to lament prosecutorial over-reach while at least getting some satisfaction that the right person got fucked over.

  6. I’ll be surprised if the convictions stand. TOS agreements having weight in criminal law is BS.

  7. First they came for the particularly mean-spirited bitches…

    I’m always surprised when many here rank vengeance so high. What, besides some people’s emotional satisfaction, is served? Is she a danger to others? Will lots of bullies be deterred? Is the cost worth it?

    I guess you figure it is.

  8. “The gubmint is not going to start going after TOS violators – they went after this woman because she was a particularly mean-spirited bitch.”

    The government isn’t going after doctors who prescribe pain pills – it will only prosecute major drug-dealers who deserve it.

  9. This should be appealed and thrown out.

    Not often do I get to lament prosecutorial over-reach while at least getting some satisfaction that the right person got fucked over.

    Right, because being an asshole deserves jail time and setting fucking ridiculous precedents.

  10. Also, how would you gain satisfaction / serve justice if she hadn’t used a computer, but a telephone, or forged a series of love-notes and left on the sidewalk in front of her house instead? Nailed her on an anti-littering ordinance? Silly example, serious question.

  11. left them on the sidewalk

    I’d make a lousy cyber-stalker.

  12. I don’t particularly like the WAY they went after this woman, but I’m glad they did.

    I would rather it have involved harassment laws or some kind of civil suit, but an adult who bullied and harassed a vulnerable kid needs to face some consquences, whether she used MySpace, postal letters, a phone or even said it in person.

  13. “The gubmint is not going to start going after TOS violators – they went after this woman because she was a particularly mean-spirited bitch.”

    Oh, and quit complaining about detention without trial and military tribunals. We know that the only people affected by those policies are evil terrorists who want to set off dirty bombs.

  14. Also, how would you gain satisfaction / serve justice if she hadn’t used a computer

    Don’t know, probably some equally arcane legal point that also would not become a broadly applied precedent.

  15. (should be bullies and harrasses, mixed m’ tenses)

  16. Max,

    Jumping to a couple hyperbolic extreme examples really isn’t moving your argument, particularly when they are both irrelevant. Neither abuse of one’s professional license nor detention without charge or trial occurred here.

  17. Add me to the side that is surprised so many people here think that this is OK. It is of no consequence to me how much of a nasty bitch this woman is. Justice was not served and that is bad news.

  18. How many terms of service have you violated today?

    Don’t know, don’t care. If anyone wants to kick me off their site, I’ll accept it.

    Oh wait, I might go to jail for a year?

    That’s what we should be worried about. This is akin to jailing people who are too loud in the theater where signs are clearly posted about keeping conversation hushed.

    This may sound callous but I’m getting a bit pissed at Megan Meier for offing herself. Couldn’t she have waited until she was 16 and do it over a real boy?

  19. Right, because being an asshole deserves jail time and setting fucking ridiculous precedents.

    No, I said I lament the over zealous prosecution for all the reasons that libertarians should care about.

    I just said there was a certain amount of schadenfreud associated with seeing this cunt get convicted.

    That being said, I hope it is overturned on appeal.

  20. The government isn’t going after doctors who prescribe pain pills – it will only prosecute major drug-dealers who deserve it.

    Mad Max shoots, he scores!

  21. Tbone, I had to scroll up to your earlier comment to decide that your 3:20 post wasn’t sarcastic.

    I guess Your Paranoia May Vary.

    Old Bull Lee, I wish your “I don’t particularly like the WAY” were a bit stronger.

  22. I think the convictions should be thrown out, but the common pos needs to have her ass kicked (not literally).

  23. J sub, see you and raise you: Megan died for your yet-unenumerated-and-would-otherwise-have-been-overlooked sins.

  24. This is a tempest in a teapot. The gubmint is not going to start going after TOS violators – they went after this woman because she was a particularly mean-spirited bitch.

    That only makes the decision to prosecute that much more unjust.

    If the government does not believe that the acts described in their own theory of the crime merit prosecution in every instance, they should not have brought these charges.

    One thing I hate to hear in defense of bad law – and I hear this shit from lawyers A LOT – is that bad precedents are held in check by prosecutorial discretion. What the flying fuck kind of argument is that? “Bad law is OK, because prosecutors won’t actually use it, don’t worry”? Blow me. It should be possible to design just laws that we can actually follow without contrivance.

  25. Add me to the side that is surprised so many people here think that this is OK. It is of no consequence to me how much of a nasty bitch this woman is.

    One of the problems with defending liberty is that you often find youraself on the same side of odious people. Being philsophically consistent must be difficult for many.

    There not going after Nabokov’s work, they’re going after two girls and a cup. There going after Aryan Nation’s hate speech, not Huckleberry Finn.

  26. There —> They’re.

    Ducking fyslexia.

  27. Being philsophically consistent must be difficult for many.

    Word.

    (Is that still said?)

  28. Fluffy shoots, and scores!

    Bad precedent is bad precedent. Also, under the rule of law, if it’s illegal because of the consequences of Drew’s actions, it’s always illegal. Acting like that’s not the case is akin to having the word “dunce” tattooed on your forehead.

  29. anarch – It’s stronger than it sounds, probably should have phrased it differently. That is what I’m pissed about: surely, in our litigious society, there are other legal ways to take this bitch down?

    Does anybody know if the Al Capone/tax evasion thing established any dangerous precedents that we’re suffering for now? I’m not being snarky, I’m hoping a more historically knowledgeable commenter can enlighten me. Granted, the 1920s was a different society than this one.

  30. It should be possible to design just laws that we can actually follow without contrivance.

    I would say that this is no more possible in the realm of law than it is in other complex areas (think economics). Why, theoretically, should we be ABLE to design just laws that we can actually follow without contrivance when be are theoretically UNABLE to design economic plans that will produce the desired outcome?

    The issues seem intertwined to me.

    Laws, rules, & regulations are an important part of the process of government, but I am not sure you can use them to eliminate the need for human judgment for how to deal with the individual case in front of you.

    Better and worse laws, certainly, but the elimination of “contrivance” seems impossible.

