pageok
pageok
pageok
What Does the Lori Drew Verdict Mean?:
For those trying to make sense of the mixed verdict in the Lori Drew case, here's a quick (and somewhat simplified) guide to what it means.

  The government's theory in the Lori Drew case is that it is a federal crime to intentionally violate the Terms of Service on a website, and that it becomes a more serious crime — a felony rather than a misdemeanor — if the Terms of Service are violated to further a criminal or tortious act. The tortious act the government alleged is intentional infliction of emotional distress, which in this case was alleged to have led to Meier's suicide.

   The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website, and that Drew directly or indirectly did so, but it acquitted Drew of having violated Terms of Service in furtherance of the tortious act. That is, the jury ruled that Drew is guilty of relatively lower-level crimes for violating MySpacs Terms of Service (for being involved in the setting up of a fake MySpace account). It acquitted Drew for any role in inflicting distress on Meier or for anything related to Meier's suicide. The maximum allowed penalty for the misdemeanor violations are one year in prison for each violation, although the majority of federal misdemeanors result in a sentence of probation.

  The next step in the case is that the trial judge will rule on whether there was enough evidence for the jury to find that Drew violated the Terms of Service intentionally, or whether the TOS violation was only negligent or reckless or knowing. If the judge agrees that there was enough evidence for the jury to find that Drew violated the Terms of Service intentionally, the case will go on to sentencing for the crime of having violated MySpace's Terms of Service.

  After sentencing, if that happens, the sentence will be followed by an appeal before the Ninth Circuit on the legal question of whether it is in fact a federal crime to violate the Terms of Service of a website. For those not following my coverage of the case, I am one of Drew's attorneys, and yes, if there is an appeal, I will be very heavily involved in it.
PDXLawyer (mail):
Orin wrote: "The jury agreed that it was a federal crime to intentionally violate the Terms of Service on a website,"

I had assumed that the jury instructions said something like this, so the jury was only following the judge's instructions. As to the misdemeanor counts, the jury question presented by the evidence, as I understood it, was whether Drew's violation of the TOS was "intentional."
11.26.2008 2:51pm
OrinKerr:
PDXLawyer,

You are incorrect.
11.26.2008 2:52pm
Respondent:
Is Drew free on bond for the meantime?
11.26.2008 2:53pm
PDXLawyer (mail):
So, there was no instruction on the elements of the charged crime?
11.26.2008 2:58pm
Crafty Hunter (www):
I guess the best way to express my feelings about this matter is that, first, I have no sympathy for Ms. Drew, and second, she shouldn't have been convicted on the charges alleged. This reminds me of the railroading of Martha Stewart on the flimsiest of grounds.

"Hard cases make bad law/judgments/convictions".

I can't say that I wish Ms. Drew any luck, but I *do* wish *you* good luck in reversing a bad conviction based on a bad law that threatens us all. That Ms. Drew will benefit from this is simply a price that must be paid.

This probably summarises the attitudes of quite a few other people who aren't lawyers themselves, for whatever it is worth.
11.26.2008 2:58pm
FantasiaWHT:

The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website,


Isn't that a question of law?
11.26.2008 3:04pm
Angus:
Hopefully this judge has used the tubes of the internets at least once in his life, and will throw this thing out of court.
11.26.2008 3:04pm
A Law Dawg:
Hopefully this judge has used the tubes of the internets at least once in his life, and will throw this thing out of court.


If not, surely the judge's clerk has.
11.26.2008 3:15pm
Snaphappy:

The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website



my head asplode
11.26.2008 3:21pm
OrinKerr:
PDXlawyer,

There were instructions, just not the ones you had assumed.
11.26.2008 3:21pm
Steve:
One wonders if taking advantage of http://www.bugmenot.com/ constitutes a federal crime.
11.26.2008 3:21pm
Brian S:
Many TOS agreements specify that any "offensive" behavior is a violation of the TOS, and also specify that the arbiter of what constitutes "offensive" behavior is the service provider itself, without reservation.

Doesn't this mean that by using a boilerplate TOS, I could declare all activity of all of my registrants "offensive", and convict all of them of similar misdemeanor charges?
11.26.2008 3:23pm
Angus:
Whatever happened to good, old-fashioned jury nullification?
11.26.2008 3:24pm
Tom Hanna (www):
I know it won't go over real well with lawyerly types, but maybe a woman responsible for the death of a 13-year old girl should take her lumps and not appeal.
11.26.2008 3:31pm
GMUSOL05:

I know it won't go over real well with lawyerly types, but maybe a woman responsible for the death of a 13-year old girl should take her lumps and not appeal.


I know it won't go over real well with people who have irrational bloodlust, but maybe the legal system should not be viewed strictly as a results-oriented means of railroading convictions against bad people without regard for the consequences for the rest of the populace going forward.
11.26.2008 3:33pm
TomH (mail):
If you really want to get down to it, Drew violated the terms of service and wrote a lot of mean stuff, but the "offensive" message,that led to the suicide was not written or sent by Drew, but her employee, Grills. So, no need to get on your high horse, especially since Drew was not guilty of conspiracy of any sort either.
11.26.2008 3:37pm
George Weiss (mail) (www):
becuase there was a jury conviction in the case-this means the US can appeal if the judge throws out the case on the motion to dismiss right?
11.26.2008 3:38pm
scote (mail):

After sentencing, if that happens, the sentence will be followed by an appeal before the Ninth Circuit on the legal question of whether it is in fact a federal crime to violate the Terms of Service of a website.


If it is, everybody who's ever used the internet is likely a criminal. When everybody is a criminal governments are free to arrest anyone they choose through selective enforcement, as was the case in East Germany and the Soviet Union.

I can only hope this case is appealed and soundly reversed.
11.26.2008 3:39pm
einhverfr (mail) (www):
I don't know. If the law really says what the prosecutors said, then a) the conviction is appropriate and b) the rule 29 motion should be denied. Of course, I really hope this is not the case, but at this point, that may be a matter for a higher court.

