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The MySpace Suicide Indictment -- And Why It Should Be Dismissed:
Today the U.S. Attorney's Office in Los Angeles indicted Lori Drew for her role in the suicide of a 13-year old girl using Myspace:
  A federal grand jury indicted a Missouri woman Thursday for her alleged role in perpetrating a hoax on the online social network MySpace against a 13-year-old neighbor who committed suicide.
  Megan Meier, 13, hanged herself in her bedroom after being targeted in a MySpace hoax.
  Lori Drew of suburban St. Louis is said to have helped create a false-identity MySpace account to contact Megan Meier, who thought she was chatting with a 16-year-old boy named Josh Evans. Josh didn't exist.
  Megan hanged herself at home in October 2006 after receiving cruel messages, including one stating the world would be better off without her.
  Salvador Hernandez, assistant agent in charge of the Los Angeles FBI office, called the case heart-rending.
  "The Internet is a world unto itself. People must know how far they can go before they must stop. They exploited a young girl's weaknesses," Hernandez said. "Whether the defendant could have foreseen the results, she's responsible for her actions."
  Drew was charged with one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl.
  This case involves a terrible tragedy. But the government's legal theory, based entirely on the Computer Fraud and Abuse Act, 18 U.S.C. 1030, is very weak. Legally speaking, the prosecution is a real stretch. In my view, the courts should dismiss the indictment. In this post, I'll explain why.

  To understand this case, you need to understand the government's theory. The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS).

  Here's the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn't comply with these terms, the theory goes, so she was criminally trespassing onto MySpace's computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).

  But these arguments are a real stretch for three reasons.

  Problem One: The first major hurdle is a legal question that I wrote an article on in 2003: Is it a federal crime to violate contractual limitations on use of a computer? The federal statute, 18 U.S.C. 1030, generally prohibits accessing a computer "without authorization" or "exceeding authorized access." But what makes an access "without authorization"? If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?

  In my article, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 NYU L. Rev. 1596 (2003), I argue that the answer should be "no." I won't recite the legal arguments here, as you can just read the article itself. (You can imagine the basic idea, though: Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon.) However, I will point out that the MySpace case is to my knowledge the very first federal indictment that has tried to claim that violations of Terms of Service for an Internet account amounts to a crime under Section 1030. In fact, I wrote my NYU article in part because I figured it was only a matter of time before a sympathetic case came along and some aggressive prosecutor would try the argument and see if it flew. It looks like this is the test case.

  Problem Two: The second and third legal hurdles to the prosecution are less intellectually interesting but clearer and easier for the defense to make. The first problem is that the crime requires the government to show that Drew intended to violate the Terms of Service. That is, lack of authorization must be intentional — it must have been Drew's conscious object to have violated the TOS. But here there is no evidence that Drew even read the TOS. Most people don't, of course; I would be surprised if 1 person in 100 actually tried reading it. If Drew wasn't aware that she was violating the TOS, she couldn't be exceeding her authorized access intentionally. (Paragraph 11 of the indictment lamely notes that a copy of the TOS was "readily available" to MySpace Users if they went looking for it, clicked the link, and read it. But the statute requires intent, so whether the TOS was "readily available" is irrelevant.)

  Problem Three: The third hurdle, and perhaps the easiest way for the defense to win, is that the government's theory requires proof that the goal of the conspiracy was to obtain information. The alleged underlying crime here is 18 U.S.C. 1030(a)(2)(C), which prohibits exceeding authorized access to a computer to get information. Think hacking in to get credit card numbers, to get a copy of a special computer file, or to take data from a database. But based on the facts discussed in the indictment and the news stories, it doesn't seem that Drew had the intent to obtain information from her victim. Her apparent goal was to harass her victim and to cause emotional distress, not to obtain information from her. That may not make it morally or ethically any less objectionable; indeed, perhaps it is more so. But the statute wasn't violated unless Drew was acting to try to obtain information, and it doesn't seem like that was her intent.

  UPDATE: Over at Concurring Opinions, Daniel Solove agrees with most of the analysis but comments on this last issue: "I'm not so sure I agree. The news accounts I read about the case indicated that one of Drew's primary motivations for creating the fake profile was to learn information from Megan Meier. She wanted to know information from Megan that pertained to her own daughter, who was a classmate of Megan's. The harassing came later on." I haven't read the news reports closely, so maybe we'll have to wait and see how the facts unfold on the third issue.
Guest101:
Actually my understanding from reading the news stories is that one of Drew's primary purposes was to obtain information-- specifically to find out what Megan was saying about Lori's daughter after they had some falling out. As for the second problem, doesn't MySpace require the user to read and agree to the TOS in order to set up an account? Wouldn't Drew's online statement that she had read the document be sufficient to infer that she was aware of its contents?
5.15.2008 7:16pm
Ex-Fed (mail) (www):
I was just writing about this. When I worked in that U.S. Attorney's office, people said that federal law was flexible enough to indict anyone for anything, if you looked hard enough for a theory. This indictment shows it's not far off the mark.

If the government prevails — if the court doesn't force them to prove that Drew knew of the ToS and intended to violate them — then there are an awful lot of criminals running around out there. How many web site terms of service have you ever read? How many times have you used an alias, or a false birth date to avoid identity fraud, or a false email to avoid spam? Do you know whether or not that violated the terms of service? I suspect not. And I suspect that tens of thousands, if not hundreds of thousands, of MySpace users have some amount of false information in their registration profiles.

It's important to note that the information Drew obtained through her ToS violation is apparently information available to anyone who registers at MySpace. As you suggest, it's a stunningly broad theory.
5.15.2008 7:19pm
Bill Poser (mail) (www):
I'm also curious as to why the US Attorney feels the need to use such a weak theory in order to go after Drew. Not only are there more plausible criminal approaches, but it seems that Megan's family have a good case in tort against her. Not to mention the fact that the matter has received a great deal of publicity and half the planet knows that Drew is pond scum.
5.15.2008 7:25pm
Ex-Fed (mail) (www):
Also, on a rather nit-picky level, I don't think the court can lawfully dismiss the indictment as you suggest. Since the case has been indicted, there's no preliminary hearing to test the adequacy of the evidence. Before trial the Federal Rules of Criminal Procedure only permit testing the facial adequacy of the indictment or matters that the court can determine "without a trial of the general issue." (FRCP 12(b)(2) and (3).)