  31. I guess if you have to worry about whether your contemplated speech-act will cross a prosecutorial-discretion / judge’s-predilection / jury-antipathy line, you better keep your stupid mouth shut. Oh, I bet I should have phrased that more politely.

  32. What Neu Mejican said. The entire system has to rely on prosecutorial discretion lest we lock up all the jaywalkers.

    I didn’t say this was “good” case law, only that I’m not particularly exercised about Ms. Drew’s lost liberty in this instance.

    Your mileage may vary.

  33. Also, how would you gain satisfaction / serve justice if she hadn’t used a computer, but a telephone, or forged a series of love-notes and left on the sidewalk in front of her house instead?

    Good point. In addition to Drew being scapegoated, it seems that the new technology itself is being targeted as particularly threatening. Something bad happened? Blame teh evil, unregulated intertubez, of course!

  34. If the government does not believe that the acts described in their own theory of the crime merit prosecution in every instance, they should not have brought these charges.

    So does their “theory of the crime” include “acts” that included “harassment leading to harm” or some such thing. The outcome of the action can certainly be considered part of the particulars of a legal case…no?

    Is it illegal to push someone? Maybe, maybe not. Is it illegal to push someone down in a way that directly leads to injury? More likely. The particulars of the case are important.

    That said, I think they were stretching things here…but the idea that the logic should be applicable in exactly the same way in every case flies in the face of reality. The world just isn’t that easy.

  35. This is a tempest in a teapot. The gubmint is not going to start going after TOS violators – they went after this woman because she was a particularly mean-spirited bitch.

    No, they’re not going to go after all violators, just the ones they don’t like. You know, bad people who taunt teenagers into killing themselves, or who advocate drug legalization, or who promote online gambling, or who criticize important government officials…

  36. John-David | November 26, 2008, 3:42pm | #
    Fluffy shoots, and scores!

    Red flag, basket doesn’t count.

  37. No, they’re not going to go after all violators, just the ones they don’t like. You know, bad people who taunt teenagers into killing themselves, or who advocate drug legalization, or who promote online gambling, or who criticize important government officials…

    Or who post rabid, obscenity filled rants about incompetent, immoral law enforcemnt officials like I’ve been known to do.

    I gave Yahoo a fake name on each of my E-mail accounts.

  38. What Neu Mejican said. The entire system has to rely on prosecutorial discretion lest we lock up all the jaywalkers.

    I completely disagree.

    The fact that the system could not bear the arrest of all jaywalkers only proves that criminalizing jaywalking is not sound.

    As a matter of fact, I would argue that the fact that a given law or enforcement method could not survive universal application should be a warning claxon to us that the law is unsound or unjust.

    We could fix the jaywalking law by making it a crime to jaywalk only if you create a demonstrable hazard. Or we could eliminate the law entirely. It would tilt the balance in our public places away from automobile drivers a little, but so what? I don’t have a problem with that.

    No one has a problem with every murderer being arrested and prosecuted. Or every burglar. Or every mugger.

    The problem only arises when it’s a law that shouldn’t be there in the first place. “Oh noes, if we arrested every underage kid who drank a beer, the system would be overwhelmed! Oh noes, if we sent every pot smoker to jail, the system would be overwhelmed!” Good. Overwhelm the system. Maybe then people will wake up.

  39. As a matter of fact, I would argue that the fact that a given law or enforcement method could not survive universal application should be a warning claxon to us that the law is unsound or unjust.

    Absolutely. Also it’s an invitation to abuse. Police can make selective prosecutions of particular individuals for rarely-enforced crimes, and use it as a mechanism to harass elements of society or people that get on the wrong other person’s side. That’s exactly how corrupt cops in the South kept blacks in line for so long. (And still do, to an extent.) This is why racial profiling is so controversial; because it’s basically selective prosecution.

    When you have all these laws like this on the books, they can be used by anyone with poltiical connections to target someone they don’t like. Happens all the f—ing time.

    It’s one of the major libertarian arguments for having as few and as simple laws as possible. Precisely to avoid having selective prosecutions and other abuses of power.

  40. So does their “theory of the crime” include “acts” that included “harassment leading to harm” or some such thing. The outcome of the action can certainly be considered part of the particulars of a legal case…no?

    That’s not what she was convicted of.

    She was convicted of unlawfully accessing a computer.

    The theory of the crime was that by using a fake name and age, she had violated MySpace’s TOS and was therefore unlawfully accessing their server.

    They further argued that her harassment of the dead girl was also a TOS violation, but that was superfluous. Drew unlawfully accessed a computer the moment she used a fake name. Further TOS violations would be redundant.

  41. We could fix the jaywalking law by making it a crime to jaywalk only if you create a demonstrable hazard.

    You’ve just kicked the prosecutorial discretion can down the road.

    Laws that are universally applicable do not exist. Even homicide or burglary are justifiable in some circumstances.

  42. The theory of the crime was that by using a fake name and age, she had violated MySpace’s TOS and was therefore unlawfully accessing their server.

    So, are you saying she wasn’t?

    Further–
    Do you not think that the motive is an element that adhere’s to the criminality of a particular action.

    I kill you by accident, that’s one thing. I kill you on purpose, that is another. One is a crime, one is not.

  43. The theory of the crime was that by using a fake name and age, she had violated MySpace’s TOS and was therefore unlawfully accessing their server.

    Does this count as criminal deception (i.e., fraud)? Is that not one of the black & white rules that applies universally?

  44. If I am following the Fluffy/Hazel Meade position, they are arguing for “Zero Tolerance” policies across the board.

    Any law that can be applied universally regardless of circumstance is as zero tolerance policy.

    I am pretty sure that would lead to a more abusive system than one that allows discretion.

  45. Fluffy, no disagreement with anything you said except the first sentence. An overhaul of the nature you propose would be fine by me. But it’s not where we are at today and even if executed would not remove the need for prosecutorial discretion – every case has it’s particulars.

  46. I gave Yahoo a fake name on each of my E-mail accounts.

    Does it matter why?

    Is it okay up until you use their computers to conduct fraud, harassment, theft, or the like?

    I don’t think the parallels people are drawing are apt.

  47. just laws that we can actually follow without contrivance when be are theoretically UNABLE to design economic plans that will produce the desired outcome?

