Is Being Mean Online a Federal Crime?

Remember Lori Drew, the Missouri woman accused of playing a cruel prank on Megan Meier, a 13-year-old girl who killed herself afterward? On MySpace, Drew allegedly pretended to be a boy who at first befriended Meier, a former friend of her daughter's, and then turned on her, saying "the world would be a better place" without her. After looking into the case, local and state law enforcement authorities could not find any criminal laws that Drew had broken. But last week Thomas P. O'Brien, the U.S. attorney for the Central District of California, brought four federal charges against her: one count of conspiracy and three counts of accessing a computer without authorization via interstate commerce to obtain information to inflict emotional distress. Each count carries a maximum penalty of five years in prison. "To my knowledge it is the first case of its kind in the nation," O'Brien said. "But when an adult violates terms on a MySpace account to gain information that creates this type of reaction, it caused this office to take a really hard look."

A little too hard, I'd say. O'Brien is by no means alone in wanting to hold Drew at least partly responsible for Meier's death, but the law does not allow him to do so. So instead he has resorted to legal contortions aimed at converting Drew's violation of MySpace rules into a federal crime. (The rationale for indicting Drew in California, by the way, is that MySpace is based in Beverly Hills.) There are plenty of reprehensible things people do that are not and should not be crimes. One of them is being mean to emotionally vulnerable people. Since individual reactions to insults are unpredictable and highly variable, a rule that criminalized speech when it leads to suicide or other forms of self-harm would chill any expression more negative than "Nice day, isn't it?" Because there is no such rule, O'Brien has twisted a law aimed at fraud, spying, vandalism, and child pornography into an excuse to punish a woman everyone hates. 

Back in 2003, George Washington University law professor Orin Kerr warned that broadly construed laws against unauthorized computer access could "criminalize contract law on the Internet, potentially making millions of Americans criminals for the way they write e-mail and surf the Web."