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"Judge Postpones Ruling In Lori Drew Case":
Kim Zetter of Wired has the latest update in the Lori Drew case, namely that Judge Wu decided not to rule at this time on the defense's latest motion to dismiss (this one specifically raising the lack of evidence that any Terms of Service violation was intentional). Our legal briefing on the motion, briefing that Judge Wu sought following Friday's motion at the close of the government's case, is available here. The government's response is here. The evidence in the case has now been submitted, and closing arguments are being held this afternoon.
U.Va. Grad:
The cite to the MPC jumped out at me. I'm curious--how often does it show up in arguments and filings?
11.24.2008 4:55pm
David Schwartz (mail):
The more I read the filings in this case, the more convinced I am that it occurs in some parallel universe rather than this one. The government's spin on both the facts and the law are simply outrageous.

Imagine if a restaurant has a sign that says "shoes and shirts required". Imagine further that the State has a felony trespass law making it a crime to enter someone else's property without permission or to exceed the scope of your permission if you do. Does this make it a felony to enter the restaurant without shoes?

At least in the crazy Florida drug case (possession with intent to distribute for getting a prescription filled, and you can't tell the jury that you had a prescription) the law did in fact say what the government claimed it said.
11.24.2008 5:06pm
einhverfr (mail) (www):

Imagine if a restaurant has a sign that says "shoes and shirts required". Imagine further that the State has a felony trespass law making it a crime to enter someone else's property without permission or to exceed the scope of your permission if you do. Does this make it a felony to enter the restaurant without shoes?


The fact is simple: Lori Drew is being tried for the death of Megan Meiers. They choose a bizarre interpretation of the law because otherwise they have no case. My own suspicion is that this is a matter of a politically motivated prosecution, i.e. the prosecutor wants credit for bringing Lori to justice and is willing to bend the law to the breaking point to make it happen.

However, here is the funny thing. Under the prosecutor's theory, it is nearly certain that Megan was guilty of a similar felony because:

1) Google's terms of service say nobody under the age of majority is allowed to use the service.

2) Nearly everyone online uses Google, and almost nobody reads the Terms of Service.

3) Megan Meiers was under 18 and used the internet, and therefore almost certainly used Google..... Does *every* time Megan used Google add one additional felony her record? Or is this arbitrary prosecution?
11.24.2008 5:43pm
PLR:
The government's spin on both the facts and the law are simply outrageous.

Strange, I would think that preying on a vulnerable child of other parents to the point where she kills herself is outrageous.
11.24.2008 5:43pm
einhverfr (mail) (www):


Strange, I would think that preying on a vulnerable child of other parents to the point where she kills herself is outrageous.


Yet the prosecution's take on the law is that the vulnerable child was probably guilty of sufficient felonies she could most likely be locked up for the rest of her life. Hint: First conviction of searching with Google as a minor: 1 year in prison. Subsequent convictions: 5 years for each search!
11.24.2008 5:47pm
Jacob C.:
Dear Professor Kerr:

On pages 3-4 of your submission you used the phrase "connection to the suicide would trigger extraordinary public approbation." "Approbation" means approval or commendation. You probably wanted to use the word "opprobrium," which means disgrace or scorn. In certain circles, this is a common but unfortunate error in diction.

Obviously, this is not important in the large scheme, and your brief in general is a tight piece of advocacy with nice momentum. But it never hurts to remember the critical importance of having control over every word in your argument. I imagine you've told your students something like that.

All the best,

Jacob C.
11.24.2008 5:47pm
Curt Fischer:
PLR: I don't think anyone is arguing that Lori Drew's conduct is not reprehensible. Many here probably, and myself definitely, find it outrageous. But do you think anything that is outrageous should be considered a violation of law? If so, which ones?

Also, does anyone know of a legal definition for the verb "prey on"?
11.24.2008 5:48pm
Sean M.:
This is pragmatic, but how in the world will Lori Drew be sentenced, if convicted?

The referenced sentencing guideline is 2B1.1, which is the "financial crime" guideline. It's not like Drew caused a "loss amount." I wonder how this will end up working if the case does proceed to sentencing.
11.24.2008 5:50pm
Carolina:

Strange, I would think that preying on a vulnerable child of other parents to the point where she kills herself is outrageous.


Immoral and outrageous, yes. But the point of living under a nation of laws is that citizens are supposed to know, in advance, what actions are crimes. Would you want to live in a society where you could be thrown in jail for nominally legal conduct so long as a sufficient number of persons are morally offended?