Defense attorneys occasionally ask a court to dismiss the indictment on the theory that "the government won't be able to prove [element x]." But there's really no procedural hook for a federal trial court to do so before trial, and most judges (excepting those with a high esteem for their rights and privileges) won't do so.

If they can't cut a deal, the matter will probably come to a head in the discussions of jury instructions and possibly in limine motions -- if not, it will have to wait for a rule 29 motion after the government's case, or for the verdict.

I would not want to be the lawyer trying to persuade the jury to focus on the fine points of law that you are (probably correctly) arguing.
5.15.2008 7:39pm
OrinKerr:
Ex-Fed,

Nit picky is my middle name! I'll amend the post, although unfortunately I'm heading out won't get to it for a few hours.

Re a plea: If I had to guess, I would guess that they charged this using felony conspiracy counts in order to arrange a misdemeanor plea on a straight 1030(a)(2)(c). Dubious theory + aggressive charge = plea to misdemeanor so the dubious theory is never challenged.
5.15.2008 7:45pm
whit:
from a layman's perspective this seems like a classic example of prosecutorial jack mccoy'ism.

iow, somebody does something that we find morally reprehensible and a prosecutor finds some way to twist some vague ridiculous statute to try to turn it into a crime.

is this lawsuit material? sure.

but to prosecute somebody for essentially toying with somebody's emotions is despicable and kind of orwellian.

legislating meanness.

like i said, i don't know enough about (nor do i care) about the nuances of this (apparently incredibly overreaching) piece of federal legislation, to say whether the indictment should stand.

but it's just ridiculous from a layman's perspective.
5.15.2008 7:47pm
OrinKerr:
(Oh, and I should add, that may be why they charged it as an (a)(2) and not an (a)(4) -- there is no misdemeanor (a)(4).)
5.15.2008 7:47pm
spudbeach (mail):
Thanks for seeing the weak nature of this case. I'm further astonished at the location of the indictment. Why hijack somebody from Missouri to LA? Wasn't there a bit in the Declaration of Independence about King George forcing people to defend themselves far away from their residence? Regardless of issues of fairness and personal jurisdiction, basic fairness has got to enter the process somehow.
5.15.2008 7:55pm
CDU (mail) (www):
spudbeach wrote:
I'm further astonished at the location of the indictment. Why hijack somebody from Missouri to LA? Wasn't there a bit in the Declaration of Independence about King George forcing people to defend themselves far away from their residence? Regardless of issues of fairness and personal jurisdiction, basic fairness has got to enter the process somehow.


Well, the article says it's because MySpace (and their server farm) are located in LA. I don't know if it would be wise for the defendant to object though. Given the nasty nature of what she's accused of doing and the amount of publicity, it may be to her benefit to have this tried as far away from St. Louis as possible. Charging her in Californa may just save her laywers the effort of arguing for a change of venue.
5.15.2008 8:09pm
Ten Thirty:
Orin: The misdemeanor theory fits, but I don't think that it's the reason behind the lack of an (a)(4) charge. I would hope that the reason for not charging this as an (a)(4) is the government's inability to satisfy (a)(4)'s "of value" requirement. It'd be pretty hard to show that the fraud here resulted in Drew obtaining something more than just the "satisfaction of [her] curiosity." Your cynical instincts may be right, but I prefer to think that the USAO just couldn't square the facts here with (a)(4) and the judicial gloss on the "of value" language from Czubinski and In re AOL.
5.15.2008 8:16pm
CDU (mail) (www):
Regarding Problem 3, 18 U.S.C. 1030(a)(2) doesn't just say "information" it specifies three types of information.
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
(A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602 (n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
(B) information from any department or agency of the United States; or
(C) information from any protected computer if the conduct involved an interstate or foreign communication;


A and B obviously don't apply here, so the question would be if what the defendant did falls under C. I see two questions here. Did she obtain information from a "protected computer" and did it involve "interstate or foreign communication". Tricking someone into telling you something seems fairly distinct from computer hacking, but if you use a computer to deceive them about your identity it might be interpreted as obtaining the information from a protected computer.

The interstate or foreign commerce clause question is interesting. Both the defendant and the victim lived in Missouri, so you could argue that there was no interstate communication. However, the MySpace servers are located in California, so every piece of information flowing between the dependent and the victim had to flow across state lines. Does the fact that a communication is routed through another state make it interstate communication? Could I avoid a charge under 18 U.S.C. 1030(a)(2) if I make sure all my traffic stays in the same state when I'm hacking someone's computer?
5.15.2008 8:20pm
Lior:
CDU: I seem to recall a ruling (discussed on this blog) to the effect that since the internet is a global network, since every packet can be routed every which way, and since you can't keep track of where each packet went, every internet communication is automatically "interstate or foreign commerce". Probably Prof. Kerr knows the details.
5.15.2008 8:33pm
Lex:
Orin,

Problem 2 (intent) is a little unsatisfying. She can never intentionally exceed her authorized access unless she's actually read the Terms of Service? Surely that can't be right.

To use the service at all, don't you have to click that little box that certifies that you've read and agreed to the terms? That certification binds you to the terms in contract. Even if it's a fiction, it's a factual fiction not a legal one. Maybe you did read them and maybe you didn't; we don't know and we don't care that much. You've said you did, and (within reason) you've agreed to be treated as if you did read them.

Why couldn't that be enough? When you say it has to be her "conscious object" to violate the TOS, is that because there's some federal law that uses that phrase? Why isn't it enough that she meant to do X, "knew" (or estopped herself from denying that she knew) that X was a violation of the TOS, and did it anyway?
5.15.2008 8:47pm
Guest101:

Over at Concurring Opinions, Daniel Solove comments on this last issue: "I'm not so sure I agree. The news accounts I read about the case indicated that one of Drew's primary motivations for creating the fake profile was to learn information from Megan Meier. She wanted to know information from Megan that pertained to her own daughter, who was a classmate of Megan's. The harassing came later on." I haven't read the news reports closely, so maybe we'll have to wait and see how the facts unfold on the third issue.

