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"Judge: Evidence of suicide OK at Web hoax trial":
The Associated Press has this update in the Lori Drew case. The case is now set to go to trial next week in Los Angeles. (For those wondering, no, unfortunately I will not be in Los Angeles to participate in the trial in person; next week is our last full week of class at GW, so much to my regret I cannot be away for this.)
moving to mars:
What possible probative value is there in the suicide? I thought this joke of a trial was about whether Drew violated the Terms of Service agreement. Even if there is probative value (and what is it) this is clearly outweighed by the rather HUGE prejudicial effect of arguing the defendant was responsible for some teenager's suicide.

What is going on in that trial? It sounds ridiculous, even by contemporary standards.
11.15.2008 1:04am
JB:
She did something morally reprehensible, and the Powers That Be (tm) are throwing whatever they think will stick at her, rather than trying to get her on the law.
11.15.2008 1:21am
Lior:
This case is quickly becoming a travesty. The eminently legal question of whether violating the TOS of MySpace is a Federal Felony will be determined by a lay jury; the prosecution may inflame the emotions of this jury with references to the suicide; and the jury is in any case exempted from having to formally explain the grounds for their decision, so that any miscarriage of justice by them cannot be corrected on appeal.
11.15.2008 1:56am
Syd Henderson (mail):
If she's found guilty, it's an automatic appeal and the verdict is thrown out.
11.15.2008 2:54am
neurodoc:
Lior, Syd Henderson has given you what may not be a certain answer (a guilty verdict that couldn't possibly be upheld on appeal), but is a good one. Should an appellate court conclude that evidence of the suicide was more prejudicial than probative, and hence should not have been allowed, you can be assured the verdict will indeed be thrown out. "Error" that clearly affects the outcome can't be overlooked or excused.
11.15.2008 6:42am
PersonFromPorlock:
If the old "a terrible crime has been committed and therefore the defendant must be guilty" trick didn't work, it wouldn't be an old trick. My memory is failing me and I'm too pre-coffee'd to look it up but at his trial, didn't the feds enthusiastically mix evidence against Timothy McVeigh with immaterial testimony from those who'd lost loved ones at OKC?
11.15.2008 7:58am
xyzzy:
According to the AP story, Judge Wu believes that most members of the jury pool will have heard about the suicide.
Wu said he was now convinced that many prospective jurors would be aware of the suicide from reading news reports or seeing a recent episode of the TV show "Law and Order" that involved a similar scenario.

Is it society better served by having the jury convict based on prejudicial evidence, or by having the jury convict based on scanty rumors, ill-informed news accounts, and fictionalizations regarding suppressed prejudical evidence?
11.15.2008 11:28am
steviededalus:
Ahh, but its' ok; the judge will admonish the jury not to consider the suicide, so everything's fine. AHHH! That's always upset me, that absolutely damning irrelevant and prejudicial evidence will be presented, and the appropriate remedy isn't a mistrial (or a new trial on appeal) but rather just telling the jury not to consider it. But that's obviously not always possible, especially when the evidence is as inflaming as the suicide evidence in Lori Drew's case or a defendant's past criminal record.
11.15.2008 11:48am
PDXLawyer (mail):
It is reported that:
"Assistant U.S. Attorney Mark Krause argued during the hearing Friday that Drew is charged with joining in a conspiracy to cause intentional infliction of emotional distress."
Is this accurate? This would make the suicide relevant, but strikes me as odd. Does anyone know of a good faith argument that conspiring to commit a tort is a crime?
11.15.2008 12:04pm
TerrencePhilip:
Lior wrote: The eminently legal question of whether violating the TOS of MySpace is a Federal Felony will be determined by a lay jury;


Lior, the judge will instruct the jury as to the law, they will have to apply it. I cannot tell if the judge has made a final decision on instructions yet. The government proposed an instruction that accessing a computer "without authorization or in excess of authorization" violates the statute if certain other conditions are met. This ties in with PDXLawyer's question- the government charges the purpose of the unauthorized access was to obtain information in furtherance of a tort, namely intentional infliction of emotional distress.