Every thinking person should be both disgusted and terrified by this prosecution, IMHO.
11.24.2008 5:51pm
einhverfr (mail) (www):

Every thinking person should be both disgusted and terrified by this prosecution, IMHO.


I completely agree. Among other things this makes nearly every minor guilty of felony computer tresspass (read Google's terms of service).

It also makes uploading "bad stuff" to Youtube a felony. Anyone have a legal definition of "bad stuff?"
11.24.2008 5:54pm
Micha Elyi (mail):
Carolina asked, "Would you want to live in a society where you could be thrown in jail for nominally legal conduct so long as a sufficient number of persons are morally offended?"

American men already live in such a society, Carolina, in case you haven't ever noticed.
11.24.2008 5:58pm
Carolina:
I wonder if Orin is aware of einhverfr's point about Google?

That would be a nice illustration of the absurdity of the gov't position at oral argument: "Judge, the position of the U.S. in this matter is that your niece/nephew/son/daughter etc is a federal criminal for doing Google searches."
11.24.2008 5:59pm
GuestTroll1234 (mail):
I went to Google's home page and didn't see anything that I am bound to the terms of their service agreement when I submit a search. I didn't see anything when I submitted a search via FireFox, which Google has paid a lot of money to the Mozilla Foundation in order to get their site as the default engine on the search bar.

I would think such ToS are void if you are unable to read them prior to utilizing their service.

Megan is also a minor, and therefore unable to agree to such a ToS. It seems to me that if Google doesn't want anyone under the age of majority to use their service, and knowing that anyone under the age of a majority is not considered capable of making decisions for themselves, that it's Google's role to limit their access and not that of the child.
11.24.2008 6:01pm
GuestTroll1234 (mail):
In fact, considering the wealth of publicly available porn available through Google to anyone under 13, Sergey and David should be serving a healthy amount of jail time at this point for violation of a myriad of laws concerning such.
11.24.2008 6:03pm
Lex:
Einhverfr,

I understood that it wasn't just violation of the terms of service, but an accompanying intention to harass/intimidate that made Drew's conduct a putative criminal violation. So unless Megan Meier was running google searches for the purpose of intimidating someone, she hasn't committed a crime under the government's theory. Perhaps I've got that wrong, but I think that's how it works.

Incidentally, this prosecution strikes me as bad only because of its dangerous implications for other, non-morally-bankrupt computer users. It appears this prosecution is motivated by a political/social sense of communal outrage; this only bothers me because it makes the rest of us a little less free. The outrage is justified, and so would be locking her up if the rest of didn't need to make sure the power of locking up outrageous people is constrained by laws. I hope someone makes sure she gets that.
11.24.2008 6:04pm
Philistine (mail):

I understood that it wasn't just violation of the terms of service, but an accompanying intention to harass/intimidate that made Drew's conduct a putative criminal violation.


AIUI, the Government's theory is that violating a site's terms of service is a misdemeanor violation. Their position is that the statute makes a felony any violation which is done in furtherence of any tortious (or criminal) act.
11.24.2008 6:21pm
Mike& (mail):
Orin: Off topic, but I'm curious....... Has seeing this prosecution first hand changed your views on the criminal justice system? Are you more cynical, less cynical? (I know you've handled cases before; but IIRC, not as a defense lawyer for "evil" people like Lori Drew.)
11.24.2008 6:30pm
einhverfr (mail) (www):

I wonder if Orin is aware of einhverfr's point about Google?


Probably. He is working on the case pro bono and I got the point out of the EFF's amicus brief :-)
11.24.2008 7:39pm
einhverfr (mail) (www):

I understood that it wasn't just violation of the terms of service, but an accompanying intention to harass/intimidate that made Drew's conduct a putative criminal violation.


Ok. let's examine this a little bit. The relevant code is 18 USC 1030.

The most basic violation that could fall under the prosecution's theory would be under a(2)(B), which is accessing a protected computer beyond authorized access.

From (e), definitions we get:

(2) the term "protected computer" means a computer—
(A) exclusively for the use of a financial institution or the United States Government, or, in the case of a computer not exclusively for such use, used by or for a financial institution or the United States Government and the conduct constituting the offense affects that use by or for the financial institution or the Government; or
(B) which is used in interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;


That would seem to include just about every internet-connected computer in the country.

What is the punishment for (a)(2)(B) violations? These are spelled out in (c)(2):


(A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;


Ok, so this means up to one year and that might be a misdemeanor, but see what happens when we have repeat convictions.....