Seems like someone pointed that out in the comments thread to this post, too... though based on CDU's quotation of the statutory text that kind of information-seeking might not be sufficient to violate the statute.
5.15.2008 8:49pm
1984 is back:
Why not use the PATRIOT (sic!) Act? Same broad quaflification. I am sure SCOTUS clowns will be more then happy to rubber stamp that version.
5.15.2008 8:55pm
boob:
Are your arguments the same if they'd gone after a wire fraud indictment?
Don't know what the exact requirements are for that, but would that be equally a stretch?
5.15.2008 8:56pm
George Weiss (mail) (www):
its likely that her computer or the internet used "wires" at some point to help transmit the material posted on myspace. wouldn't it be wire fraud even if there was no such computer fraud statute? hasn't federal law always been this way?

even somebody using a dsl or something transmits stuff to their isp who at some point internally in their network use some wired connections. Courts have confirmed that as long as it was reasonably foreseeable that a wire would be used you can still be cooked even if you didn't know about the "wire"

perhaps the gov would argue that by using the fake profile- D defrauded the victim from access to the "honest" service of myspace. No Terms of Service required here? right?


bill posner
and i agree with you about going after her criminally a different way. how about state crimes like harassment or forms of manslaughter/homicide? even if your not sure you can prov e it beyond a reasonable doubt-you could probably scare the D into accepting a plea to something smaller...but in the fed system there isn't a lot of "small stuff" to work with in this context. who gave this case to the feds?

As for the matter of tort-yes it would be a good tort case-but sometimes tort defendants are insolvent or unable to pay huge judgments.

ex-fed-since the defense would essentially be saying there is no probable cause even if you agree with the government's facts-because they have failed to allege the elements of the crime they site (because you thin the elements are different from what they think the elements are) isn't that a little different form a dismissal becuase the gov can't prove element X if we went to trial?
5.15.2008 9:17pm
George Weiss (mail) (www):
sorry boob beat me to it while i was busy typing...oh yeah and wire fraud can also be any radio signal-so theres no need to worry about finding actual wires used.
5.15.2008 9:20pm
CDU (mail) (www):
She can never intentionally exceed her authorized access unless she's actually read the Terms of Service? Surely that can't be right.


I think circumventing technical protection measures (cracking passwords, exploiting an OS vulnerability, etc.) shows intent regardless of whether they've read the terms of service or not. However, if the only thing they're doing is violating the ToS, then I think it's really hard to prove they had the intent to exceed their authorized access.
5.15.2008 9:29pm
Ex-Fed (mail) (www):
George,

1. It's not wire fraud (18 USC 1343) because fraud, within that context, means getting something of value from the victim through deception. Hence Borat is not guilty of wire fraud for setting up an encounter with a dupe.

2. I'm not sure which elements of 1030 you think they failed to allege in the indictment. From my review they hit the necessary statutory language. I think Prof. Kerr is talking about the level of scienter they have to prove at trial.
5.15.2008 9:31pm
whit:
ex-fed. bingo.

this case is no different than some guy (or girl) meeting some girl at a bar and making up an identity to get he/she into bed.

or any other personal deception that a person engages in. i can't believe people think this woman should be criminally prosecuted.

harassment? all the girl had to do was block the sender. please
5.15.2008 9:50pm
scosm:

To use the service at all, don't you have to click that little box that certifies that you've read and agreed to the terms? That certification binds you to the terms in contract.


I wouldn't think it would matter whether you are bound or not by the TOS. What Lori Drew likely did by clicking on that box is like signing a contract wearing a blindfold - she might still be bound, but she can't intentionally breach the contract without knowing what the terms are.
5.15.2008 10:20pm
George Weiss (mail) (www):
ex fed

1. Im not sure about this. section 1341 includes whithin the crime (among other things) a "scheme or artifice to defraud"

section 1346 defines this:

"For the purposes of this chapter, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services." 18 USC 1346.

it doesn't necessarily mean you have to benefit from the victim.

furthermore, as i understand it, we are in the ninth circuit, (for some reason the indictment was brought in CA) which has held that "getting something" out of your fraud is not necessary under wire fraud as long as something of value was taken from the victim. Calnay v. U.S. 1 F.2d 926 (9th Cir. (1924).

2. if 'unauthorized access" doesn't mean what the gov thinks it means (violation of the terms of use of myspace)-then they didn't allege unauthorized access becuase they didn't say how the access was unauthorized other than that it was a violation of the TOS. As you know, saying the guy did X isn't probable cause unless you give some somewhat clear specific details.
5.15.2008 10:25pm
CDU (mail) (www):
According to Dan Slater over at the Wall Street Journal Law Blog Orin is, "considering making an offer to represent Drew".
5.15.2008 10:36pm
Ex-Fed (mail) (www):
George:

1. I'm pretty sure that Calnay stands for the position that you don't have to profit for it to be fraud -- that is, that you don't have to be successful or complete the scheme. I don't think it stands for the proposition that a "scheme to defraud" can extend to a scheme that doesn't have something of value as its object.

2. They specifically alleged that it was unauthorized access, which is sufficient for the purposes of indictment. There's no particularity requirement.
5.15.2008 10:39pm
George Weiss (mail) (www):
2. Is what your saying that as long as there is an indictment-even if the conduct alledged in the indictment is legal-that the court may not dismiss it? Why not?-if the conduct being alledged is legal-then there is no PC of something illegal.

What i understand is that if a factual issue for trial presents itself, (the gov is saying it will be able to prove x and the D is saying it wont be able to)-that nobody knows what will be able to be proven at trial-and the federal rules say that once you have the indictment-you go to trial.

This defense is not factual. Its legal. The issue is what "unauthorized access" means. Even if you agree with all the facts of the state, if the statutory interpretation goes the way of the D, there is no evidence of unauthorized access, becuase the only evidence offered would be of something which is legal.

If the TOS violation is "unauthorized acesss" within the meaning of the statue (a matter of law not a matter of fact for the jury) then the indictment should stand as they have produced probable cuase that she violated the TOS.

If however, the TOS violation is not "unauthorized access" as a matter of law, then there is no factual basis that she did any unauthorized access becuase the only facts in the indictment concern the TOS. Even if the D agrees that she violated the TOS, the government has not alleged that the actions they say she took are illegal.

Sure, if the TOS violation was probable cuase that she had commited the crime in some other way-(which they are not ssaying)-then i would agree with you.

But the government's version of events goes: she violated the terms and thats the crime. If thats not a crime-then there is no PC of any crime.