It would seem to my mind to be poetic justice and a fitting way for Lori to repay her debt to society for her case to be the one which establishes that this law doesn't apply to violations of terms of services for web sites. I wouldn't want to have to go through the process as she is, and especially with the infamy that the press coverage will bring. However, we are all better off with a strong ruling against the prosecutor's legal theory here, so I am hoping that the rule 29 motion is denied, and that the appeal rules in Lori's favor on the basis that 18 USC 1030 doesn't apply to this case.
11.26.2008 3:42pm
einhverfr (mail) (www):
Tom Hanna wrote:

I know it won't go over real well with lawyerly types, but maybe a woman responsible for the death of a 13-year old girl should take her lumps and not appeal.


Not if the same legal standard makes all of the rest of us criminals too.....
11.26.2008 3:43pm
George Weiss (mail) (www):

If it is, everybody who's ever used the internet is likely a criminal. When everybody is a criminal governments are free to arrest anyone they choose through selective enforcement, as was the case in East Germany and the Soviet Union



this has been the case since the supreme court ruled that you can be arrested for PC of a crime as small as a seat belt violation.
11.26.2008 3:44pm
RT:
This is tangential, but worth pointing out: Is there a civil suit pending? If so, those misdemeanors will still help the Plaintiffs, and the acquittal isn't going to hurt them.
11.26.2008 3:49pm
Bob from Ohio (mail):

I know it won't go over real well with people who have irrational bloodlust, but maybe the legal system should not be viewed strictly as a results-oriented means of railroading convictions against bad people without regard for the consequences for the rest of the populace going forward.


What an overreaction to a perfectly legimate point of view regarding personal responsibility. There is nothing "irrational" about it. Nor is probation or a few months in a mimimum security prison exactly "bloodlust".

An allegedly adult woman went out of her way to go after a teen age girl who she knew was unstable. The girl killed herself as a totally foreseeable consequence of Drew's actions.

It should be punished by the law. If the "rest of the populace" does such a thing, they should be punished too.
11.26.2008 3:52pm
TomH (mail):
You conclusiont hat suicide is "totally forseeable" is the conclusory opinion that all of the ends oriented, put-drew-in-jail-for-life types rely on.
11.26.2008 3:54pm
einhverfr (mail) (www):

The next step in the case is that the trial judge will rule on whether there was enough evidence for the jury to find that Drew violated the Terms of Service intentionally, or whether the TOS violation was only negligent or reckless or knowing. If the judge agrees that there was enough evidence for the jury to find that Drew violated the Terms of Service intentionally, the case will go on to sentencing for the crime of having violated MySpace's Terms of Service.


I guess what worries me right now is that this is not the best basis IMO for a reversal, and only slightly softens the bits of the prosecution's core legal theory. Making 18 USC 1030 only cover intentional violations of a site's ToS would still criminalize me helping my son look up pictures of bridges on Google.
11.26.2008 3:55pm
commontheme (mail):
I guess that one can construct an argument about why the underlying law is flawed, but the thought of such horrible conduct going unpunished is distasteful as well.
11.26.2008 3:56pm
Brian S:
An allegedly adult woman went out of her way to go after a teen age girl who she knew was unstable. The girl killed herself as a totally foreseeable consequence of Drew's actions.


She was neither charged with nor convicted of any element of what you just described, so your statement is a non sequitur.

She was convicted of a federal computer crime for violating MySpace's Terms of Service. Full stop.
11.26.2008 3:59pm
einhverfr (mail) (www):

What an overreaction to a perfectly legimate point of view regarding personal responsibility. There is nothing "irrational" about it. Nor is probation or a few months in a mimimum security prison exactly "bloodlust".


I suppose I would classify it as unthinking or ignorant rather than irrational. The key issue is that what is lost here is the idea that we live in a country where the rule of law actually is established, and where people are reasonably expected to know what things are crimes before they commit them.

The problem is that criminalizing "bad stuff" by passing laws that allow very selective prosecution is not a way to run a democratic country.

BTW, I agree about personal responsibility though, which is why I think the best outcome would be for the rule 29 motion to be denied and for the decision to come after an appeals process. More time and stress for Lori, stronger precedents for the rest of us.
11.26.2008 3:59pm
Ex-Fed (mail) (www):
I'm appalled at even this lesser conviction. I hope -- against experience -- that Judge Wu will do the right thing. I hope that Obama will appoint a U.S. Attorney for CDCA who will lead my former office -- where I spent the most enjoyable and invigorating years of my career -- in a new direction away from such things.

But make no mistake -- this is no fluke. The feds can, if they put their mind to it, find a way to make nearly any unpopular modern transaction a crime through aggressive application of broad and badly drafted federal legislation. And in some times and places, they have the will to do so -- particularly when renown beckons.
11.26.2008 3:59pm
M R (mail) (www):
"PDXlawyer,

There were instructions, just not the ones you had assumed."

Really nothing? I assume the instructions were something like: "You must find her guilty of the misdemeanor if you find that X" where X is "accessed MySpace without authorization" or "violated the TOS" or something. No matter what X is, it seems that the Court has decided that X is the violation of the federal law - not the jury.

I suppose the instruction could have been "If you decide that violation of the TOS is an unauthorized access of the website, then you must find her guilty" would get to the jury deciding it is a federal crime, but that seems to be an abdication of the court's duty to determine what the words "unauthorized access" means in the statute and to instruct the jury as such. That's like saying "if you determine that injuring but not killing someone is a homicide, then you must find the defendant guilty" is an appropriate way to let the jury deliberate on what the term "homicide" means.
11.26.2008 3:59pm
Fub:
scote wrote at 11.26.2008 3:39pm:
If it is, everybody who's ever used the internet is likely a criminal.
I don't think there is any reasonable doubt that both the prosecutors who argued the law before the courts, and the judges who ruled on it, all knew that.
When everybody is a criminal governments are free to arrest anyone they choose through selective enforcement, as was the case in East Germany and the Soviet Union.
I am equally certain that every one of those who made it the law will say they didn't really intend that result.