(C) a fine under this title or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(2), (a)(3) or (a)(6) of this section which occurs after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;


Repeat offenses are felonies, punishable for up to 10 years in prison, each.

As for the point that Google's terms of service are not terribly accessible, MySpace reserves to change their terms of service without notice, and one would expect that people read the terms of service on every visit. Certainly this is a close parallel.

Regarding Google, note section 2.3:


2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Google, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.


The services include, naturally, the web search service. Note that the main intent here is to reduce Google's liability, not to make criminals out of every minor with an internet connection. The prosecution in the Drew case however, has taken that latter step.
11.24.2008 7:56pm
Ex-Fed (mail) (www):
A note about the case, that may put the government's pursuit of it in context:

The United States Attorney for the Central District of California himself is trying the case. How often does the actual U.S. Attorney of a mega-office like the one in Los Angeles actually try a case? Not bloody often. Why do it in a very high profile, media-intensive case? I leave that to the imaginations of other cynics.

This is a U.S. Attorney, by the way, held in very low esteem by both the local defense bar and by his own underlings -- in part because of his rather bizarrely hostile approach to his own office. This year he gave a speech to an association of retired FBI agents. A large part of that speech was spent suggesting, in so many words, that the federal prosecutors in the office are lazy and arrogant and unresponsive and that he was going to clean them up and teach those Ivy League jerks what was what. Now that's leadership!
11.24.2008 8:11pm
David Schwartz (mail):
I think the strongest argument is simply that terms of service can be arbitrary and fanciful. They are not written with the precision of criminal statutes. To make a violation of a ToS clause, even potentially, a criminal violation is simply absurd.

YouTube's ToS prohibits uploading "bad stuff".

I wonder if anyone can get an official response from Google regarding whether minors are allowed to use their search engine.
11.24.2008 8:13pm
Fub:
David Schwartz wrote at 11.24.2008 8:13pm:
I think the strongest argument is simply that terms of service can be arbitrary and fanciful. They are not written with the precision of criminal statutes. To make a violation of a ToS clause, even potentially, a criminal violation is simply absurd.
If any violation of TOS is a crime, whether misdemeanor or felony, then in that spirit of absurdity -- one simple "pot, meet kettle" experiment could provide plenty of evidence for any criminal defense of selective prosecution under the statute.

Just set up a website with TOS that includes "You may not view this website if you are a government employee or agent... or if you are using a government IP, or a government issued computer..." etc. The TOS could even name names: "Joe Smith, Sally Jones, ... are forbidden to view this website." Surely not all such forbidden access would be privileged against prosecution under current law.

Every time a prohibited person accesses the website, simply file a written complaint with the nearest USADA's office. After enough incidents and complaints, the next non-government agent or employee prosecuted under the statute would have a wealth of proof that the government has not prosecuted a single government employee or agent for the same crime despite huge numbers of complaints.

Perhaps some reporters and even law review writers could begin publishing articles asking why there have been no prosecutions despite overwhelming evidence of rampant criminal lawlessness by government employees and agents.

It may be fanciful, but it's no more absurd than the current prosecution.
11.24.2008 8:52pm
man from mars:
Your use of superscripted "th" in "9th" circuit is an affectation I find exceedingly obnoxious.

Bluebook clearly states the "th" is not superscripted.

And even if it didn't, it's just irritating. Don't you have the slightest sense of typographic design, of aesthetics, of just a modicum of good taste?

There is no purpose served by gratuitously adding a new font. All the more so because the base font is Courier, presumably attempting to replicate a typewriter, and on a typewriter one would not superscript the "th" or, if one did, one would use a special smaller character.

Isn't it obvious that this whole "superscript th" is just some poorly chosen default in a popular word processing program, probably to highlight the features of dot-matrix printers? It has no place in an important legal motion - particularly in Federal court.
11.24.2008 8:58pm
Sean M.:
man from mars,

You're correct on the Bluebook point but this brief was literally produced over a weekend.

Give the man a break.
11.24.2008 9:00pm
man from mars:
Also, I don't like the angled quotation marks that you and the prosecution both use in conjunction with this font. Why not just use straight quotation marks?

Personally, I believe briefs looked a lot better when they were typed on a typewriter. All these fancy fonts have just given lawyers scope for abuse.
11.24.2008 9:03pm
Harvey Mosley (mail):
man from mars,

Wow.
11.24.2008 10:52pm
man from mars:
Well, my rhetoric was hyperbolic and perhaps overly pointed. Sorry about that. It was nice of the poster to put the briefs up, thanks for that.