2. Ok i see that-Calnay didn't succeed with his plan but wasted to gain. But still, what basis is there for requiring even intent of personal gain as the intent of the fraud? if you have a fraud which is only intended to screw you over and not to help me thats not fraud? its the same logic as calnay-it doesn't matte that Calnay only made 20 dollars his victims took a big hit. So too she didn't want to get anything of value for herself. But she did want to deprive the victim of something of value (honest use of services-i.e. myspace), and 1346 explicitly calls use of honest services something of value.
5.15.2008 11:34pm
George Weiss (mail) (www):
arrg- i didnt number right
5.15.2008 11:34pm
Joe Hiegel:

this case is no different than some guy (or girl) meeting some girl at a bar and making up an identity to get he/she into bed.

Of course, Massachusetts might soon undertake to criminalize that (or some similar) behavior.
5.15.2008 11:56pm
Ex-Fed (mail) (www):
George:

1. As to challenging the indictment, you'd have to get the court to read the language about the terms of service as limiting rather than as surplussage. The indictment plainly states that the defendant exceeded authorized access, which satisfies the pleading requirement. The indictment also suggests (without explicitly saying) that the unauthorized access was in the form of access through a false name. It's unclear under the law governing FRCP 12 whether you can use that explanation to limit the in-and-of-itself-sufficient allegation that she exceeded authorized access.

Assuming for the moment that you can, you'd have to establish that as a matter of law a ToS violation cannot constitute an unauthorized access under the statute, looking only at the four corners of the indictment. You can't rely on the argument that maybe in some cases it could be, but not here. I may be misreading prof. Kerr, but I don't understand him to be arguing quite that far.

2. "Theft of honest services", at least in the Ninth Circuit, is limited to public officials and fiduciaries, I think.

3. I think limiting the federal fraud statutes to situations where the object is something of value is a good thing and reasonable. It my seven-year-old sends an email to an acquaintance asking him to be his friend because he has cool Pokemon cards, and in fact his cards suck, but the other kid agrees to be his friend, I don't think that should be federal wire fraud. Similarly, in the example I alluded to earlier, if Sacha Cohen sends somebody an email posing as Borat and asks to get, say, a driving lesson, and his purpose is not to defraud the person of money (he pays him for the lesson) but to engage in buffoonish behavior with the person for the purpose of satire, I don't think it should be wire fraud. I'm in favor of narrow interpretation of federal criminal statutes and narrower use of federal police power.
5.15.2008 11:59pm
Hoosier:
Dude, you're missing the point. See the SSM threads below. If it SEEMS FAIR that the law should allow something, then that's what the law allows. Drew is screwed.
5.16.2008 12:08am
jsmith (mail):
In paragraph 14 of the indictment, the grand jury charges:
... defendant DREW and co-conspirators ... conspired and agreed ... to access a computer ... to further a tortious act, namely, intentional infliction of emotional distress ...


As far as I'm aware, civil liability for the alleged tortious act has not been proven in any court, by a preponderance of the evidence.

Is the grand jury legally competent to find that a tort has been committed?
5.16.2008 12:09am
whit:
"Of course, Massachusetts might soon undertake to criminalize that (or some similar) behavior."

joe. i was fearing somebody might come up with some sort of link where some liberalnannystate(tm) had tried to criminalize even "fraudulent dating".

thanks.

again, i have to agree with ex-fed. playing mind games with somebody should not be CRIMINAL FRAUD. example given was borat, but we can all think of a million examples of whether online or not, somebody messes with your head by pretending to be somebody else to irk you, befriend you, or whatever.

that's called, in the immortal words of foreigner: "head games". and it should be legal.
5.16.2008 12:24am
George Weiss (mail) (www):
oh right-fiduciaries and public officials might be the killer to my wire fruad theory. (btw i generally agree that criminal statutes should be construed liberally.)

-but then let me take your facts and throw them back at you in terms of challenging the indictment-

fed prosecutor X tells a grand jury that your 7 year old committed wire fraud. They show the grand jury evidence that your son used the internet to tell some kid to be his friend becuase he had good Pokemon cards. the grand jury thinks the prosecutor is crazy-but he reminds them their job is only to get probable cause of the crime-not to judge what should happen to him. they give a true bill saying that your son used a computer to commit fraud. nothing else...no surplusage.

The defense moves to challenge the indictment-saying that as a matter of law-the property/service lost in the fraud must be of objective or reasonable value (and lets say the judge agrees with this)-can he dismiss the indictment? Is all that has been alledged in the indictment is these facts-or do you say that becuase both sides agree what happened just not on the law-that the indictment can be dismissed?

What your really saying is that as long as the grand jury, has been convinced, under the prosecutor's interpretation of not just the facts but of the law, that there is probable cause-even if a judge believes the law is different and that there is no factual dispute and even under the facts contained in the indictment that no crime was committed-he cant dismiss. wow.

Im pretty sure that precise situation is what a rule which states:

"Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue."

Theres nothing in there about sufficiency of the indictment. the rule speaks to issues that aren't for trial (i.e legal issues-not proof of an element-but legal interpretation of what the element needed to be proven is)

i see there is also a way to challenge the sufficiency of the indictment-but that seems to be rule 12(3)-not 12(2)

Now as to what Orin was saying-it seems that Orin was saying , in his first point, "Problem One" above-is indeed that a simple terms of use violation-without something else-is not a crime. And there is nothing else-nothing else is alledged.
5.16.2008 12:30am
Bad (mail) (www):
Kerr is dead on. Unfortunately, this is one of those crimes that had to be committed before lawmakers could think to pass a law against it. And even so, I'm not sure if such laws make sense. The fact that the internet was involved is almost irrelevant: should it be a crime to make someone miserable, above and beyond what laws are already on the books that apply here? Should the fact that the victim commits suicide mean higher penalties? And based on what theory? I'm horrified by the situation, and I hope the people who did this face some sort of punishment to deter others, but even so I'm still not sure what the right answers to those questions are...
5.16.2008 12:38am
MottsBoy:
I question Kerr about Problem 2, the necessity to show intent to violate the TOS. My reading of the statute doesn't go that far, but perhaps there is case law out there I am not aware of that views this strictly (I'd think it enough to show the person knew they were violating the TOS at the time).