I, for one, welcome our new unintentional tyrant overlords.
11.26.2008 4:00pm
man from mars:
Why are so many commentators arguing Drew should be punished for harassing the victim here, when no court has found she actually did? All this jury found, if I understand the verdict right, is that she violated MySpace terms of service, not that she harassed anyone or caused anyone's suicide.
11.26.2008 4:01pm
ShelbyC:
Brian S.

Just because she sasn't charged with or convicted of it doesn't mean it's not true, right?
11.26.2008 4:09pm
Richard Aubrey (mail):
man from mars.

What the jury found as a matter of law and what Drew actually did are two separate issues, right?
Whether or not she was either charged or convicted of harassment does not mean she did or did not harass.
Suppose such harassment is legal. She would, then, not be charged with it.
It's entirely lawyerly to say, then, that she never did it. Which is one of myriad reasons lawyers get so little respect.

That said, being a scum-sucking bitch isn't illegal, and doing it over the wires in some fashion oughtn't change that.
Drew has to live with herself, which shouldn't be hard for her, but there are a good many others who will choose not to.
I hope she's a lonely, old, depressed scum-sucking bitch.
11.26.2008 4:09pm
Kilgore Trout (mail):
Your client is a cruel and depraved person. Looking at what she was charged for I agree that this conviction may not be what we want as a nation.
Given that she knew this child's mental condition, Mrs. Drew should have known she was playing with fire.
Pure stupidity. She might as well have walked over to their house and handed her a rope.
At least her neighbors and the nation have spoken. May she be haunted for the rest of her natural life.
11.26.2008 4:12pm
Hadur:

Why are so many commentators arguing Drew should be punished for harassing the victim here, when no court has found she actually did? All this jury found, if I understand the verdict right, is that she violated MySpace terms of service, not that she harassed anyone or caused anyone's suicide.


Because some of us realize that there is a massive disconnect between practical reality and legal reality, and just because the courts have not declared somebody to be a harasser does not mean that they are not a harasser.

I should clarify: I don't think that Lori Drew committed any crime known to American law (including the crime known as "harassment"), and thus I don't think she should be punished by the law, but I do think she did something that, in everyday English, would be recognized as "harassment".
11.26.2008 4:13pm
PDXLawyer (mail):
Orin, it's probably a stupid question, but I can't seem to find the answer anywhere. What exactly *were* the instructions regarding the elements of the misdemeanor?

I don't know what is normal in federal criminal practice. Do trial courts typically just recite the statute? Is that what happened here?
11.26.2008 4:16pm
solplot:

An allegedly adult woman went out of her way to go after a teen age girl who she knew was unstable. The girl killed herself as a totally foreseeable consequence of Drew's actions.


She was neither charged with nor convicted of any element of what you just described, so your statement is a non sequitur.


Huh? The lack of conviction, or of an applicable law, makes the foreseeable consequence (that tormenting a very troubled teen might lead to suicide) a "non-sequitur"?

I agree that Drew's actions may have been entirely *legal*. But that doesn't change the fact that they are among the most *evil*.
11.26.2008 4:20pm
Laura Ferris (mail):
Orin, I am glad to hear that you are representing Lori Drew, pro bono. Despite the rants infecting what should be a logical discussion about the rule of law, I personally believe that your case is a good one. Not all bad actions should be criminalized and prosecutors should not be allowed to manipulate the plain meaning of the law to fit their purposes of punishment. The fact is, she was convicted of a non-existent crime, and the federal court improperly allowed jurisdiction in an intrastate matter. As a 1L law student, I thoroughly enjoyed reading the court documents you posted on here. Keep up the good work and keep the updates coming!
11.26.2008 4:21pm
Barry P. (mail):
Ex-Fed said:

The feds can, if they put their mind to it, find a way to make nearly any unpopular modern transaction a crime through aggressive application of broad and badly drafted federal legislation.


As they should, when the public demands it. Drew behaved in a way that almost everybody outside the legal profession believes should be punished. She is evil, and we want to punish evil-doers.

The fact that very intelligent people who choose to become lawyers are willing to sell (or, in Kerr's case, give away) every iota of their intellect to ensure that such evil-doers escape their righteous punishment is why lawyers are seen by most people as subhuman.
11.26.2008 4:21pm
Brian S:
Just because she sasn't charged with or convicted of it doesn't mean it's not true, right?

No, but it means it wasn't a crime.

Perhaps I should have quoted a larger block of the message I responded to:

An allegedly adult woman went out of her way to go after a teen age girl who she knew was unstable. The girl killed herself as a totally foreseeable consequence of Drew's actions.

It should be punished by the law. If the "rest of the populace" does such a thing, they should be punished too.


The only things that should be punished by the law are the crimes one is convicted of. The state convicted Drew of a particular crime. It is not the crime this poster is describing, but another crime altogether.

What the jury found as a matter of law and what Drew actually did are two separate issues, right?

As far as this question goes, both legally and morally I would not find anyone responsible for the suicide of another on the basis of the infliction of emotional "distress". One of the elements of this incident that I found disturbing was the idea that petty meanness was elevated to the level of murder by anti-Drew hysterics. If I don't like you and call you a son of a *****, that should be legal. [Assuming I don't do so in a disorderly way.] And if you get depressed because I don't like you and kill yourself, that should be your own damn problem. I am under no obligation to like you or be nice to you and you have suffered no actionable harm if I am unpleasant to you.
11.26.2008 4:24pm
Brian S:
As they should, when the public demands it.

Actually, since we are talking about evil now, I guess I should tell you that your statement here is absolutely evil.

The purpose of having written law should be so that an individual person can reasonably know when their conduct is and is not illegal, and can thereby have absolute assurance of being left in complete peace if their actions are legal. The criminal law should be as clear and precise as is humanly possible, so that within that boundary of clear prohibitions we can be free.

