Federal Judge Repudiates Thomas O'Brien's MySpace Hoax


Last month I noted that U.S. District Judge George Wu planned to throw out Lori Drew's misdemeanor conviction under the Computer Fraud and Abuse Act, stemming from her participation in a MySpace prank that seems to have precipitated the suicide of 13-year-old Megan Meier. On Friday he made it official, ruling that the legal interpretation U.S. Attorney Thomas O'Brien used to prosecute Drew, which makes intentionally violating a website's terms of service a federal crime, conflicts with the due process requirement of fair warning. Wu waited until after Drew's conviction to dismiss the case against her because she also was charged with a felony violation of the statute, unauthorized computer access in furtherance of a tort (in this case, intentional infliction of emotional distress). Wu concluded that the additional element of intent required by that count avoided the problems of vagueness and overbreadth raised by criminalizing terms-of-service violations in general. But since Drew was acquitted of the felony, all that remained was her failure to follow MySpace's rules.  

As with many other websites, Wu notes in his decision, "A person could become a MySpace member without ever reading or otherwise becoming aware of the privisions and conditions of the MySpace terms of service by merely clicking on the 'check box' and then the 'Sign Up' button without first accessing the 'Terms' section." Furthermore, "MySpace was allowed to unilaterally modify the terms of service, with such modifications taking effect upon the posting of a notice on its website. Thus, members would have to review the MSTOS [MySpace terms of service] each time they logged on to the website, to ensure that they were aware of any updates in order to avoid violating some new provision of the terms of service." They also would have to guess at the meaning of vague rules—proscribing "offensive" material or "misleading" information, for example—and try to figure out which violations might lead to prosecution.

"If any violation of any term of service is held to make the access unauthorized [and therefore illegal], that strategy probably would resolve this particular vagueness issue," Wu writes. At the same time, however, it would "render the statute incredibly overbroad and contravene the second prong of the void-for-vagueness doctrine," which requires "guidelines to govern law enforcement." Such a broad reading of the law "makes the website owner—in essence—the party who ultimately defines the criminal conduct."

Wu suggests several examples of Internet users who could be treated as criminals under O'Brien's reading of the law, including "the lonely-heart who submits intentionally inaccurate data about his or her age, height and/or physical appearance, which contravenes the MSTOS prohibition against providing 'information that you know is false or misleading'"; "the student who posts candid photographs of classmates without their permission, which breaches the MSTOS provision covering 'a photograph of another person that you have posted without thatperson's consent'"; and "the exasperated parent who sends out a group message to neighborhood friends entreating them to purchase his or her daughter's girl scout cookies, which transgresses the MSTOS rule against 'advertising to, or solicitation of, any Member  to buy or sell any products or services through the Services.'" Indeed, he notes, Megan Meier herself could have been prosecuted under this interpretation of the Computer Fraud and Abuse Act, since she broke MySpace's rules by signing up when she was younger than 14.

"If every such breach does qualify," Wu writes, "then there is absolutely no limitation or criteria as to which of the breaches should merit criminal prosecution." In short, he says, O'Brien's interpretation of the law transforms the prohibition of unauthorized computer access into "an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals."

George Washington University law professor Orin Kerr, who wrote a prescient article about the danger posed by this kind of prosecution back in 2003 and provided pro bono legal assistance to Drew, has more at The Volokh Conspiracy. I condemned the Drew prosecution here. Other Reason coverage of the case here