    Uhm, we can’t design an economic system that has the desired outcome. “Designed” economic systems always fail.

    But I’m sorry, I fail to see the connection between the two, no matter where my opinions may fall on economic intelligent design.

    We design laws. Some are bad. If we know a law is bad, letting the bad law remain as such because our nation of men won’t abuse them, pinkie promise, honest injun seems like a very bad idea.

  48. Even homicide or burglary are justifiable in some circumstances.

    Yeah, take O.J. Simpson, for instance…

    *ducks*

  49. Not often do I get to lament prosecutorial over-reach while at least getting some satisfaction that the right person got fucked over.

    Except that the right person(s) didn’t. The main reason that Megan was so unstable is that her parents were divorcing, and didn’t treat her particularly well.

  50. Does it matter why?

    Is it okay up until you use their computers to conduct fraud, harassment, theft, or the like?

    According to the law, why matters not. I use those fake names for all sorts of reasons that, while not illegal, hopefully piss off those in authority. I encourage others to do likewise.

  51. Does it matter why?

    Not the way the law was interpreted by this prosecutor. “Why” doesn’t matter at all.

    Does this count as criminal deception (i.e., fraud)? Is that not one of the black & white rules that applies universally?

    I think that you would have to show that MySpace suffered a harm. If I walk into a room and tell you my name is Barack Obama, I have deceived you but not harmed you. Since MySpace gives its pages away for free, it’s hard for me to see how they are the victims of a criminal fraud here. They should be able to cancel the woman’s account, and maybe pursue her civilly for the dollar value of the server time she consumed, but that’s about it.

    Laws that are universally applicable do not exist. Even homicide or burglary are justifiable in some circumstances.

    That’s not really what I’m arguing. There would be instances where charges would be brought in a homicide case where the defendant could prove justification. That’s true. But those cases would not fit the legal definition of a homicide under existing law.

    I’m saying that no one would have a problem with it if every single person who committed a homicide under existing law was brought to trial. People WOULD have a problem with it if every person who violated a website’s TOS was brought to trial under this interpretation of federal computer crimes law.

    I don’t accept the idea that it’s OK to define very large groups of persons as criminals [i.e. the set of people who have ever violated the terms of service of a website] and then count on prosecutors to only charge people who “really deserve it”. We should write the laws to define that smaller set of truly deserving people as criminals.

  52. Is it okay up until you use their computers to conduct fraud, harassment, theft, or the like?

    Because from a legal perspective, it is not fraud for me to take off my wedding ring, call myself Jack Johnson and go pick up women in bars. And it is not fraud from that same if I make a myspace page for a single man named Jack Johnson and use it to do the same thing, got it?

    It may be against the myspace terms of service, but the myspace terms of service are and endless, byzantine form designed to protect the company from lawsuits that has never had any kind of legal authority before. It’s kind of like making the tag on your mattress into a legally binding consumer contract.

  53. Any law that can be applied universally regardless of circumstance is as zero tolerance policy.

    I am pretty sure that would lead to a more abusive system than one that allows discretion.

    I think that if we went through the litany of zero tolerance disaster stories we would find that most of them boil down to:

    1. the wrong set of things being criminalized [which I have already referenced above]

    2. institutions which require private discretion to function properly being treated as public institutions, which creates a conflict that can’t be resolved fairly [all of the public school zero tolerance horror stories fall under this heading].

    The murder statutes are written in a way that takes cognizance of the necessary exceptions due to circumstances that you’re talking about. We can, in fact, apply those statutes with “zero tolerance”, and people who kill by accident, or people who kill justifiably or in self-defense or what have you, won’t be charged or convicted. We can’t do the same thing with federal computer crimes law, if this conviction stands.

  54. Tacos mmm… – “Except that the right person(s) didn’t.”

    Do you really mean that? We can argue the law all day, but I can’t believe somebody would take up for a fucking ADULT who spent so much time and effort bullying a teenager. I’m sure she didn’t intend for her to kill herself, but Lori Drew is a pathetic excuse for a human being any way you cut it.

  55. Uhm, we can’t design an economic system that has the desired outcome. “Designed” economic systems always fail.

    Designed legal systems are no less complex and always fail as well. The society then reacts to that failure by revising, reshaping, repealing, trying something different, etc…

    I think you are drawing a false distinction between the complexity of regulating human behavior in the realm of economics and in other realms of interactions.

    Fluffy,

    Sorry, no matter how many particulars you put into the rule, there will be cases where it strictly applies, but results in an injustice.

    Universally applicable laws will result in failures. And I doubt that they would result in less failures than laws which assume discretion/arbitration by actual humans thinking about the particular case.

    That includes discretion by the prosecutor on whether or not the case applies, discretion on the part of the judge to allow the case to go forward, discretion on the part of the jury as to whether they believe the case has been properly argued.

    Again, I agree this seems to be an oddly argued case, but I don’t see it as setting a precedent that all TOS violations are crimes. There is a context in which this case took place that may apply in the future to a similar case, but won’t apply to most TOS violations.

  56. If we know a law is bad, letting the bad law remain as such because our nation of men won’t abuse them, pinkie promise, honest injun seems like a very bad idea.

    I don’t disagree. The position I disagree with is one that holds that “bad laws” are the ones that can not be applied universally (the Fluffy/H.Meade positon).

  57. I am okay with judicial discretion, but “prosecutorial” discretion? Heck no. That puts way too much power at the disposal of an individual who is likely to be inclined to use it to campaign for higher office. Think of the number of politically motivated prosecutions that have occured. And you’re saying your fine and dandy with that, because some people “deserve it”? Heck, let’s bring back lynch mobs, why don’t we?

    What it means to be a nation of laws is that government officials follow the laws, they don’t make them up as they go along. You’re just going to trust the prosecutors not to abuse their power? This whole “prosecutorial discretion” line is a grotsque means of undermining the whole basis for the rule of law.

  58. Hazel,

    You are just kicking the abuse-of-discretion can down the road. What is the practical effect? A prosecutor who reviews the case believes that your act is not criminal, but HAS TO prosecute anyway? That’s a huge waste of resources, and certainly an injustice to the person being prosecuted needlessly.