You seem to be advocating maintaining a bunch of vague laws on the books, so that they can be used creatively to abuse people whenever the public becomes agitated enough to demand a scapegoat. That notion is a lot more evil than the low-grade petty schoolyard meanness Drew took part in.
11.26.2008 4:30pm
ronnie dobbs (mail):

An allegedly adult woman went out of her way to go after a teen age girl who she knew was unstable. The girl killed herself as a totally foreseeable consequence of Drew's actions.

It should be punished by the law. If the "rest of the populace" does such a thing, they should be punished too.


Maybe we should prosecute her parents, too, since it must have been "totally foreseeable" that their daughter might have read something upsetting on the internet. Thus, they were bad parents for letting her use the family computer.

Not everything that otherwise qualifies as shitty behavior--such as bullying young girls--needs to be a federal crime.
11.26.2008 4:31pm
Witness (mail):
In a less pussified era of American history, this type of thing would have been resolved via street justice.
11.26.2008 4:33pm
ronnie dobbs (mail):

The fact that very intelligent people who choose to become lawyers are willing to sell (or, in Kerr's case, give away) every iota of their intellect to ensure that such evil-doers escape their righteous punishment is why lawyers are seen by most people as subhuman.


Hyperbole much?
11.26.2008 4:33pm
Realist Liberal:
Shelby C~

Brian S.

Just because she sasn't charged with or convicted of it doesn't mean it's not true, right?


That is correct but just because it is true that she committed a deplorable (but non-criminal) act doesn't mean that she should be criminally punished for it. Legally it does not matter how despicable she is. The correct response to her actions is a civil trial and the entire world shunning her. The only criminal response should be to make cyber bullying a crime, exactly what most states have done. I generally am not big on the slippery slope arguments but in this case it is appropriate. If we start ignoring the actual law and start punishing people just because they are "bad" there is a very dangerous precedent.
11.26.2008 4:33pm
Hadur:

In a less pussified era of American history, this type of thing would have been resolved via street justice.


Even without resulting to petty violence, we still have plenty of ways to extrajudicially punish extrajudicial offenses. Shunning, for instance.

Laugh if you want, but I bet that social punishments such as shunning, loss of status, loss of respect, etc., are what's deterring most of you from acting like assholes in public, with friends, with co-workers, etc. It's effective.
11.26.2008 4:36pm
GV:
Orin, I'm sure you and your co-counsel are already aware of this, but if your client receives a prison term, you should file a motion for bail pending appeal, so that your client can remain free while the Ninth Circuit sits on her case for two years.
11.26.2008 4:37pm
Anderson (mail):
The girl killed herself as a totally foreseeable consequence of Drew's actions

A civil jury could probably find as much -- in my neck of the woods, at least, foreseeability is usually a question for the fact-finder.

It's a bit of a mystery what Drew et al. *thought* they were doing to that girl, if not prodding her towards killing herself. Just having a good laugh?

None of this affects the criminal issue of course.

-- And whether Drew is despicable is beside the point. Despicable people need lawyers too. Maybe more than most people. And god help this country if "being despicable" becomes an impediment to obtaining legal counsel.
11.26.2008 4:37pm
Barry P. (mail):
Brian S.:

Our society treats relationships between adults differently to relationships between children and adults. We afford children all sorts of protections not available to adults, based upon the fact that children are incomplete works and lack the intelligence or emotional maturity to interact on an adult basis.

What Drew did should be a crime. That it isn't is a failing of the lawyers
11.26.2008 4:37pm
Ex-Fed (mail) (www):
As they should, when the public demands it. Drew behaved in a way that almost everybody outside the legal profession believes should be punished. She is evil, and we want to punish evil-doers.

The fact that very intelligent people who choose to become lawyers are willing to sell (or, in Kerr's case, give away) every iota of their intellect to ensure that such evil-doers escape their righteous punishment is why lawyers are seen by most people as subhuman.



She is evil, and we do want to punish evil-doers. But we live in a society in which we punish evil-doers through the rule of law, not through mob rule. Most -- well, many -- of us see this as fortunate, because we know that the majority's vision of what is evil can be fickle and irrational. That's to say nothing of the mercurial nature of the government's view of what evil is. We are protected from these forces by a system that -- when it works -- limits punishment to situations where (1) we have violated a rule previously enacted by our elected representatives, (2) that rule does not violate certain fundamental rights set forth in our founding charter, and (3) the process by which the rule is applied does not violate that founding charter. Through this process, we reject the notion that it's a good thing if the government can punish us for whatever it, and the mob, thinks is deserving of punishment today.

Of course, nothing stops you from adopting a position of canine subservience to the state, in which you accept that the state should be able to punish you for any conduct that it dislikes at any given moment.
11.26.2008 4:39pm
John425:
Too bad we don't have penalties for crap-persons like Drew who should be severely punished on "general principles".
11.26.2008 4:39pm
Ex-Fed (mail) (www):

In a less pussified era of American history, this type of thing would have been resolved via street justice.


It's true. These days, you can get away with whistling at a white woman, too.
11.26.2008 4:40pm
Guest101:
"That it isn't is a failing of the lawyers"

And all this time I've been thinking that legislators, not lawyers, are responsible for defining crimes.
11.26.2008 4:44pm
George Weiss (mail) (www):
ex fed-

small quibble-(although i basically agree with you)

even criminal laws need not be made by elected representatives. (e.g. administrative regulations authorized to carry criminal sanctions and common law offenses in states that still use common law criminal offenses).
11.26.2008 4:45pm
JB:
I am mystified by the fact that many commenters on a high-level, intellectual law blog cannot grasp the notion that there are multiple bad things one can do, and that Lori Drew committed one and was prosecuted for a completely unrelated one, or that doing so was bad.

The lynch mob mentality that has ensued is truly frightening. Commenters like Barry P would strip away any legal protection anyone has except popularity.