I have not waded through the defendant's proposed instructions. Obviously, the idea that registering on Myspace with a fake name exposes you to federal criminal liability is disturbing. I hope the judge will seriously consider taking this one away from the jury by directing an acquittal; barring that, I hope the jury's common sense takes over.
11.15.2008 12:25pm
xyzzy:
... information in furtherance of a tort, namely intentional infliction of emotional distress.


Lori Drew has never been found liable for intentional infliction of emotional distress in any court of competent jurisdiction.

Does the United States District Court for the Central District of California, sitting in a criminal trial, have jurisdiction to try this alleged tort?

Does the United States have standing to complain about this alleged tort?

If the fact of liability for the civil tort is tried in a court without jurisdiction, in a case brought by a party without standing, doesn't that deny the defendant her fundamental due process rights?

Stripped down to the barest essentials, this case is a sham. Lori Drew is being tried for murder. But justice is not being done.
11.15.2008 12:43pm
Talkosaurus:
xyzzy wrote:
Stripped down to the barest essentials, this case is a sham. Lori Drew is being tried for murder. But justice is not being done.

Just curious, but as far as I can tell this case revolves around a parent who decided to 'get revenge' for her daughter against a child, knowingly developed a very ill-intentioned trick which she even got an 18 year old family business employee in on, and then gloated about what she had done after the girl committed suicide to friends/neighbors (which prompted a reporting to police. I understand that from a lawyers perspective arguing for the defense on this case is 'fighting bad law, not sticking up for bad people', but if your going to intone the specter of 'Justice being done', what's your version of 'justice' in this case?
11.15.2008 1:00pm
xyzzy:
...what's your version of 'justice' in this case?


In Missouri, the prosecutor exercised his discretion not to charge Lori Drew with murder, or with any other crime.

At this point, “justice” would involve the disbarment of the United States attorney in Los Angeles who brought this sham of a case.
11.15.2008 1:12pm
JB:
Talkosaurus,
"Intentional infliction of emotional distress," or whatever that tort is called. I mean, that's what she did, in so many words.

Manslaughter, if any criminal charge.
11.15.2008 1:41pm
Fub:
PDXLawyer wrote t 11.15.2008 12:04pm:
Does anyone know of a good faith argument that conspiring to commit a tort is a crime?
At common law a conspiracy is a combination for an unlawful purpose. A tort is unlawful.
11.15.2008 1:42pm
zippypinhead:
This ruling sounds awfully close to the line drawn by Fed. R. Evid. 403, as permitting the introduction of unfairly prejudicial evidence.

Although to play devil's advocate, if the Computer Fraud and Abuse Act can properly be applied to unauthorized use of a system in furtherance of cyber-bullying (which is the ultimate legal issue in the case of course), then the harm to the victim of the unauthorized access -- here, suicide -- should be no less relevant than the regularly-admitted evidence of the amount of a victim's loss from unauthorized access in a more conventional prosecution under the statute.
11.15.2008 1:54pm
Fub:
Talkosaurus wrote at 11.15.2008 1:00pm:
I understand that from a lawyers perspective arguing for the defense on this case is 'fighting bad law, not sticking up for bad people', but if your going to intone the specter of 'Justice being done', what's your version of 'justice' in this case?
A civil suit for wrongful death and/or intentional infliction of emotional distress by Megan's estate would be an appropriate vehicle for justice.

Allowing government to cobble out a crime by stretching statutes to fit is a very dangerous policy for courts to adopt. There is more than a slippery slope here; there is an avalanche waiting to bury the First Amendment.

If speech in violation of a service provider's TOS is a felony, and not just a breech of contract for which the provider already has remedies, then any commenter who makes any remotely arguably "uncivil" comment in some internet forums can be indicted for a felony, at the whim of any prosecutor.
11.15.2008 2:27pm
xyzzy:
... the harm to the victim of the unauthorized access — here, suicide — should be no less relevant....


Before you say that Megan was “the victim of the unauthorized access”, I think you must admit that Megan was in Missouri. The suicide did not take place in the Central District of California.

I think this highlights part of the basic unfairness of this prosecution.