    There is not perfect solution. People design flawed systems/processes that will, to some unavoidable extent, depend upon the judgment and discretion of those individuals that implement them. A system which allows several different individuals discretion is more robustly resistant to abuse than one that only allows discretion at one level. Disallowing prosecutorial discretion make abuse more likely, not less.

  59. “What it means to be a nation of laws is that government officials follow the laws, they don’t make them up as they go along. You’re just going to trust the prosecutors not to abuse their power? This whole “prosecutorial discretion” line is a grotsque means of undermining the whole basis for the rule of law.”

    A-fucking-men. Anyone too stupid to understand this should just go into their garage right now and get in their car and start it with the door down. I’ll post what to do next in about an hour. Just don’t leave the car until then.

  60. Neu Mejican:
    I’m not suggesting that we can have perfect laws all the time. But we should be working towards a set of laws that can be enforced uniformly. I’m all for revising and updating laws through a legislative process or even by common law evolution.

    But You’re saying that there’s nothing wrong with having laws on the books that are only prosecuted 1% of the time and leaving it up to presecutors to decide when to enforce them. You seem to be suggesting that there’s no point in even bothering trying to make the laws just, and that it would be more just to let prosecutors decide by arbitrary fiat who is “deserving” of prosecution. Why is totally screwed up. If you’re going to make that argument why bother having laws on the books at all. Why not just have the prosecutors arrest people for assholishness at their private discretion?

  61. Sorry, no matter how many particulars you put into the rule, there will be cases where it strictly applies, but results in an injustice.

    Universally applicable laws will result in failures. And I doubt that they would result in less failures than laws which assume discretion/arbitration by actual humans thinking about the particular case.

    If your position was correct, then we should only need the single law “Don’t do anything bad,” and we should be able to take care of everything on that basis with merely the application of discretion by prosecutors, judges and juries.

    And I’m sorry, but the fact that you believe you can come up with a tortured thought experiment where a person is technically guilty of murder [even with all the exceptions we already have built into the law] but deserves to walk free does not mean that it’s OK to prosecute small numbers of unpopular people under laws that, if interpreted literally, would result in millions of prosecutions.

    Even if we acted in typical Neu fashion and threw principle out the window and went with a “preponderance of cases” rule or something, it would seem very straightforward that a murder statute that is inadequate in one in a million cases is better than a federal computer crimes statute that is only applied in one in a million technical violations.

  62. Hazel,

    But we should be working towards a set of laws that can be enforced uniformly.

    Add a “for the most part” to that and we agree. Let’s replay the tape. I was reacting to this position.

    “…the fact that a given law or enforcement method could not survive universal application should be a warning claxon to us that the law is unsound or unjust. ”

    Which, if applied universally, would raise a claxon for us that ALL laws are unsound or unjust. The idea is that the law is unsound because it can not be UNIVERSALLY APPLIED. No law can be universally applied.

    Even if we acted in typical Neu fashion… it would seem very straightforward that a murder statute that is inadequate in one in a million cases is better than a federal computer crimes statute that is only applied in one in a million technical violations.

    It would be.

    If that was your argument, I would agree with you. Your argument, in typical Fluffy fashion, however, was that there is some ideal version of the law that could be universally applied eliminating the need for human judgment as a major playing in the judicial system. And that, if a law fell short of that ideal, it was unjust or unsound.

    This black and white thinking leads to ridiculous statements like ” If your position was correct, then we should only need the single law “Don’t do anything bad,”

    That is not the implication of what I am saying. I am saying that an imperfect system is improved by acknowledging the human element necessarily involved. Human judgments regarding the particular case are a positive feature of our system, not a bug in it.

  63. a major playing = major player

  64. does not mean that it’s OK to prosecute small numbers of unpopular people under laws that, if interpreted literally, would result in millions of prosecutions

    So you think this was about someone being “unpopular” ?

    Really?

  65. More on the inadequacy of laws.

    No matter how carefully you write your legal code, there will be someone that commits an act that everyone agrees is a crime, should be punished, created real harm, creates a situation that if not dealt with will increase future harm…some act that is in all the important senses of the word a crime, that will be perfectly legal under a strict reading of the existing statutes.

    BTW, to the extent that this case is an example, it has sparked many jurisdictions to re-write their code to cover similar situations in the future.

  66. Since MySpace gives its pages away for free, it’s hard for me to see how they are the victims of a criminal fraud here.

    The harm was to their reputation…she may have harmed their ability to secure advertisers and clients. It would be like me using the side or your store to post hate literature. It doesn’t cost you anything since you aren’t making a profit off the wall space.

  67. Fluffy,

    BTW,

    You usually avoid the ad hominem.

    I am a far more principled individual than your slanderous, slow-witted, myopic ass any day.

    ;^p

    [/friendly ribbing]

  68. No matter how carefully you write your legal code, there will be someone that commits an act that everyone agrees is a crime, should be punished, created real harm, creates a situation that if not dealt with will increase future harm…some act that is in all the important senses of the word a crime, that will be perfectly legal under a strict reading of the existing statutes.

    No, there won’t be.

    I will not agree that the act was a crime and needs to be punished, so that shoots down your “everyone” right off the bat.

    A law that has not been promulgated is not a law. I am absolutely entitled to engage in acts that have not been explicitly made illegal.

    Individuals are entitled to explicit and clear notice if their acts are going to be judged to be criminal.

    And I do not think that mere publication of the text of laws satisfies the promulgation requirement. One additional way in which having vague laws, or innovative and “creative” prosecutions that stretch the definition of existing laws, is injust in that it makes a mockery of promulgation. The text of the law in the Drew case can be read in such a way as to make Drew’s behavior technically illegal – but I think a defendant should be entitled to argue that the fact that millions of people violate TOS agreements every day, and up until this point no one has ever been prosecuted in this manner, means that the prosecutor’s unique interpretation of the law is unpromulgated and therefore cannot be applied. Laws that are never enforced in specific ways, or have never been enforced in specific ways, should be regarded as unpromulgated or having “lapsed” in promulgation.