Quoting from A Man for All Seasons:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Before you cut down the laws defending the very conduct you are engaging in at the moment you advocate cutting them down, think how you will stand against the Devil when he turns on you for it.
11.26.2008 4:46pm
einhverfr (mail) (www):

Maybe we should prosecute her parents, too, since it must have been "totally foreseeable" that their daughter might have read something upsetting on the internet. Thus, they were bad parents for letting her use the family computer.


Sure, why not? Maybe they even helped her search for material on Google.....
11.26.2008 4:49pm
pintler:

Your client is a cruel and depraved person. Looking at what she was charged for I agree that this conviction may not be what we want as a nation.
Given that she knew this child's mental condition, Mrs. Drew should have known she was playing with fire.
Pure stupidity. She might as well have walked over to their house and handed her a rope.
At least her neighbors and the nation have spoken. May she be haunted for the rest of her natural life.


This is just one of a number of posts of similar tone - wishing drawing and quartering was still legal, etc.

I am curious - if Ms. Drew were to read these comments, and be so affected as to kill herself, do these posters think they should be prosecuted?
11.26.2008 4:51pm
commontheme (mail):
JB - here's the problem: the people's willingness to embrace the rule of law - as opposed to just shooting people like Lori Drew in the street - depends on faith in the law and that depends on whether or not they think the laws are just.

I don't know anything about the underlying case and Lori Drew may be wholly blameless, of course.
11.26.2008 4:53pm
einhverfr (mail) (www):

Our society treats relationships between adults differently to relationships between children and adults. We afford children all sorts of protections not available to adults, based upon the fact that children are incomplete works and lack the intelligence or emotional maturity to interact on an adult basis.

What Drew did should be a crime. That it isn't is a failing of the lawyers


I think the question is: is it currently a crime under laws enacted 2 decades ago despite no attempts to make it apply in this area?

Maybe you are right and what she did should be a crime, in which case, you ought to be on the phone with your congressmen's offices urging some sort of adult vs child cyberbullying package to be pushed through Congress.

We do have this funny thing called due process.......
11.26.2008 4:56pm
Balls Deep:
pintler raises a good point. Maybe Meier deserved it.
11.26.2008 4:56pm
Barry P. (mail):
Ex-Fed:

If one defines "the state" as the aggregate weight of the public will, I have to be subservient to it, if I wish to be part of that society. That is part of the bargain of choosing to live in a structured manner around many other people. If I don't like some aspect of the public will then I can strive to change it, but denying and defying it will only cause me trouble.

Drew performed actions that shocked the public conscience. She preyed upon a child's niavete and lack of emotional maturity. The public want her to be punished, and just because the legislators lacked the foresight to address this specific behavior doesn't mean she should escape justice. Sometimes it is necessary to get creative with unprecedented evil before we get a chance to fill in a crack in the system that went previously unseen.

When an otherwise innocent person is railroaded on "violating Terms of Service" charges, then I'll protest as well. But that isn't what is happening here.
11.26.2008 5:07pm
einhverfr (mail) (www):
Brian P wrote:

The fact that very intelligent people who choose to become lawyers are willing to sell (or, in Kerr's case, give away) every iota of their intellect to ensure that such evil-doers escape their righteous punishment is why lawyers are seen by most people as subhuman.


Let me tell you a personal story about a relative of mine.

My mother's uncle went through law school and entered practice in the early 1950's. He graduated from Yale and went to work for a prestigious law firm. His first prospective client was accused basically of being a communist and stretching laws to make some sort of conviction possible.

His partners told him not to take the case. He left the law firm so that he could help ensure that his prospective client's constitutional rights were protected. Later the government came after him with similar charges (conspiracy, purjury, etc) all based on the idea that he was a community (which in all fairness he was, but that by itself was not illegal even in those days). He fought the charges and won.

Years and much pro bono work later, he was awarded the William O Douglass award by the ACLU. Interestingly, in my discussions with him, he was also a fervent defender of the 2nd amendment.

This is where mob rule leads us. Yet our system is designed to protect us against this sort of thing. In Lori Drew's case, as in the case of my mother's uncle, the fact that someone does something (like send hurtful messages to someone, or defend someone who is unpopular) is not supposed to be enough to get someone charged with a crime.

Lawyers defending rapists, murderers, and even the odd Lori Drew help ensure that we all continue to live in a free society. To suggest that the defending people free of charge or not, in order to protect their Constitutional rights is despicable is purely evil in my view because it leads to a point where the only real crime is that of unpopularity.
11.26.2008 5:13pm
SupremacyClaus (mail) (www):
Orin: How is it a federal crime to violate a contract? What is the name of that crime? A citation of law or case would be appreciated.
11.26.2008 5:15pm
einhverfr (mail) (www):

Drew performed actions that shocked the public conscience. She preyed upon a child's niavete and lack of emotional maturity. The public want her to be punished, and just because the legislators lacked the foresight to address this specific behavior doesn't mean she should escape justice. Sometimes it is necessary to get creative with unprecedented evil before we get a chance to fill in a crack in the system that went previously unseen.


If I write a letter to the US Attorney's office in charge of my area describing how I have knowingly and frequently violated terms of services in the following manner, will you contribute to my defence fund:

1) I have provided false information in registering to view content in sites that I did not trust. I did so to avoid spam.

2) I have helped my young son look up pictures of bridges, trains, and rockets on Google.

3) I have occasionally posted troll comments on sites in violation of terms of service.

4) As a married man, I have searched for and viewed Match.com's terms of service to verify that, yes, it is a violation of those terms of service for me to even read them.
11.26.2008 5:19pm
einhverfr (mail) (www):
Brian P:

The public want her to be punished, and just because the legislators lacked the foresight to address this specific behavior doesn't mean she should escape justice.