“... of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law...”
11.15.2008 2:39pm
Hoosier:
WARNING: TOTAL IANAL QUESTION FOLLOWS--

Are such matters completely up to the discretion of the trial judge? What are the rules that govern the decision of appeal?

I m wondering if this would be similar to a case where, say, I am accused of conspiring with an accomplice to steal a car, and the car owner ends up killing himself. Does the suicide have any bearing at all on whether I did or did not commit the crime for which I am being tried?

Sorry if this sounds naive or ignorant. But I can't get my mind around this case these days.
11.15.2008 2:43pm
U.Va. Grad:
Hoosier:

If I remember correctly (a risky proposition), Judge Wu's decision is reviewable for prejudicial error. It's not an "abuse of discretion" standard of review, which is exceedingly difficult to meet. Instead, the appellate court asks a two-part question: first, whether the evidence was admitted in error, and second, whether that error was prejudicial to the defendant.

Assuming this evidence was admitted in error, I see no possible way it's *not* prejudicial to the defendant.
11.15.2008 5:11pm
Crunchy Frog:
IAANAL, but I don't think the analogy holds. Conspiring to steal a car is clearly a felony - this is more like conspiring to call someone a 'dootyhead'.
11.15.2008 5:12pm
whit:

She did something morally reprehensible, and the Powers That Be (tm) are throwing whatever they think will stick at her, rather than trying to get her on the law.


Jack McCoy (tm) syndrome.

It's disgusting.
11.15.2008 5:50pm
PDXLawyer (mail):
I think I figured out the relevance issue. According to the Gov't, accessing a website in a way which violates the terms of service is, by itself, a felony. Whether or not that's right is the basic issue before the court.

Assuming that Drew's conduct violated the statute, the next question is what *degree* the violation is. The statute specifies a heavier penalty for a violation involving stealing nuclear secrets, for example. It also specifies a heavier penalty for any violation "committed in furtherance of a tortious act" (less than for nuclear secrets, but more than for a non-tortious violation).

Thus, whether or not Drew's conduct was a tort is relevant to determining the degree of the crime.

An interesting sidelight, many websites' TOS include a prohibition on any tortious conduct. See for example Craigslist TOS para 7. Under the Gov't theory in Lori Drew, any attempt to commit a tort using Craigslist (for example, expressing a discriminatory preference in housing) becomes, ipso facto, a serious federal crime.

As another example, Microsoft's Hotmail TOS prohibits any use which, inter alia, harms Microsoft's advertisers. Under the Lori Drew theory, if, for example, Ford advertised on Microsoft's websites, it would be a felony to use Hotmail to recommend to a friend that he not buy a Ford. Since such a message would not be tortious, it would be just a plain, unaggrevated felony, but it would nevertheless be a federal felony.
11.15.2008 6:22pm
trad and anon:
hould an appellate court conclude that evidence of the suicide was more prejudicial than probative
That's substantially more unfairly prejudicial than probative. Your evidence is supposed to be prejudicial to the other side.
11.15.2008 6:48pm
whit:
Imagine if this terms of service law applied to businesses in general, not just websites.

You join a gym. The gym has a rule "no dropping weights and no yelling"

You are doing a lift, and you drop the weight. Then, you yell "#$(#$($#".

Your a felon!

You get a membership at a local video rental store.

They have a rule "rewind before you return videos (yes, they still make videos) "

You return 3 videos, but don't rewind two of them.

YOUR A FELON!

etc.

why should websites have a special law that says that violating their terms of service is a felony, and not Costco, Gold's Gym, Blockbuster, etc?

Not to mention the arbitrariness of the prosecutions.
11.15.2008 7:01pm
pintler:

but if your going to intone the specter of 'Justice being done', what's your version of 'justice' in this case?


If we're talking justice, vice the fine points of the law: the lady should feel horrible, and try to do good to atone. People should give her funny looks and be formally polite.