  69. Neu Mejican: This case isn’t an example of a law where there’s a rare exception that shouldn’t be punished (which I would leave to the judge, personally).

    This is an example of a law where >99% of all cases go unprosecuted. If they were actually prosecuted, society would rather quickly get around to eliminating the law, precisely because people would instantly realize how unjust it was.

    In this case, you have a prosecutor charging someone not because the law “really” applies that one time in a thousand, but because the person involved had incurred the community’s wrath, and the prosecutor went out and found a law on the books to use as an excuse to charge her with something, anything. It’s cases like this that demonstrate why those laws *shouldn’t* be on the books. There will always be times when society will want an excuse to lynch (figuratively) someone, and the more unenforced laws like that there are, the more opportunity to do so there is.

    You think Lori Drew should be punished in some way. Fine. Then you should advocate for a law against verbal abuse or internet harassment, or something.

    But what you’re actually advocating is that prosecutors be allowed to abuse their discretion and commit one injustice in order to remedy the lack of laws appropriate to the crime. Or that you can commit some “lesser” injustices in order to serve a higher justice. Can’t make an omelet without breaking a few eggs. Etc.

  70. You usually avoid the ad hominem.

    Yeah, but this is a few times in a row that when faced with a principle you retreated into equivocation and claims of insuperable complexity, so I figured it was time to twist the knife a little.

  71. Fluffy,

    Well there ya go, proving that universal application always fails.

    But since you are the 1 out of a million who disagrees, we can ignore you…;^)

  72. A law that has not been promulgated is not a law. I am absolutely entitled to engage in acts that have not been explicitly made illegal.

    Individuals are entitled to explicit and clear notice if their acts are going to be judged to be criminal.

    Thanks. That’s another good argument.

    In effect, what’s going on is that the prosecutor is trying to charge someone ex post facto for a crime (if there was one) that didn’t exist at the time it was commited.

    Since ex post facto prosecutions are unconstitutional, he had to come up with an alternate law on the books that he could use against her.

  73. Yeah, but this is a few times in a row that when faced with a principle you retreated into equivocation and claims of insuperable complexity, so I figured it was time to twist the knife a little.

    Nah.
    You are holding onto a flawed position and couldn’t come up with a way out of it.

    I didn’t retreat before the principled argument, I pointed out that the principle you are holding onto is unworkable, invalid, and leads to flapdoodle and burning strawmen.

  74. Even though Al Capone should have been put away, I never understood why he got sent to Alcatraz along with serial murderers on account of tax evasion. Even when I was a kid, something seemed not quite right about that.

  75. Sorry, I was responding to this quote: “Does anybody know if the Al Capone/tax evasion thing established any dangerous precedents that we’re suffering for now?”

  76. From the wikipedia page:

    An ex post facto law (from the Latin for “after the fact”) or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted.

    Basically, what Neu Mejican is saying is that prosecutors should be allowed to use their discretion to ex post facto punish people for crimes by selectively using unenforced laws against them.

    Horrifying.

  77. I should say …
    “… to punish people for acts that are not legally crimes…”

    Also, I’d say 4 out of 5 conditions for calling something an ex post facto prosecution apply to this case. The rules of evidence were altered to admit the suicide. The case was changed from a civil to a criminal prosecution, which increased the possibily penalties. The fouth charge would have made it a felony and upped the prison term. And obviously, it criminalized an act that she had no reason to think was illegal at the time.

  78. A law that has not been promulgated is not a law. I am absolutely entitled to engage in acts that have not been explicitly made illegal.

    Individuals are entitled to explicit and clear notice if their acts are going to be judged to be criminal.

    On principle I would say that individuals are entitled to reasonable notice that their acts are going to be judged to be criminal.

    But, that notice (the law) will be imperfectly crafted. If made too explicit, the law will have less utility and will be less effective at serving justice.

  79. Basically, what Neu Mejican is saying is that prosecutors should be allowed to use their discretion to ex post facto punish people for crimes by selectively using unenforced laws against them.

    Horrifying.

    Not at all what I am saying.

    That is what you have inferred from what I wrote, but that is not what I am saying.

    Prosecutorial discretion does not = ex post facto law.

  80. And obviously, it criminalized an act that she had no reason to think was illegal at the time.

    Which act is that again? You seem to want to take her actions out of the context in which they occurred.

  81. Prosecutorial discretion does not = ex post facto law.

    In this case it does. She’s being punished for harassing the girl, which wasn’t a crime then (and probably still isn’t). The TOS violation is just an excuse.

  82. But, that notice (the law) will be imperfectly crafted.

    The laws in question were intended to stop data theft – hacking. Not to stop people saying nasty things to eachother over the internet.

    If made too explicit, the law will have less utility and will be less effective at serving justice.

    What you mean is that prosecutors will have less power at their disposal with which to prosecute those “deserving” of crimes (according to their discretion).

    Which is fine with me. The power of government officials needs to be limited. Checks and balances.

  83. Explicitness in crafting a law.

    It is illegal to use someone else’s computer without their permission in order to _________________________ (list of harmful acts).

    Someone uses someone else’s computer to harm someone, but the harmful act was left off the list.

    Better law, less specific.

    It is illegal to use someone else’s computer without their permission in order to harm another person.

    Discretion then gets to decide if this case involved one person using another person’s computer to harm a third person.

    If a prosecutor thinks yes, then the case can be brought…human judgment combines with the letter of the law to make a decision.

    Then a judge uses judicial discretion to either overturn or support the prosecutor’s judgment.

    Then a jury uses human judgment again to decide the case.

    The law is not universally applicable…it is a tool used by humans to govern their society.

    Better and worse laws exist, but attempt to over explicate or make universally applicable laws will not increase their effectiveness.

  84. Prosecutorial discretion does not = ex post facto law.

    In this case it does.

    No.

    This may be a case of ex post facto law (the debate), but that does not make prosecutorial discretion problematic. It is a case where one thing may have led to another. But your argument is that the existence of prosecutorial discretion is defacto a problem.

    This case, if wrong, does not generalize as widely as you seem to be arguing.