But the fact that remains, apart from the legal absurdities in this farce/tragedy, which have been discussed repeatedly here, can anyone seriously defend the use of either superscripted "th" or the use angled quotation marks in a legal brief? What about in a legal brief set in Courier?

Many lawyers do this: what is their justification?
11.24.2008 11:38pm
Curt Fischer:

[C]an anyone seriously defend the use of either superscripted "th" or the use angled quotation marks in a legal brief? What about in a legal brief set in Courier?


No one has answered you. Maybe it is because no one can seriously defend the use of angled quotation marks or using Courier. For example, if you ask why I put my pants on left leg first, I confess: I could offer no serious defense.
11.25.2008 12:08am
einhverfr (mail) (www):
Man from Mars:

Going by standard typesetting rules (I don't know how they apply to legal briefs), angular quotes are preferred.

I won't get into hyphenation/justification rules. Once and a while I have to sacrifice one for the other.

LaTeX rules ;-)
11.25.2008 1:11am
man from mars:
The government's brief argues that "ignorance of the law is no excuse" to justify its theory that Drew's not reading the terms of service she's accused of violating does not excuse her violation of the law, that is of the CFAA.

But here, it's not just Drew, it's the entire world who was "ignorant" of the law. Before this case, nobody could have conceived that the CFAA could criminalize violation of MySpace terms of service as such. How was Drew supposed to have predicted the prosecution's widely mocked, and never-before-used, legal theory? Millions or billions of people have cheerfully violated website TOS before without anyone before being charged for the violation as such.

I would attack the verdict on due process grounds: Drew is being prosecuted based on a theory she could not have known applied prior to her being charged.
11.25.2008 2:26am
pintler:

I went to Google's home page and didn't see anything that I am bound to the terms of their service agreement when I submit a search.

From the google main page click 'About Google' and on that page click 'Terms of Service'.


AIUI, the Government's theory is that violating a site's terms of service is a misdemeanor violation. Their position is that the statute makes a felony any violation which is done in furtherence of any tortious (or criminal) act.


So, the 17 year old who uses google maps to find this weekend's kegger ...
11.25.2008 8:19am
PLR:
Yet the prosecution's take on the law is that the vulnerable child was probably guilty of sufficient felonies she could most likely be locked up for the rest of her life.

The child's conduct isn't relevant to the charge against Ms. Drew. In any event I was just momentarily taken aback by your use of the word "outrageous" to describe the prosecutor's actions here. "Strained" or "not credible," maybe.

In retrospect maybe I shouldn't have bothered with the comment, but I have not a drop of sympathy for Ms. Drew.
11.25.2008 11:24am
GuestTroll1234 (mail):
My point remains about Google. MySpace requires you to state that you accept their ToS. Google has it hidden somewhere in their about pages. There is a difference, IMO, between the liability of a person to follow the ToS when they actively accepted it and when the website has hidden it somewhere that the user may or may not have ever seen before.

I thought that website click-wrap agreements were not considered valid. I could be wrong.
11.25.2008 2:06pm
Ryan Waxx (mail):
The child's conduct isn't relevant to the charge against Ms. Drew.


True. That's why the suicide should have been barred from court.
11.25.2008 3:49pm
c.gray (mail):

However, here is the funny thing. Under the prosecutor's theory, it is nearly certain that Megan was guilty of a similar felony because:

1) Google's terms of service say nobody under the age of majority is allowed to use the service.

2) Nearly everyone online uses Google, and almost nobody reads the Terms of Service.

3) Megan Meiers was under 18 and used the internet, and therefore almost certainly used Google..... Does *every* time Megan used Google add one additional felony her record? Or is this arbitrary prosecution?


Doesn't the law require that the unauthorized access be made with the intent to harm another?

The defense's problem in this case is that Drew quite clearly intended malice toward another person, and succeeded in injuring her target beyond her wildest expectations. She is an exceptionally unsympathetic defendant.

As for the prosecution being arbitrary...well, prosecutors do seem prone to losing all perspective and self-restraint when teenage girls wind up posthumously famous on CNN and FOXNews. This is something non-custodial adults dealing with teenage girls forget at their peril.
11.25.2008 4:42pm
GuestTroll1234 (mail):

Doesn't the law require that the unauthorized access be made with the intent to harm another?


With regards to 18 USC 1030? It seems if that is the case, prosecution of any "hacker" under 18 USC 1030 would be pretty difficult as very few access systems "with intent to harm another" but merely for curiosity and the challenge.
11.25.2008 5:31pm