As a more important point:

The purpose of living in a governed by laws is that public desire is not enough for criminal sanctions. Hence the ex post facto clause and the due process guarantee in the US Constitution.
11.26.2008 5:21pm
Tatil:
I understand that it might be a federal crime to gain unauthorized access to a computer, which in the case of a "hack" resembles theft in my mind. However, elevating the violation of "terms of service" to that level of a crime sounds a bit too much. It bothers me that somebody can write up any contract and the violation of that contract becomes a criminal matter pursued by the government with taxpayer finance, instead of a civil matter where the party suffering the harm would pursue it. This breaks the link between the amount of harm and the punishment. The harm done to Myspace is negligible, so they could not ask for much compensation in court, but the government can ask for your liberty.
11.26.2008 5:25pm
Tatil:

the trial judge will rule on whether there was enough evidence for the jury to find that Drew violated the Terms of Service intentionally, or whether the TOS violation was only negligent or reckless or knowing.

Prof. Kerr,

Wouldn't that that mean a person who just clicks on "I Agree" buttons without reading those long, convoluted agreements have better protection against criminal prosecution of this types than a person who actually spends the time to understand them?
11.26.2008 5:28pm
einhverfr (mail) (www):
Tatil: If you are married, even reading the match.com terms of service is a violation of the terms of service.

I can't think of a more blatant due notice issue from this interpretation than that.
11.26.2008 5:29pm
pintler:

Drew performed actions that shocked the public conscience. She preyed upon a child's niavete and lack of emotional maturity. The public want her to be punished, and just because the legislators lacked the foresight to address this specific behavior doesn't mean she should escape justice.


I'm not a fan of mob rule anyway, but have you considered that the decisions on selective prosecution you admire are not made by 'the public', but by prosecutors? And those prosecutors serve at the whim of the executive?

One of the advantages of the rule of law is to limit the harm that can be done when, inevitably, evil people come into power. Consider what could happen when Nixon (or someone a lot worse) is deciding who will and won't be prosecuted for a crime that almost everyone is guilty of. Do you want to be on his enemies list?
11.26.2008 5:34pm
PDXLawyer (mail):
SupremacyClaus:

18 USC 1030(a)(2)(C) is the statute under which Lori Drew was convicted. Orin wrote a very good law review article on this point generally, available here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
11.26.2008 5:38pm
Pendulum (mail):
Barry P.,

Once you have established the principle that someone can be subsequently prosecuted for a crime that does not exist when it is committed, the entire society can never be sure when its conduct is legal and permissible. This principle is explicitly enshrined in the Constitution by its prohibition of Ex Post Facto laws.

As for your comments about the state, the state is not the "aggregate weight of the public will." In fact, the whole foundation of the American state is premised on protection of minorities from the public will.

And as for legislation, this conduct should not be illegal. The problems of linedrawing are horrific. Do you wish to punish every bully? How will you measure the severity of bullying? How will you determine whether the bully was in fact merely defending himself from the victim, a greater bully? Do you wish to prosecute a husband for "emotional abuse" of his wife when he calls her names and is verbally derogatory? If so, what words are sufficient?

There is no opportunity for consistency or predictability in your approach - and so ultimately, your approach offers no justice. It reduces criminal law to the whims of a judge or a mob.

But don't worry: when the mob comes for you or yours, a lawyer will rise to the occasion to defend you, pro-bono if necessary.
11.26.2008 5:42pm
Anderson (mail):
None of the jurors would comment as they left the courtroom, nor would Ms. Drew, whose face was red and twisted with rage as she departed.

A pleasant image.

I am curious - if Ms. Drew were to read these comments, and be so affected as to kill herself, do these posters think they should be prosecuted?

I'm not clear how our comments violate the terms of service (whatever they are! oops!), but another relevant distinction is that Ms. Drew persecuted a minor whom she knew "had struggled with depression and suicidal thoughts since the third grade." She is to all appearances quite a wicked person.

-- So I'll say again to be clear that wicked people need lawyers too. If Prof. Kerr were assisting with a mass murderer's appeal because it presented an important issue of Fourth Amendment law, that would not reflect ill on Prof. Kerr; neither should his work on behalf of Ms. Drew, which seems to be motivated by sincere opinions on the legal issues.
11.26.2008 5:43pm
Brian S:
The public want her to be punished, and just because the legislators lacked the foresight to address this specific behavior doesn't mean she should escape justice.

Actually, that's exactly what it means, or should mean.

When an otherwise innocent person is railroaded on "violating Terms of Service" charges, then I'll protest as well.

It's a little bit comical to me that you're claiming that you want "justice" but at the same time you openly admit you don't want people who commit identical acts punished identically. You want commission of identical acts to be a criminal matter if you don't like the person, but to not be a criminal matter if you do. Nice definition of justice you've got going there.
11.26.2008 5:44pm
Anderson (mail):
From the NYT story, which notes that Megan's last e-mail was revealed at trial:

After weeks of online courtship with "Josh," Megan was distressed one afternoon in October 2006, according to testimony at the trial, when she received an e-mail message from him that said, "the world would be a better place without you." Ms. Grills, who is now 20, testified under an immunity agreement that shortly after that message was sent, Megan wrote back, "You're the kind of boy a girl would kill herself over." Megan hanged herself that same afternoon.

Damn.
11.26.2008 5:44pm
Barry P. (mail):
A couple of points many are overlooking:

1) If this was about a dispute between two adults I'd say "take your lumps" to the recipient, or tell him to take it to civil court. But this involved an (alleged) adult executing a petty, vicious mindfuck on a child. That is why there is such a clamor for criminal sanction of her actions.

2) If violating ToS is the only way to get her, then get her that way. I know the lawyers will say "well, let's fix the gap through legislation and we'll nail the next person who does this the right way", but most of the public don't want to see Drew's evil go unpunished. A lack of legislative foresight should no enable evil-oers to escape sanction.

A bunch you are lamenting or deriding beliefs such as mine because we want to punish someone who is "unpopular". She is not unpopular because she is black, or gay, or Arab, or because she stands on the wrong side of Heller or Brown or Kelo or Roe, etc. She is unpopular because she committed acts of evil. That is, she is unpopular and punishment is desired for the same reasons, not unrelated ones.