  85. I don’t know why they’re bothering to put her in prison, she’s just going to bust out and go after Spider-Man again.

  86. Neu,

    Prosecutorial discretion enables the prosecutor to refuse to try what are technical violations of law if he believes that justice is not served by doing so. It does not and should not enable him to prosecute someone who has not technically violated the law.

    This imbalance is rooted in the age old and near-universally accepted principle that the criminal law should err on the side of underinclusion, not overinclusion. So, you are correct that the law concedes that all laws are imperfectly crafted. However, you seem to reject this nearly universal principle that it is better to allow some ‘wrongdoers’ to avoid punishment at the price of criminalizing some ‘rightdoers’.

    Clear and consistent application of criminal law principles, which are underinclusive, provide citizens with a predictable map for when they can expect criminal sanctions. This may not always result in ‘justice’. But it’s clear that an unpredictable system which relies solely on the unguided discretion of individuals will destabilize citizens’ abilities to make free choices. This *cannot* ever result in ‘justice’ over any significant sized time period or set of cases.

  87. Above, “citizens abilities to make free choices” should have “without threat of criminal prosecution” at the end of it.

  88. “Prosecutorial discretion enables the prosecutor to refuse to try what are technical violations of law if he believes that justice is not served by doing so.”

    Bear in mind that, in the Founding era, many states followed the example of Virginia and included the following in their Constitutions:

    “That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised.”

    This was copied off of a clause in the English Bill of Rights which said that only Parliament could suspend the laws or their execution, not the King/executive (to be sure, this clause had anti-Catholic origins, because the King was trying to suspend the harsh anti-Catholic laws, but in modern America this is hardly relevant, since legislative bodies have no authority to pass such laws).

    What is the modern significance of this? Well, simply that the Ninth Amendment to the U.S. Constitution provides that:

    “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

    Thus, a widely-recognized right of the people at the time of the ratification of the federal Constitution was that only those who make the laws can suspend the laws. The executive authority is specifically denied any such right of suspending laws, unless the representatives of the people concur in it.

    Has Congress agreed to allow the suspension of the computer-hacking laws? Has Congress agreed to allow federal prosecutors, the servants not the masters of the people, to pick and choose which laws need to be enforced and who gets to be exempt from these laws?

    The Founding Fathers would say, “FUCK NO!!!” And I agree with them even if I don’t approve their language.

  89. I would rather it have involved harassment laws or some kind of civil suit, but an adult who bullied and harassed a vulnerable kid needs to face some consquences, whether she used MySpace, postal letters, a phone or even said it in person.

    She already faced consequences — everybody hates her. Her advertising-coupon book business went down the tubes, because everybody told her advertisers “We will not give you our business if you give money to this wretched woman.” I doubt she could get a job scrubbing toilets. She will likely (and deservedly) be ostracized from polite society for life. There were plenty of non-lynch-mob ways she was made to suffer already, without setting damaging legal precedents.

  90. Pendulum,

    I don’t disagree with the position/principle you map out at all. It seems different than the one that Fluffy was taking.

    In my comments above, the comments about over-under inclusion were aimed at how a law should be crafted, not how it should be applied. There seems to be an important difference.

    I am arguing that the process needs to recognize the human factor and value the discretion/judgment of the humans involved. The principle you articulate seems to agree.

    Mad Max,
    Not sure if I agree.
    It seems that at some point someone has to make the decision for each case and that is a duty of the executive, not the legislative. Checks and balances and all that notwithstanding, the implementation of the law involves decisions regarding when it does and does not apply.

  91. “The main reason that Megan was so unstable is that her parents were divorcing, and didn’t treat her particularly well.”

    But wait . . . Veronique de Rugy assures us in a recent Reason article that easy divorce is part of the modern Freedom Revolution: “As a woman, I can . . . file for divorce . . . without worrying about legal consequences (or being drummed out of polite society).”

    Now you’re saying that the divorce of this kids’ parents may have contributed to her suicide?

    If only someone had warned us that divorce might have a downside! How unexpected!

  92. But it’s clear that an unpredictable system which relies solely on the unguided discretion of individuals will destabilize citizens’ abilities to make free choices. This *cannot* ever result in ‘justice’ over any significant sized time period or set of cases.

    I agree. This is why I said above that citizen’s have the right to reasonable notice. Reasonable = predictable in my mind.

  93. NM,

    I agree that prosecutors can decline to prosecute if they think the evidence isn’t sufficient to convince an impartial factfinder, for example if the witnesses are unreliable or in conflict.

    Also, if the doctrine of necessity applies (exceeding the speed limit in order to get your expectant wife to the hospital in time for your baby’s birth, using marijuana when medically essential to keep a chronic pain patient in some semblance of comfort), then by definition there is no crime at all, and prosecutors have the right to make that decision for themselves. The criterion of necessity is that the legal violation is strictly necessary to avoid a greater evil, and I think we can agree that a chronic pain patient’s suffering is a greater evil than the supposed evils of leaving pot-smokers alone.

    If the law is unconstitutional, the defendant has an absolute right not to be prosecuted at all – this should not be a matter of prosecutoraial discretion.

    I would also argue that there is such a thing as a divine law and a natural law, emanating from God, which is superior to secular law. Under this interpretation, a secular law requiring theft would yield to the divine commandment not to steal. Of course, not everyone may agree to this. If you think that the law only emanates from human authorities, then this analysis does not apply.

    If, however, there are enough witnesses and documentary evidence to make the case clear, and the doctrine of necessity is inapplicable, and the law is constitutional and in conformity with divine and natural law, should prosecutors have the discretion not to file charges because it would be unjust to apply the law in a certain case? I would say no.

    The alternative is arbitrary government, and throwing the rule of law into the trash bin.

  94. I agree. This is why I said above that citizen’s have the right to reasonable notice. Reasonable = predictable in my mind.

    I like the example of statutory rape laws offered by another poster. Suppose a state’s statute of limitations is 14. Two men in their 30s have callous but consensual sex with a 14 year old girl. The vast majority of society considers their conduct morally wrong.

    Do they have reasonable notice sufficient to prosecute them? I say no; you seem to say yes, if I understand correctly, because they have reasonable notice that society condemns their action or considers their action evil.