But one of the more interesting questions not addressed by Kerr and others here has to do with civil liability under 1030(g). Could the Meiers bring suit, claiming the conduct involved the factor "caused physical injury" under 1030(a)(5)(B)(iii)? Lowering the standard to "preponderance of evidence" might work well...
5.16.2008 1:13am
George Weiss (mail) (www):
MottsBoy:

they probably could get judgments on several common law torts as well-but perhaps the defendant is poor. suing poor people isn't so useful.
5.16.2008 1:25am
MottsBoy:
George,

Sure, they could sue under common law. But this is a hook into federal court and that's what I'm after.

But generalize it: suppose someone uses his Hotmail account for some illegal purpose under state law (moving trade secrets is an obvious choice), in violation of the TOS. Does he open himself up to a civil suit under the CFAA? or 2701? Are we aware of any cases out there on this point?
5.16.2008 1:38am
Fub:
Orin Kerr wrote in the original article:
If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?
From facts stated by the indictment, PDF page 5, graf 13):
13. The MySpace TOS explained that only conduct consistent with the MySpace TOS was authorized and that MySpace retained the right to, among other things, investigate, take appropriate legal action, and terminate any member who violated the MySpace TOS.
The TOS states a remedy for TOS violations, to which the user agreed.

If the user has agreed to the TOS, and therefore has agreed to the service provider's remedy for TOS violations, where has any fraud occurred?

The fact that MySpace did not exercise the remedies to which it was entitled was not the fault of the user.

If I intentionally inflict emotional distress on whit by calling him a poopyhead, and Orin doesn't delete my comment or ban me, how have I defrauded Orin?

whit -- I hope you can handle it OK. It was just an example. Honest. ;^)
5.16.2008 4:49am
Tom Hanna (www):
We may all ignore TOS every day, but we all know they exist - especially on sites like MySpace which require registration and ask us to agree to them. Are you suggesting that willful ignorance of the TOS is a valid excuse? That seems awfully close to "Well, officer, I always look away whenever I see a speed limit sign, so I wasn't really speeding."
5.16.2008 4:59am
whit:
"Kerr is dead on. Unfortunately, this is one of those crimes that had to be committed before lawmakers could think to pass a law against it."

except you are begging the question by calling it a crime.

"one of those CRIMES that had to be committed". this isn't, or at least shouldn't BE a crime. it's absurd.

but the mccoy'ism prosecutor-mode kicks in with people. a girl is dead. SOMEBODY HAS TO PAY! if it's not metal songs (suicide solution), it's some lady that was mean to my precious little daughter. remember, govt. is never more justified than when it's done "for the children."

if i was on that jury, i'd be MR Jury Nullification in a heartbeat.

civil matter all the way.

oh, and fub. you may find this VERY hard to believe but
1) i have been called worse
2) you'd have to call me a lot worse to inflict emotional distress on me, like maybe calling me "like a lawyer" ... (cymbal crash)
5.16.2008 9:08am
jsmith (mail):
In paragraph 18 of the indictment, the grand jury charges:
... defendant DREW,... in O'Fallon, Missouri,... accessed ... the MySpace servers located ... within the Central District of California ... and ... obtained ... information ... to further tortious acts, namely, intentional infliction of emotional distress on M.T.M. ...


Even if the grand jury might find that a tort was probably committed, despite the absence of any final decree or judgement from a court of competent jurisdiction, can a court in the Central District of California, sitting in a criminal case brought by the United States, find that DREW committed a tort against M.T.M.?

Does the statute give the United States standing to bring this particular tort claim against DREW?

If the United States has standing, is the Central District of California the right place to try this tort claim?

Does the value of the common-law tort claim "exceed twenty dollars"?

What is the standard of proof for the plaintiff United States in this particular tort claim? Can they prove beyond a reasonable doubt that a tort was committed without bringing into evidence a final judgement or decree from a court of competent jurisdiction?

ISTM that I'm asking questions about due process.
5.16.2008 9:34am
rbj:
Tom Hanna and Lex are spot on. Can I willfully ignore a ToS or a sign in order to avoid the intent charge? No trespassing charge if I carefully ignore the "No Trespassing" sign?

Federalizing this incident is troublesome, if IIRC everything happened within the same state. While Drew's actions are abhorrent, is it really a federal case? No state criminal law violated?
5.16.2008 10:00am
Anderson (mail):
[Completely OT, in case Prof. Kerr is reading: Thanks so much for your post a while back on Anita O'Day, which led me to check her out. I just bought my 3d album by her, and have gotten a kick out of nearly every song she sings.]
5.16.2008 11:17am
Ubu Walker (mail):
This is a case that would seem ripe for prosecution under a claim for "personage". Perhaps under an enabling statute under British Common Law?

Personage is defined in Canada as "Anyone who fraudulently personates any person, living or dead, with intent to gain advantage for himself or another person, with intent to obtain any property or an interest in any property, or with intent to cause disadvantage to the person whom he personates or another person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction."
5.16.2008 11:30am
Dave N (mail):
Quick shout out to Eugene Volokh, who was quoted about this case on the Today Show.

Substantively, I agree the conduct was inexcusible. But just because something is bad doesn't make it illegal.

Second, I am deeply disturbed about this case from a federalism standpoint (as mentioned above). This is an incident that happened in a state (Missouri) between two people. Dragging the defendant to California (regardless of the visceral thrill of making her pay something, even if it is just plane fare), seems wrong.
5.16.2008 11:47am
billb:
Ubu: 1. "personate" seems like an odd verb. Isn't the usual word "impersonate"? Are they distinguishable?

2. Is a never-existent person "living or dead"? My understanding is that Drew is accused of making up an entirely fictitious persona on MySpace to interact with the deceased. I presume that the person implied in that persona never existed and therefore cannot be counted as "any person, living or dead."
5.16.2008 11:59am
DCP:
Legal gymnastics aside, I'm not so sure this woman is to be blamed in all this. In fact wasn't it a big fight with her mother that immediately preceded the hanging? I think this poor girl had serious mental issues and while the actions of this woman are horrid, it's a bit of a stretch to say that insulting remarks via the internet, which I'm sure 99% of teenagers are completely immune to these days, could be considered solely contributory to a suicide.