Simply put, leaving her actions unpunished weakens the bonds of society and makes vigilante actions more likely in the future.
11.26.2008 5:47pm
PDXLawyer (mail):
Sorry - I misused "convicted." Drew has not been convicted, because no judgment has been entered. She's suffered a "guilty" verdict, but there are motions pending.

Orin - your blogging on this case has been stellar. Thank you.
11.26.2008 5:47pm
whit:
this is a frigging libertarian blog. it's amazing how many people think's it's just dandy to "punish" people for essentially being mean, when public outrage demands it.

to me, a big part of living in a free society, being a libertarian, and believing in rule of law is that - there are many things a person can do that are mean, annoying, etc. but aren't/shouldn't be a CRIME.

people here even agreeing with "cyber-bullying laws" makes me cringe. that's the perfect example kneejerk nannystate feel good legislation. "bullying" means essentially being mean to somebody. that shouldn't be a crime.

the prosecution in this case is ridiculous. based on this TOS violations law, practically anybody that has ever used the internet has violated that law. talk about selective prosecution!

one thing in this society that irks me is how many people want "The Man" to solve their problems - their problems defined as somebody else is being mean to them or their precious son/daughter. They want people ARRESTED for being mean.

Sure, what Drew did was mean. So what?
11.26.2008 5:48pm
Patent Lawyer:
This is a bizarre verdict--to my mind, it was arguable (but OK is probably right) whether the conduct violated the lesser charge, but plainly obvious that if violating the TOS was a crime, then it was in furtherance of a tort. I would like someone to intelligently explain how the actual jury verdict could be a coherent result (the tort being intentional infliction of emotional distress.) This feels like a compromise verdict in a case where the compromise verdict made no legal sense.
11.26.2008 5:50pm
Anatid:
Brian S:

As far as this question goes, both legally and morally I would not find anyone responsible for the suicide of another on the basis of the infliction of emotional "distress".


Legally, yes, but morally? If a professional psychiatrist chooses to start exploiting a patient's known weaknesses - manipulating the patient's thought processes and emotions with words - to do harm instead of help, is this morally wrong? How about if the person isn't a professional, but say, a close family member with a deft grasp of the human psyche? Do you think such a thing as emotional abuse can exist, or that an adult can abuse a child in any way other than physically?

There is no way to legally prosecute this kind of behavior without making criminals out of thousands of people practicing lesser annoying/offensive behaviors. But I wouldn't go so far as to argue that it's morally okayAs far as this question goes, both legally and morally I would not find anyone responsible for the suicide of another on the basis of the infliction of emotional "distress". One of the elements of this incident that I found disturbing was the idea that petty meanness was elevated to the level of murder by anti-Drew hysterics. If I don't like you and call you a son of a *****, that should be legal. [Assuming I don't do so in a disorderly way.] And if you get depressed because I don't like you and kill yourself, that should be your own damn problem. I am under no obligation to like you or be nice to you and you have suffered no actionable harm if I am unpleasant to you.
11.26.2008 5:52pm
Barry P. (mail):
prosecuted for a crime that almost everyone is guilty of

"Almost everyone" has successfully manipulated a troubled child into committing suicide?

Maybe you have, but I certainly have not.
11.26.2008 5:55pm
Guest101:
Prediction: Conviction is overturned and remanded on evidentiary grounds (for admitting the highly prejudical and none-too-probative evidence of the suicide) without reaching the legal question of whether violation of TOS constitutes a federal crime.
11.26.2008 5:58pm
Guest101:
Barry, how do you still not get that manipulating a child into suicide is not what Drew was convicted of?
11.26.2008 5:58pm
Ex-Fed (mail) (www):
So I'll say again to be clear that wicked people need lawyers too. If Prof. Kerr were assisting with a mass murderer's appeal because it presented an important issue of Fourth Amendment law, that would not reflect ill on Prof. Kerr; neither should his work on behalf of Ms. Drew, which seems to be motivated by sincere opinions on the legal issues.



The pregnant negative -- which Anderson may or may not intend -- is that it would reflect ill on Prof. Kerr (or on any other lawyer) to defend an evil person if that person's defense presented no "important" or interesting issues.

Another view would be that our system is premised on every criminal defendant having a right to a vigorous and competent defense, and that there is nothing wrong or shameful about fulfilling that function whether or not a defense presents novel, interesting, or important legal issues.

I'll let you guess which way I feel.
11.26.2008 6:00pm
Brian S:
If violating ToS is the only way to get her, then get her that way.

Unless you're willing to similarly punish each and every last person who has ever violated the terms of service of a website in any manner whatsoever, as soon as you make this statement I don't want to hear you make any argument based on a call for "justice" again.
11.26.2008 6:03pm
commontheme (mail):

this is a frigging libertarian blog. it's amazing how many people think's it's just dandy to "punish" people for essentially being mean, when public outrage demands it.

Two things: first, ha ha ha that this is a libertarian blog. Given the level of torture fanboys and Bush apologists hereabouts, it is just as neocon as libertarian.

second, I like the way you equate encouraging a distraught teenager to commit suicide with "mean." There are valid reasons to have concerns about this prosecution. There are also valid reasons to be concerned about a justice system where Drew's (alleged? actual?) conduct goes unpunished.

I mean, think about it. If I were one of the girl's parents and the DA's office told me "tough luck, she's just mean, nothing we can do about that" I would find it very tempting to take justice into my own hands. I'd submit that most normal parents would as well. Isn't one of the goals of our justice system to discourage such things?
11.26.2008 6:03pm
einhverfr (mail) (www):

"Almost everyone" has successfully manipulated a troubled child into committing suicide?


What does "due process" mean to you? What about "ex post facto?" Are you really suggesting we throw these things out the window because punishing one bad person is more important than the things that protect us from being punished at the whim of the executive branch?
11.26.2008 6:05pm
Anderson (mail):
which Anderson may or may not intend

Not, I think.