    What if the girl, guilt ridden, kills herself? Was this foreseeable? Prosecute them for something?

  95. Neu :This may be a case of ex post facto law (the debate), but that does not make prosecutorial discretion problematic.

    But you are arguing that what the prosecutor did in this case is an acceptable use of prosecutorial discretion. Basically that you think prosecutorial discretion should allow someone to selectively prosecute someone for one thing in order to punish them for something else that wasn’t illegal.

    You’re basically saying that it should be legal for a prosecutor to deliberately end-run around the constitutional ban on ex post facto laws. That such things are within his discretion.

    Even if I can imagine an extreme case where I might support such a thing (say an extreme act of terrorism like 9/11), the Lori Drew case doesn’t even remotely qualify.

    We’re going to negate a centuries old principle on ex post facto prosecution because some pathetic woman made mean comments on MySpace? WTF? It’s a horrible precedent.

  96. But you are arguing that what the prosecutor did in this case is an acceptable use of prosecutorial discretion.

    You, perhaps, made this inference from my statement above “That said, I think they were stretching things here…”

    Or maybe from where I said: “Again, I agree this seems to be an oddly argued case…”

    What I did argue was that people concerned about the precedent this sets are assuming it has a parallel to behavior that would not apply due to differences in context.

    That is different than saying I think this was acceptable.

    Fluffy argued not that this case was an example of someone misapplying a necessary and appropriate part of the judicial system, but a symptom of a bug in the system that is inappropriate. You jumped on board and vigorously agreed that prosecutorial discretion is defacto a bad thing due to the POTENTIAL for abuse. From that point forward this was not a discussion of this particular case, but of the broader issues.

    Don’t confuse questions about the implications of people’s positions with my advocacy of any particular position in the debate. I try to be clear in stating my opinion.

    So again, I think they were stretching things here…and I agree this seems to be an oddly argued case.

    That doesn’t mean I think the implications of this decision are wide, or will result in a significant hampering of internet freedom.

  97. Pendulum,

    Re: your thought experiment.
    They had reasonable notice that their actions were, in fact, legal.

    What if the girl, guilt ridden, kills herself? Was this foreseeable? Prosecute them for something?

    Details matter. Did they specifically set out to harass her? Did they commit acts designed to cause emotional harm that could be reasonably construed to break some other law (clearly not the statutory rape laws, but some other law)?

    Without the details it is impossible to answer. The (stretched) logic of the prosecution is that Drew’s actions did indeed fit under the umbrella of misrepresentation in order to gain information (her stated purpose, btw).

    CFAA
    Intentionally accessing a computer without authorization to obtain:…Information from any protected computer if the conduct involves an interstate or foreign communication.”

    Seems like it says “to obtain information” and that Lori Drew’s defense of her actions is that she intentionally set up a fake account to obtain information. If MySpace’s computer’s are protected, then the stretch is not outside of a literal reading of the law.

    No?

    It seems to go beyond the spirit, however.

  98. “I like the example of statutory rape laws offered by another poster. Suppose a state’s statute of limitations is 14. Two men in their 30s have callous but consensual sex with a 14 year old girl. The vast majority of society considers their conduct morally wrong.”

    Well, I suppose that depends on whether the abortionist to whom the girl goes if she gets pregnant fulfills its statutory duty to report cases of child abuse to the police.

    Consider this video, in which a girl tells a Planned Parenthood staffer that she’s 15 and pregnant by her 23-year-old boyfriend, and the staffer tells the girl to “figure out a birthdate that works,” that is, fake the information on her intake form so that it looks that she’s at the age of consent.

  99. The alternative is arbitrary government, and throwing the rule of law into the trash bin.

    I disagree.

    Things are never all or nothing.
    There is an amorphous blob of behaviors that are against the law according to the law (divine or not). It has fuzzy boundaries that are not easily determined. The process appoints an arbiter that makes decisions about whether a particular behavior fits within that blob or not. Most cases are easy to decide. Some are not. The arbiter needs to have the power to make the decision in the tough cases.

    As I argued above. The potential for abuse is reduced if that arbiter’s decisions are subject to review by other arbiters. Limiting the number of people charged with making a reasoned judgment of the particular cased does not reduce the chance of abuse, it increases it.

  100. “The process appoints an arbiter that makes decisions about whether a particular behavior fits within that blob or not.”

    If that is that case, the arbiter should be the people themselves – in their capacity as grand jurors or as trial jurors. Appointing a government employee to the task of arbiter is above that person’s pay grade.

  101. Another exception, subject to certain limitations to be described: Plea bargains.

    The prosecutor is conscientiously convinced that the defendant committed crime X, but is willing to accept a plea of guilty to lesser crime Y, out of respect for the need of conserving scarce taxpayer money and not clogging the court system with all the other defendants who are awaiting trial – often staying in prison without bail while waiting.

    Plea-bargaining need not be the same as *purchasing* testimony – that is, the implicit agreement that if you testify against so-and-so who is targeted by the prosecutor you will get a more lenient sentence. This is indistinguishable from slipping a witness an envelope full of cash in exchange for testimony. If buying a witness with money is wrong, buying the witness with a promise of a few extra years of freedom is also wrong.

    Not to mention the concept of infamous crimes – someone who commited certain types of crimes used to be considered incapable of testifying against other people, because he was not a trustworthy person. American law no longer pays attention to this concept, allowing “jailhouse snitches” and testimony from people who have pled guilty to horrid crimes.

  102. Say, don’t Chris Hansen and company violate the TOS’s of those chat rooms by professing to be who they are not?

  103. Neu:
    Here’s what I think it comes down to:

    Fluffy and I (and others) are arguing that barely enforced laws shouldn’t be on the books, precisely to avoid prosecutors engaging in selective prosecution.
    You seem to be arguing that selective prosecutions are a useful tool within the prosecutors discretion, necessary to deal with crimes that technically aren’t covered by existing laws.

    I’d argue that attempting to use selective and creative prosecutions to go after acts that otherwise aren’t technically illegal is basically end-running the ban on ex post facto prosecution. They are making up, after the fact, an interpretation of a law that would never stand trial otherwise, to have an excuse to charge someone for an act that wasn’t illegal at the time.