And if she is more responsible for this, it would have been wise to employ the "gotcha" tactic - swarm her with investigators and wait for the slip (obstruction, lying to investigators, etc.) I think I read that she destroyed evidence and instructed the other children involved to lie to anyone who asks.

Oh, and anybody want to bet this story turns into an episode of Law &Order?
5.16.2008 1:02pm
Fub:
whit wrote at 5.16.2008 8:08am:
if i was on that jury, i'd be MR Jury Nullification in a heartbeat.

civil matter all the way.
Spoken like a lawyer.

Badda-bing!

Actually, spoken with a 'tude I wish more lawyers had.

And I hope Megan Meir's estate successfully sues Drew and her scummy pals back to the stone age.

But trying to figure who has less ordinary human moral decency in this case -- Drew, or the US Attorneys who brought the indictment -- is like weighing excrement.

If this indictment stands, every ordinary citizen loses, not just Drew.
5.16.2008 1:31pm
Bruce:
If you violate the Terms of Service, are you committing a crime? In my article, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 NYU L. Rev. 1596 (2003), I argue that the answer should be "no."

In civil-land under the Stored Communications Act, the 11th Circuit has agreed with you.
5.16.2008 1:50pm
R. Friedman (mail):
The 9th Circuit heard arguments this month in a case brought by Ticketmaster against a company that makes software to help ticket brokers buy lots of tickets to Ticketmaster (and other vendors') events. Ticketmaster charged the company with violating Ticketmaster's copyright on its site for using it in violation of the Terms of Service, which specified no bots.

This is just as ridiculous as shrink-wrap copyrights -- simply be navigating to the site you are subject to the terms of service. They open themselves up to the cyberworld, then say they can limit it -- if they want to limit it, they can have you sign up for membership.

If they win, I intend to set up a site for use only by people with stunning bodies and webcams. Anyone else will get sued.
5.16.2008 4:13pm
whit:
"If they win, I intend to set up a site for use only by people with stunning bodies and webcams. Anyone else will get sued."

SUBSCRIBE!!!
5.16.2008 7:58pm
whit:
"Legal gymnastics aside, I'm not so sure this woman is to be blamed in all this"

"not so sure?"

how about "it's frigging RIDICULOUS" to charge somebody in relation to somebody's suicide because they said some mean WORDS to them.

does anybody have a sense of perspective here? is this a libertarian blog where people are (lord forbid) responsible for their own actions?

cmon. all legal minutiae aside, if you are so frigging unsatable that somebody saying something(s) mean to you results in your suicide - that's just too frigging bad for you.

suicide is sad. i've seen it myself (guy blowing himself away wiht a gun to the head not 5 feet from where i was standing) but people have to be responsible for their own actions. this is sad as hell, but to even consider that this woman should be CRIMINALLY liable for saying some mean words is simply astounding.

sorry for the rant. but geeze
5.16.2008 8:04pm
Gideon's Trumpet:
Upon further reflection, I think it is plausible that she violated the TOS. After all, how oblivious do you have to be to not know that setting up a fake profile as an individual of the opposite gender and half your age is not permitted?

Having said that, if that is indeed the case, then how ridiculous would a defense of selective prosecution be? As already noted by scores of people - almost no one reads the TOS and almost everyone has violated some ToS somewhere. The result in this case seems to drive the prosecution more than anything else and she is being singled out because her violations caused the death of someone else (I use "caused" loosely).

Or perhaps I'm just imagining things.
5.16.2008 8:11pm
Fub:
whit wrote at 5.16.2008 7:04pm:
this is sad as hell, but to even consider that this woman should be CRIMINALLY liable for saying some mean words is simply astounding.

sorry for the rant. but geeze
Generally agreed on result, but from different reasoning. I think there is a good tort case for intentional infliction of emotional distress in this case. I could even believe a civil wrongful death action on some theory based on intentional infliction and foreseeable consequences of the acts. Some torts lawyers here could probably say why that latter is or isn't legally possible.

I'm not entirely opposed to statutory criminal sanctions for similar acts of deception, harassment and intentional infliction, especially of minors -- if the required acts rise to some level of aggravation greater than the existing tort. I think the acts in this case do. But those statutes don't exist.

Bootstrapping a criminal violation by stretching and contorting statutes, as in this case, is certainly dangerous policy for prosecutors and courts, and I think also repugnant to any sense of common human decency. Citizens should at least be actually on notice in advance about what is, and what isn't, a crime. That is my major beef with this indictment.
5.16.2008 9:04pm
whit:
"Bootstrapping a criminal violation by stretching and contorting statutes, as in this case, is certainly dangerous policy for prosecutors and courts, and I think also repugnant to any sense of common human decency. Citizens should at least be actually on notice in advance about what is, and what isn't, a crime. That is my major beef with this indictment."

i totally agree with your intelligent (which is obvious since i agree with it) post :)

my catch-all term for this kind of stuff is "jack mccoy'ism". as much as i love law and order, his sanctimoniousness combined with his desire to twist the law to try to find some way to hold people accountable for being mean often left me rooting for the defendant, even when i knew he "did it" because what he did simply should not have been charged.

i do agree that, and i admit to being exceptionally ignorant as to civil law/torts etc., there could very well be some good civil suit here. mostly because the kid was 13, and i think that is a big part of it. people are supposed to understand that such juveniles are more impressionable and less mature and less responsible for their actions in some respects than adults.
5.16.2008 10:00pm
OrinKerr:
[Anderson, in case you're reading -- you're very welcome!!!]
5.16.2008 10:16pm
Fub:
whit wrote at 5.16.2008 9:00pm:
i totally agree with your intelligent (which is obvious since i agree with it) post :)
Cool. I'll nominate you for membership in The Illuminati at the next meeting.
my catch-all term for this kind of stuff is "jack mccoy'ism". as much as i love law and order, his sanctimoniousness combined with his desire to twist the law to try to find some way to hold people accountable for being mean often left me rooting for the defendant, even when i knew he "did it" because what he did simply should not have been charged.
I think that's a great term for what's going on with this indictment. That, and some variation on the old grand jury and ham sandwich routine.
5.16.2008 10:52pm
reiisi (mail):
Let's see. If the girl were a cheerleader and the neighbor mom had somehow physically impersonated a sixteen year old boy over the several months this occurred, getting the girl's confidence, getting the information, and then turning on the girl, in the context of the competition between the two girls, would there not be applicable laws?