As to the justice of prosecuting her: the law professor says to the young student 'Frankly, I don't think you have the brains, talent, or personality to succeed as a lawyer, and I mourn for your clients if you persist'. The student commits suicide. How many years should the prof get?
11.15.2008 7:34pm
TerrencePhilip:
Hoosier, a judge's decision to admit evidence is reviewed on appeal for "abuse of discretion," which means it's usually not disturbed. A judge's decision on matters of law alone receive no special deference- such as a decision to give the jury a particular instruction. If he instructs the jury, for example, that it constitutes "unauthorized access" to Myspace servers to use a fake name- that will be reviewed as a question of law.

xyzzy, the question of the tort arises because the criminal statute involved makes it a crime to engage in unauthorized access to a computer "for any criminal or tortious purpose." So the government can, and must, prove that Lori Drew did the charged acts in order to commit a particular tort. The jury will be instructed on the elements of the tort.
11.15.2008 9:35pm
xyzzy:
... the criminal statute...


Congress did not intend to overthrow the Constitution.

I know perfectly well what the government's argument is here. And it stinks.

Those three words, “any tortious purpose,” are wretchedly overbroad. Nevertheless, in my opinion, those three words are susceptible to a fair reading which comports with the Constitution. So that language can't be facially struck down.

Still, as applied here, when those three words are read to extend the reach of a California court over every and any tort committed in any state —or anywhere in the world— those three words are being misread.

Californians may find Lori Drew morally culpable for Megan's death. But Lori Drew acted in Missouri. The alleged infliction of emotional distress occurred in Missouri. And the ultimate effect was felt in Missouri. This is Missouri's affair.

Inflaming a California jury to hold Ms Drew responsible for Megan's death is the height of prosecutorial misconduct. It's an affront to comity between California and Missouri. The federal courts should not allow this travesty to take place.
11.15.2008 10:34pm
Dave Hardy (mail) (www):
Sure sounds like reversible error to me. Relevance and Rule 403. And a prosecutor anxious to get the initial win and headlines, nevermind that it'll get reversed.

The fact of suicide plainly would be relevant to sentencing (as in looking up the max, with regrets that flogging has been abandoned) and to damages in a tort action (how many zeros should be in the verdict for actuals and for punitives, and I were I a juror there would be quite a few, perhaps the GDP of a medium-size nation would do).

But in this case, I really think it's reversible error, and beyond the abuse of discretion standard. Relevance, if any, is minimal. As a juror, learning it, I'd want to beat the snot out of everyone involved, stuff their shirts full of scorpions, and throw them into a septic tank. I'd not expect a juror to be more dispassionate.
11.15.2008 11:06pm
neurodoc:
...the appellate court asks a two-part question: first, whether the evidence was admitted in error, and second, whether that error was prejudicial to the defendant.

Assuming this evidence was admitted in error, I see no possible way it's *not* prejudicial to the defendant.
I'm not clear whether that is really a two-part question as you have stated it, or the same question asked twice.

An appellate court would determine whether the evidence admitted regarding the suicide was more prejudicial (inflame jurors' passions excessively) than probative (persuasive on a rational basis). Or, perhaps as trad and anon corrected me substantially more prejudicial than probative. (I don't know how "unfairly" would come in, since how could it ever be legally "fair" to allow in evidence that was more prejudicial than probative?) If the appellate court concluded that the evidence was more prejudicial than probative, you would have your "admitted in error," so wouldn't it be mere repetition of the question already asked (and answered) to consider if the the evidence was "prejudicial to the defendant"? Methinks if there is a second question to ask, it is whether the error in admitting the evidence might have changed the outcome of the trial, hence wasn't harmless error, so the verdict couldn't stand. And hard for me to imagine how an appellate court could say the evidence admitted was more prejudicial than probative, but hold that that error didn't change the outcome and require a reversal.

[It's been almost twenty years since I took Evidence and I have no practice (nor personal) experience of criminal law, so please tell me if I am wrong about applicable standards.]

Another question - the trial judge in his capacity as trier of law has already decided all the law he can see at this time, at least implicitly, rightly or wrongly, hasn't he? He wouldn't be letting the trial go forward, would he, if he wasn't convinced that the law would allow a conviction on the charges if the facts that the prosecution hopes to prove would support it, right? And the defense can't challenge his conclusions of law before a verdict has been rendered (i.e., no possibility of an interlocutory appeal) appeal, can it?
11.16.2008 7:30am
einhverfr (mail) (www):
IANAL, but....