    If you’re going to take the position that prosecutors should be allowed to use their discretion to prosecute acts that aren’t technically covered by existing laws, why bother with the selective prosecutions and creative interpretations? Why not just give prosecutors the discretion to make up a name for the crime and charge them with it? In other words, why not just legalize ex post facto prosecutions?

  104. If you’re going to take the position that prosecutors should be allowed to use their discretion to prosecute acts that aren’t technically covered by existing laws

    I am not taking that position.

    You seem to be arguing that selective prosecutions are a useful tool within the prosecutors discretion, necessary to deal with crimes that technically aren’t covered by existing laws.

    I am not taking that position.

    Fluffy and I (and others) are arguing that barely enforced laws shouldn’t be on the books, precisely to avoid prosecutors engaging in selective prosecution.

    I have no trouble with the basic idea. However, that is not the position Fluffy put forth that sparked my response.

    Again, to replay the tape:

    Fluffy: “the fact that a given law or enforcement method could not survive universal application should be a warning claxon to us that the law is unsound or unjust.”

    Hazel: “Absolutely. Also it’s an invitation to abuse.”

    The principle being expressed indicates a belief that you can take the human element out of the process and improve the results. The flaw is in the basic idea that a law is unjust or unsound BECAUSE it can not be universally applied. That rule, if universally applied, invalidates ALL laws.

    It doesn’t address the problem you seem to want to address.

  105. Hazel,

    To be explicit…

    Zero tolerance = universal application

    Fluffy has defended the idea that a properly written law will be just even if applied with a zero tolerance approach…that is just hogwash.

    You have defended his position every step of the way.

    There is a middle ground between zero tolerance (the position Fluffy staked out) and ex post facto/giving “prosecutors the discretion to make up a name for the crime and charge them with it.”

    That middle ground involves prosecutorial & judicial discretion, with checks and balances built a well defined process (“due process”).

    And a right to a trial by a jury of your peers.

  106. built on

  107. Fluffy has defended the idea that a properly written law will be just even if applied with a zero tolerance approach…that is just hogwash.

    My position is that we should strive to define laws that can survive universal application, and that the fact that a law would be disastrous if universally applied should warn us that there is something wrong with that law.

    Your counterargument – that human limitations and an infinite range of possible circumstances make achieving such a set of laws impossible – isn’t really as compelling as you think it is. In medicine [as an analogy], it may be that we will never achieve the ultimate goal of eliminating all disease and pain – but that does not mean that it’s pointless to continue to attempt to do so. We should strive to craft laws that are clear and explicit, and we should seek to make incremental progress towards that goal, even if we can never make our laws perfect. And your counterargument doesn’t really speak to my negative point at all: even before our laws are perfect, if we observe that a particular law would cause widespread injustice and chaos if universally applied, that remains a good indicator that something is wrong with that law. The fact that universal application of other laws [as currently written] would lead to isolated injustices as well does not improve the status of the laws that would lead to utter disaster.

    I also note that you consider law primarily a tool of social mediation. That makes an ad hoc process involving lots of “loci of discretion” look acceptable to you, as long as each individual discretionary power is balanced out by others. That’s not surprising, since that’s what conflict mediation models tend to look like. But social mediation is only one function of the law. The law also exists to define the relationship between the individual and the state. A well-crafted set of laws creates a framework within which individuals can exercise their liberty, because they can know that their actions are legal and will not lead to punishment. Every ambiguity in the law undermines this function. At every point at which the individual can’t be certain if their behavior is legal or not, without trying to anticipate the random discretion of magistrates, liberty is constrained and justice is undermined. This means that very human and reasonable-sounding models that apply very nicely to other types of conflict mediation don’t apply very well to this aspect of the law.

    I also think that a critical function of the law is the definition of the relationship between citizens. A law that millions of people can break without punishment, but which leads to punishment for ONE citizen based on the discretion of ONE prosecutor, cannot be just – or, at least, cannot be being applied justly – because this makes a mockery of the equal protection of the laws. I can join MySpace right now and say my name is Fluffy Greycat and I am 99 years old, and use that identity to become MySpace Friends with people, and the law will do nothing to me. To that extent I am being elevated to a position of legal privilege relative to Lori Drew, and that’s crap.

  108. Fluffy,

    Your counterargument – that human limitations and an infinite range of possible circumstances make achieving such a set of laws impossible – isn’t really as compelling as you think it is.

    I am not arguing that the problem with your position is that it is unachievable. I am arguing that it is not even a valid goal. It highlights one part of the judicial process, the written law, and places its universal applicability as the primary criteria for validity. But justice is served by a process that involves human agents acting reasonably with checks and balances built in to reduce the chances that those agents will act in bad faith.

    Every ambiguity in the law undermines this function. At every point at which the individual can’t be certain if their behavior is legal or not, without trying to anticipate the random discretion of magistrates, liberty is constrained and justice is undermined.

    One of the things the person knows is that the process involves human agents that will judge a particular case based on the context and the spirit of the law, rather than blindly applying an algorithm.

    A law that millions of people can break without punishment, but which leads to punishment for ONE citizen based on the discretion of ONE prosecutor, cannot be just – or, at least, cannot be being applied justly – because this makes a mockery of the equal protection of the laws. I can join MySpace right now and say my name is Fluffy Greycat and I am 99 years old, and use that identity to become MySpace Friends with people, and the law will do nothing to me. To that extent I am being elevated to a position of legal privilege relative to Lori Drew, and that’s crap.

    Your actions would not be reasonably construed as being equivalent to Lori Drew’s actions, so your analogy is inapt. Lori Drew was prosecuted in the context or a particular set of actions with a particular motivation that had particular consequences that was determined by a well defined process to be illegal. Your case wouldn’t survive the same scrutiny.

    I have already stated that I don’t see this as a particular success for the process, but that doesn’t make it a dangerous precedent setting case either.

    The bigger impact of the case is the creation of new laws that more clearly define internet harassment as a crime. These were created because communities recognized the challenges this case presented to the process.

  109. That was a good read guys. I don’t know why everyone else reads these blog comments, but I read them for these kinds of exchanges. Thanks.

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