Harassment?

There is a sexual element here, as well as an element of fraud.

Where do things change just because electronic media is involved? This is a case of extended harassment, where the harassment continued long enough to become a form of assault.

I blame the judges who decades ago failed to establish that electronic media is just like paper, only more copiable and more editable, and insisted that new laws were required for this kind of mess.
5.17.2008 6:57am
ChrisK (mail):
This law is scary
After looking at other cases charged under this statue, any computer connected to the internet is covered by the statue. The owner of the computer decides who or how that computer can be access and if you access it in volition of ToS you can be charged.
Watch out everybody on Myspace with fake negative G W. Bush sites. News Corp (FOX) can have you prosecuted under this law. There are ~500 Jesus's, Satan's, Devils, and numerous Santa clauses and easter bunnies on myspace. They are all felons
5.17.2008 11:39am
Dean Steward (mail):
I'm Lori Drew's lawyer. These comments are both interesting and helpful. Thanks to you all.
5.17.2008 12:09pm
RenegadeX (mail):
Alright, chew on this:

The MySpace TOS does not state specifically where their computer servers are physically located, so in the absence of clear notice, how is the average MySpace user to know that the servers are in Santa Monica, California? (and thus possibly committing inter-state communications fraud, as defined in 1030)

The MySpace TOS simply says: "MySpace can be contacted at 8391 Beverly Boulevard, #349, Los Angeles, California, 90048", it doesn't say ANYWHERE that's where the servers are located. Further down the TOS Agreement, it in fact says "You and MySpace agree to submit to the exclusive jurisdiction of the courts located within the State of New York to resolve any dispute arising out of the Agreement or the MySpace Services".. further confusing things.

The vast majority of MySpace users have no cause to ever do a reverse-IP lookup on MySpace.com, and therefore, without fair notice of where the servers are located, one should not be culpable for any crime that hinges on the fact that data crossed state borders.


Or am I wrong?
5.17.2008 1:54pm
RenegadeX (mail):
Oh yeah, I forgot to mention a few things:

1) Kerr's 'Problem One' is moot as soon as you actually read the MySpace TOS - it specifically states that you are only authorized to use MySpace is you abide by the terms listed. How you missed that, I don't know.

2) Kerr's 'Problem Two' as others have said is pretty ridiculous (you teach law, Kerr? ouch!) If you click "I agree to these terms", then you are acknowledging that you have read them, or are in effect agreeing to abide by them and accept whatever consequences arise from your own ignorance of them. An analogy: most people don't read the entire statute listing their state's Highway Code, yet having been granted a driving licence, they have to abide by the laws prescribed within it when they drive. ("I'm sorry officer, I didn't know" doesn't cut it there so why should it online?)

3) Kerr's 'Problem Three' is moot as the law is about obtaining "information" from an UNauthorized computer and the unauthorized computer in question is the MySpace server, and the "information" is the typed communication that passed through it between Megan's computer and Drew's(/and her co-conspirators). Without question, the objective of creating the Josh Evans persona was to facilitate communication with Megan, communication that they would not have been able to partake-in had they used an 'authorized' account using real names. (Remember, Drew's daughter had had a falling-out with Megan).

What is NOT substantiated in the indictment is the allegation that the fictitious Josh Evans account was created with INTENT to "inflict emotional distress". I believe this is key if the DA is seeking the maximum penalty afforded by the law.

4) The best part of the whole situation: if Drew is found guilty of "unauthorized" access of MySpace's servers, then Megan Meiers &her mother should also be charged (ok, just her mother, Megan's dead!) -- MySpace TOS clearly states that users must be age 14 or older, and no account will be issued if the birthdate provided does not calculate to that age, meaning that a fictitious age had in actuality been submitted. So Megan's mother had conspired to provide false information to MySpace, and in doing so not only violated their TOS, but violated 1030-a(2), 371(conspiracy), and I suppose even 2(aiding &abetting).
5.17.2008 2:42pm
JeffV:
Is there no duty of care under US law? She knew she was dealing with a minor.

Whether or not the act was committed with a computer seems to me to have little bearing. But maybe I'm wrong: if it had been done with letters, texts or phone calls instead of a computer, then would there have been no crime?
5.17.2008 4:17pm
Mary Katherine Day-Petrano (mail):
"from a layman's perspective this seems like a classic example of prosecutorial jack mccoy'ism.

iow, somebody does something that we find morally reprehensible and a prosecutor finds some way to twist some vague ridiculous statute to try to turn it into a crime.

is this lawsuit material? sure.

but to prosecute somebody for essentially toying with somebody's emotions is despicable and kind of orwellian.

legislating meanness.

like i said, i don't know enough about (nor do i care) about the nuances of this (apparently incredibly overreaching) piece of federal legislation, to say whether the indictment should stand.

but it's just ridiculous from a layman's perspective." ---->

You must be one of those people who is freaking out that YOU might be indicted for the "Carrie" mother-burns-up attack on me, together with the entire "AnnTM" and "Towanda" and "Barry" attack on myself, a disabled autistic, and my equine disability service horse that has led to his irreversible catastrophine founder "sinker" injury induced by aflatoxin contaminated horse feed.

Those who attack others by exploiting information gathering, defamatory statements about the person's disability, no different than what was done to that poor 13 year old, really SHOULD be indicted under this type of theory.

You just don't like the fact what you consider "toying" with someone is thought by others as an indictable crime, and to the charges should be added: hate crime predicated on an aversion to autism.
5.17.2008 4:54pm
Mary Katherine Day-Petrano (mail):
corr: "catastrophine founder 'sinker' injury" = catastrophic founder "sinker" injury
5.17.2008 4:56pm
Mary Katherine Day-Petrano (mail):
"this case is no different than some guy (or girl) meeting some girl at a bar and making up an identity to get he/she into bed.


Of course, Massachusetts might soon undertake to criminalize that (or some similar) behavior."

JH, I think this misses the point: The case IS different than meeting some girl in a bar to get her into bed. A person trying to so such would not try to exploit the girl's mother's self-immolation suicide or participate in an attack on the girl's equine disability service horse prescribed as her medicine in order to get her into bed. When the objective of the conspiracy is really to cause the girl such pain and suffering to trigger her to commit suicide, it would seem THAT is just a little different scenario than 'meeting a girl in a bar to het her into bed.'