To me this makes as much sense as the UK invoking antiterrorism laws to freeze Icelandic assets. The law in question was not intended for this purpose and is here applied by the prosecutor who wants to "do something." If you read 18 USC 1030 carefully, you will see that the basic goal was to punish people for breaking into computers. In essence this law is a fairly close analogy to breaking and entering laws.

I think what a lot of people are missing is that the argument that this might be a tortuous action and therefore the suicide evidence is acceptable relies on an interpretation which says that *any* violation of terms of service is a FELONY and punishable by imprisonment of a year or more, depending on circumstances (the tortuous action clause affects sentencing only and raises the maximum prison term from one year to five).

Think about it. This means that 70% of consumers could be prosecuted for FELONY charges if this interpretation holds up, and if the surveys are accurate. This interpretation would seem to me to raise serious Constitutional questions of due process. Furthermore, IANAL, but I think one could argue that extending by interpretation a 1986 law 20 years later to criminalize a behaviour common to the majority of internet users strikes me as against the very principles which caused the ex post facto clause to be put in the Constitution.

However, I will side with the judge on this specific ruling. If this is going to trial, the prosecution needs to provide evidence justifying their sentencing assertions. However, my sincere hope is that an appellate court weighs in and rules that 18 USC 1030 does not apply to mere terms of service violations. In short, I think the best option would be for the jury to convict, and this to be reversed on appeal on the basis that violation of an adherence contract is not criminalized under 18 USC 1030.

BTW, the EFF's amicus brief in this case is interesting.
11.16.2008 12:21pm
TerrencePhilip:
Another question - the trial judge in his capacity as trier of law has already decided all the law he can see at this time, at least implicitly, rightly or wrongly, hasn't he? He wouldn't be letting the trial go forward, would he, if he wasn't convinced that the law would allow a conviction on the charges if the facts that the prosecution hopes to prove would support it, right? And the defense can't challenge his conclusions of law before a verdict has been rendered (i.e., no possibility of an interlocutory appeal) appeal, can it?

neurodoc, if there were motions to dismiss he's denied, he's decided the biggest issues of law already. But there are certainly questions of law proposed by the parties' dueling jury instructions and I don't know if he has decided yet what instructions he'll give. Some other legal questions will undoubtedly come up during the trial, as the defendant renews some of her pre-trial motions and objections. And of course, the inevitable motion for directed verdict will present legal questions. The trial is next week so I doubt any interlocutory appeals will be pursued.

As for whether he'd be letting the trial go forward if he had a problem with the prosecution's legal theory: you may be right, but he might just be holding back on his judgment until he sees the evidence fully fleshed out. Even so judges usually don't like directed verdicts because it robs the prosecution of a chance to appeal in case the district judge gets it wrong (of course, some judges love directed vedicts for this reason!); as an example, Judge Weinstein in Brooklyn let the trial of 2 crooked cops (Caracappa and Eppolito) go to a jury in 2006, and only after the trial did he rule that their case should be dismissed on SOL grounds. It's good that he did it that way in retrospect as the 2d Circuit later reinstated their convictions.
11.16.2008 12:46pm
einhverfr (mail) (www):
TerrencePhillip:

I wonder (IANAL and don't have a PACER account) but wouldn't summary judgement be a useful tool at this point? I.e. even if everything the prosecution alleges is true, I don't see how Lori violated the federal law here. This could then be appealed quickly. Or has summary judgement been brought up?
11.16.2008 1:15pm
TerrencePhilip:
einhverfr,

summary judgment is only available in civil cases. You can file a motion to dismiss a criminal case if what you are charged with does not amount to a crime- analogous to "failure to state a claim" in civil cases- but if that was done here, it's already been resolved. So, they are on to the trial next week.
11.16.2008 1:22pm
einhverfr (mail) (www):
FUB wrote:

If speech in violation of a service provider's TOS is a felony, and not just a breech of contract for which the provider already has remedies, then any commenter who makes any remotely arguably "uncivil" comment in some internet forums can be indicted for a felony, at the whim of any prosecutor.


I think the problem actually goes further than that though I agree with your point. The Government's legal theory as I understand it is that Lori, in violated the terms of service and providing false profile information essentially criminally tresspassed on MySpace's servers. They are defining protected servers in a way which is probably proper, but stretching the definition of unauthorized access to include violations of the adherence contracts found in sites' terms of service.

If you think about it, this means:

1) False information in registering for an account on a newspaper's site would be a felony punishable by a maximum of 1 year in prison on the first offence. Note (as the EFF notes in their amicus brief in this case) that current recommendations issued to children using MySpace encourages them to post false information for their own safety.... According to one survey I referenced above, this would apply to about 70% of internet users....

2) Anonymous speech in violation of terms of service could be criminalized.

3) As you point out, any post in violation of terms of service could be subject to felony prosecution.

Even if you discount the third one and suggest that protected speech might be still protected, and even if you discount number 2 on similar grounds, you still have a stretch which could allow a government to prosecute pretty much anyone they want on such grounds. I know when I am not sure about a site that demands registration, I sometimes provide fake information for my own protection. Does that make me a felon?
11.16.2008 2:34pm
einhverfr (mail) (www):
Fun quote from the EFF Amicus brief linked to above:


George Washington University Law Professor Orin Kerr has argued thoughtfully and persuasively that "unauthorized access" should not include access to a computer in violation of a contract or terms of service. Doing so would:

threaten a dramatic and potentially unconstitutional expansion of criminal liability in cyberspace. Because Internet users routinely ignore the legalese that they encounter in contracts governing the use of websites, Internet Service Providers (ISPs), and other computers, broad judicial interpretations of unauthorized access statutes could potentially make millions of Americans criminally liable for the way they send e-mails and surf the Web.


11.16.2008 5:55pm
xyzzy:
According to Sam Bayard (Citizen Media Law Project), who was writing on November 12th, Judge Wu had not yet decided the motions to dismiss. In Sam Bayard's post, it was further explained:
According to Drew's attorney Dean Steward, who spoke with the Wall Street Journal Law Blog a few weeks ago, Judge Wu wants to hear additional testimony "regarding the MySpace terms of service and the way MySpace works" and apparently intends to bring this information out at trial. Why the court does not require the parties to present this evidence as part of a pre-trial hearing on the motion to dismiss the indictment is not clear — the judge's approach seems to blur his responsibility for ruling on the proper interpretation of the CFAA with the jury's responsibility for determining Drew's factual guilt.


Also of note, the Citizen Media Law Project is maintaining a page with some of the documents in United States v Drew
11.17.2008 12:09pm
Sammy Finkelman (mail):
I guess what we have here is a disntinction being made between what the law reads and what the prosecutor wants to make it be.

She's being prosecuted because of the results and not the intention but the way it has been set up, evidence or argument that it wouldn't have been reasonable to expect the result that happened is legally irrelevant. It wouldn't be in a tort case for wrongful death.

The prosecutor wants to obligate Lori Drew to have had hindsight but not leave her with any defense in which lack of foresight could help her. It's almost a kangaroo court.

His legal argument is not his real argument or motive. The way he wants to prosecute it - any intentional infliction of emotional distress at all would qualify. Even if the intention was merely to make the girl cry, she'd be guilty

But that's not the precedent he really wants to set.

Now, if the thinking was, that it would not be a crime unless a suicide - or the kind of extreme emoitiona distress - proven by a suicide - is necessary for conviction this might make sense. But again, that is not what the prosecution contends - he just wants it to work in reality that way, in order to leave Lori drew with no defense. (except for teh idea maaybe that she wasn't violating the terms of use or had no intention whatsoever of even annoying the teenager)

Now, once the prosecutor has gone wild this way - if there is going to be a prosecution over this - it really is better that the evidence of the suicide is admitted.