Moreover, regarding the 'why not just use the USA PATRIOT Act' suggestion, while I cannot say for the Myspace suicide, I do know that if the objective of a conspiracy to make unauthorized use of computers contrary to the TOS is for the objective of attacking a disabled person to cause an attack on her equine disability service hrose prescribed as medicine to trigger her to commit suicide, THAT is not authorized under the USA PATROT Act ... if you care to actually read the statute.

In sum, there is no legitimate law enforcement interest in such an attack.

Those who make such blog attacks on innocent disabled victims deserve to be prosecuted ... even if the attacker is a Federal Judge, a law clerk to a Federal Judge, or a chief at DOJ. Such attacks are civil rights and liberties violations, as well as , very likely, ultra vires.
5.17.2008 5:33pm
Mary Katherine Day-Petrano (mail):
And here is another query -- what effect does it have on this indictment and prosecution if the criminal Cyberstalking prohibitions of 47 U.S.C. Sec. 223 (refusing to disclose real true identity while attacking a victim under anonymous blog IDs) have been violated by the suspect or defendant?
5.17.2008 6:26pm
JamesB:
"equine disability service horse"

So I googled this phrase, and found only posts written by Yogi Bear aka Gulliver's Travels aka Mary Katherine Day-Petrano.

...what therapeutic powers does a horse have to offer a person with autism?
5.19.2008 12:21am
Mary Katherine Day-Petrano (mail):
"...what therapeutic powers does a horse have to offer a person with autism" ——>

You may begin to understand the subjecthere.

You may also want to read about the NARHA, which is the parent organization of numerous of regional and local horse facilities that offer therapuetic horseback riding here

Once a person has spent years of being taught riding for therapuetic reasons, most such persons acquire their own disability service horse uniquely trained to suit their disabilitiesso they ca ride on a daily basis, and even compete beyond the Special Olympics level.

Maybe many people who are unfamiliar with people with autism and other developmental disabilities are also unfamiliar with the use of disability service horses to help people with these types of disabilities, but people with such disabilities an their families are well-acquainted with this issue.
5.19.2008 1:01am
RenegadeX (mail):
Can someone please clarify the following for me:
The 1030(2)(b)(ii) charge deals with Lori Drew's commission of a crime in furtherance of the "tortious act" of "intentionally inflicting emotional distress upon the victim". To restate that:
"So that Drew and co-conspirators could inflict emotional distress upon Megan, the fictitious Josh Evans MySpace account was created and used (in violation of the MySpace TOS Agreement and therefore "exceeding authorization" under 1030(a)(2)(c))".
Does an indictment not have to state the basis upon which the allegations are based? What I mean by this is that I see nothing that indicates why the conclusion is that the goal from the get-go was to harass Megan.

Or do they not have to? In that case, is requesting a bill of particulars appropriate for something like this.. or not at all?

As it happens, I remember reading this article way back when that quoted Megan's mother Tina, alleging the Josh Evans account was created by Drew because "She wanted to get Megan to feel like she was liked by a boy and let everyone know this was a false MySpace and have everyone laugh at her".

It is thus very interesting to note that later in that same article, it says: "Tina says her daughter died thinking Josh was real.."....

--- Oh, and Mary K D-P, the Section 223 item you referred to does NOT apply... see the Definitions section at the bottom of that section, it does not apply to interactive computer services.

However.... I do see something that would put away the person who sent 1 particular message away for 2 years... chances are though they know it was not Lori Drew that sent the message........
5.19.2008 6:44am
Visitor42:
Lack of Imagination on the part of the prosecutors.

Harassment, hate crime, endangerment, possibly even libel as she knew she was telling lies and she had intent to harm (even if the intent was merely to cause the child to disassociate from myspace).

Getting hung up on the fact that a computer was involved, thus thinking computer specific law must be invoked is really dumb.

The prosecutors should review the whole thing again, but every time computer mediated communication plays a part, replace it with a similar, older tech equivalent; phone instead of IM, mail instead of email, paper thumbtacked to cork instead of an online forum or bulletin board post, etc etc etc.
5.19.2008 7:05pm
Sarah Wells (mail):
I'm "stale posting" here simply to back up Daniel Solove's info that one of Drew's primary motivations was to gain information about what Megan might be saying about her daughter. [ Drew actually has formally denied any intention to harass or harm Megan.] One source confirming the motive is a police report instigated by Drew. ( link goes to Smokinggun.com) The officer who took her statement wrote:

She instigated and monitored a "my space" account which was created for the sole purpose of communicating with Meier's daughter. Drew said she, with the help of temporary empoyee named "Ashley", constructed a profile of "good looking" male on "my space" in order to "find out what Megan (Meier's daughter) was saying on-line" about her daughter. Drew explained the communication between the fake male profile was aimed at gaining Megan's confidence and finding out what Megan felt about her daughter and other people.


Drew repeated this motive, though she tempered in to mere permission for Ashley Grills to create the account for this purpose, through formal statements of her (then) attorney, Joe Briscoe.
—————-

I have a few questions about the indictment. Is this really a case of first impression? I have a recollection of the California grand jury investigation being inspired, in part, by a successful prosecution in an unrelated case, based on similar facts: eg, the unauthorized use of a computer system (to commit illegal acts). My memory is too vague to recall whether fraudulent identity, per se, was an issue, but that false information was used to get information otherwise unavailable.

Second, what basis would the court have for refusing to look upon use of a fake ID to get access to information, vs a stolen or cracked password, as a violation of statute here?
5.19.2008 10:32pm
Sarah Wells (mail):
Drew gained access to Megan's private profile pages and comments and personal blog posts using her deception, and this was the point of getting access to Megan in Myspace. Instead of "hacking" the page,say via a trojan horse, she used a trojan boy. Why would the court distinguish the two?
5.19.2008 10:40pm
Delia (mail) (www):
Hi Orin!

Seth Finkelstein sent me your way.

re: " You can imagine the basic idea, though: Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon."

This doesn't make sense to me because 18 U.S.C. 1030(a)(2)(C) is not a stand-alone punishable offense.

Delia

P.S. there is more detail on this in my discussion with Dan Gillmor and Seth Finkelstein on Dan Gillmor's blog D.
5.25.2008 11:53pm