Even if the law doesn't say that suicide is necessary for conviction, in a practical sense the prosecution is making it that way, so that is kind of good in order to avoid setting a bad precedent. The fact that the prosecutor really doesn't want to set the precedent is a good thing.

There is only one big problem here. The results don't prove the intention. And really if she is going to be punished for causing the suicide, it *ought* to depend on whether or not she intended it, or at least could reasonably have anticipated it.
11.17.2008 12:40pm
Fub:
Sammy Finkelman wrote at 11.17.2008 12:40pm:
His legal argument is not his real argument or motive. The way he wants to prosecute it - any intentional infliction of emotional distress at all would qualify. Even if the intention was merely to make the girl cry, she'd be guilty

But that's not the precedent he really wants to set.
I think it is the precedent he wants to set. If "His legal argument is not his real argument", then he is making a legal argument in bad faith.
Now, once the prosecutor has gone wild this way - if there is going to be a prosecution over this - it really is better that the evidence of the suicide is admitted.
No, it isn't. If the suicide evidence is admitted, then the jury would be inflamed by evidence irrelevant to proving that defendant committed the crime of breeching a provider's contractual TOS.

Currently at least, whether breech of TOS is a crime is an issue for judges, not juries, to decide. Once that question is settled by courts (as has happened at the trial court level herre), the factual issue for a jury is whether defendant breeched the provider's TOS. As others have pointed out, the consequences of the breech would be relevant only at sentencing.
Even if the law doesn't say that suicide is necessary for conviction, in a practical sense the prosecution is making it that way, so that is kind of good in order to avoid setting a bad precedent. The fact that the prosecutor really doesn't want to set the precedent is a good thing.
No, it isn't a good thing. If the law becomes that breech of TOS is a crime, then no prosecutor will need to show suicide or any other extreme consequence to prove that a defendant committed the crime.

Lewis Carroll described that type of bad faith prosecutorial overreach very starkly:
The King and Queen were seated on their throne when they arrived, with a great crowd assembled around them: the Knave was in custody: and before the King stood the white rabbit, with a trumpet in one hand, and a scroll of parchment in the other.

"Herald! read the accusation!" said the King.

On this the white rabbit blew three blasts on the trumpet, and then unrolled the parchment scroll, and read as follows:
"The Queen of Hearts she made some tarts
All on a summer day:
The Knave of Hearts he stole those tarts,
And took them quite away!"
"Now for the evidence," said the King, "and then the sentence."

"No!" said the Queen, "first the sentence, and then the evidence!"

"Nonsense!" cried Alice, so loudly that everybody jumped, "the idea of having the sentence first!"

"Hold your tongue!" said the Queen.

"I won't!" said Alice, "you're nothing but a pack of cards! Who cares for you?"
11.17.2008 2:14pm
einhverfr (mail) (www):

No, it isn't a good thing. If the law becomes that breech of TOS is a crime, then no prosecutor will need to show suicide or any other extreme consequence to prove that a defendant committed the crime.


Just to qualify. IANAL but this is how I read 18 USC 1030.

Any violation in excess of authorized privileges to any internet-facing computer under that law is a crime and punishable by a maximum sentence varying from 1 to 10 years depending on other circumstances (whether someone was hurt, whether it was in furtherance of another unlawful activity, whether there are any past convictions, etc).

The real problem has to do what "in excess of authorized privileges" means. If it means "in excess of what I can tell you is permissible" as the prosecutor here claims, then (from the EFF brief):

1) Any teenager who runs *any* search on Google (whose TOS says that one must be the age of majority to use the service) is committing a felony.

2) Anyone uploading videos containing "bad stuff" (whatever that means) to Youtube.com has committed a felony.

3) Anyone supplying fake information to a web site requiring registration data in order to access content is committing a felony.

The result of this would be that anyone in this country could be prosecuted for committing a felony at the whim of a prosecutor and this scenario turns the 4th Amendment due process guarantee on its head.

My own thinking is that Terms of Service are adherence contracts, and tend to be seen as subject to more scrutiny than many other forms of contracts. Making a violation of an adherence contract a felony seems to further turn the entire basis of adherence contract law on its head.
11.17.2008 4:35pm