But there's perhaps a difference between being a professional in criminal defense -- which I agree is respectable -- and being a law professor who offers his services (paid or not) in a given case.

In the latter instance, I think the question of motivation is potentially relevant.
11.26.2008 6:07pm
Anderson (mail):
would find it very tempting to take justice into my own hands

I was thinking that myself. I wonder if mental cruelty is a crime in any jurisdictions, and if so, how it's defined to exclude mere assholery?
11.26.2008 6:08pm
PDXLawyer (mail):
PatentLawyer: It might well be a compromise verdict in fact, but I'd guess there would be an argument that it was a permissible reading of the evidence.

Typically, intentional infliction of emotional distress is a much narrower tort than its name implies. Usually it includes elements like an intention to cause severe harm and an awareness that it was probable. Also common is an element of some sort of special or quasi-fiduciary relationship. Of course, I don't know Missouri law in particular, nor do I have the record of the evidence.
11.26.2008 6:10pm
whit:

second, I like the way you equate encouraging a distraught teenager to commit suicide with "mean." There are valid reasons to have concerns about this prosecution. There are also valid reasons to be concerned about a justice system where Drew's (alleged? actual?) conduct goes unpunished


not every mean act can or should be punished. especially when it comes down to mere words.

if the girl hadn't committed suicide, would we be here? she chose to commit suicide. libertarian = PERSONAL RESPONSIBILITY.

is there arguably a CIVIL CASE here for emotional distress and all that? sure.

i'm not concerned about a justice system where this would go "unpunished".


I mean, think about it. If I were one of the girl's parents and the DA's office told me "tough luck, she's just mean, nothing we can do about that" I would find it very tempting to take justice into my own hands. I'd submit that most normal parents would as well. Isn't one of the goals of our justice system to discourage such things?



let me give you an analogy. i used to be a cop in hawaii. a woman made a statutory rape complaint on behalf of her 14 yr old daughter, claiming that when she had been on vacation a few weeks back (she was now finding out), her oh so fragile 14 yr old had been going to a hotel room and having sex with two males in their 30's.

that sux.

however, it's not a crime. hawaii's age of consent at the time was 14.

would the girls parents be tempted to take justice into their own hands? sure. so what? it wasn't a crime. she threw a friggin' hissy fit, but the law is the law.

the parent's redress should be civil court, etc. i am sorry, but being mean to a teenager is not something the courts should criminalize. in this case, there was no such crime, so they bootstrapped this TOS crap that is something that practically everybody who uses the internet does. it was ridiculous.

believing in the rule of law means that sometimes people can be mean and evil and the law can't do anything about it. i am fine with that. because i believe in rule of law and personal responsibility.

fwiw, i have little doubt in my mind that right now there are thousands, if not millions of people saying mean stuff to teenage girls, boys, etc. and that the vast majority of them won't commit suicide.

people want their pound of flesh and they want to BLAME SOMEBODY. that's what it comes down to.
11.26.2008 6:12pm
einhverfr (mail) (www):
Anatid:

Ok, I see some exceptions to the Brian S's original point but I agree with him about the basics. IMO, unless there is clear intent to cause suicide, then there is no responsibility morally.

I am not saying that cruel behavior is not morally wrong, but there is a gap between saying that someone is morally responsible for acting cruelly and that one is morally responsible for someone's suicide. There may be cases where the latter is true, but I wouldn't make it a general rule.

BTW, I think that Lori seems to be responsible for at least some level of cruel behavior. As a result, I think that a fitting way for her to repay her debt to society is for to be the one who has to go through hell in order to establish that 18 USC 1030 doesn't generally apply to terms of service violations.
11.26.2008 6:12pm
Brian S:
Legally, yes, but morally? If a professional psychiatrist chooses to start exploiting a patient's known weaknesses - manipulating the patient's thought processes and emotions with words - to do harm instead of help, is this morally wrong? How about if the person isn't a professional, but say, a close family member with a deft grasp of the human psyche? Do you think such a thing as emotional abuse can exist, or that an adult can abuse a child in any way other than physically?


Well, the key word is "responsible". In some generalized sense it's more moral to be nice to people than to be mean to them [assuming we're in a morally neutral situation where the person in question has not done something themselves to deserve your hostility], so I suppose it can be immoral to be mean to someone. That would mean that "emotional abuse" is possible. But the fact that your behavior is immoral, or hostile, or abusive, or even that it violates some sort of duty of care [like the psychologist] does not make you morally responsible for the voluntary act of another.

If I'm being mean to you to manipulate your emotions, you can defeat my scheme utterly and effortlessly by the simple expedient of not giving a damn what I say. Or by not listening.
11.26.2008 6:20pm
Dave N (mail):
As a career prosecutor (though at the state level), I think this prosecution is appalling.

Yes, Lori Drew is a despicable human being who deliberately did something very destructive. I am all in favor of shunning her, boycotting wherever she works, and doing whatever I can to show my moral revulsion at her actions.

But just because I loathe and despise what this woman did does not mean I think her actions are criminal--and like others I oppose criminalizing conduct just because it feels good or right to do so.
11.26.2008 6:22pm
einhverfr (mail) (www):
Just my own feelings about anti-cyber-bullying laws.....

Obviously there are limits to what is protected under the first amendment. I think that appropriately scoped legislation would be good, but that one would have to be careful so that protected speech is not unacceptably encroached upon.

One of the hazards of a free society is that we have to endure uncivil behavior. If we weren't a free society, we could outlaw impoliteness, rudeness, and general cruelty. Then we could prosecute selectively so that the state could always keep its enemies behind bars. So having said this, there are two elements I would like to see in such laws:

1) For something to be beyond protected speech (regarding harassment) on the internet the victim must request that contact cease and must take unambiguous steps to avoid such contact. For example, if I send an email to Orin and call him an apologist for lawlessness that is ok. If he blocks my email, and sends me a request not to harass him anymore, and I create a new email address for the purpose of continuing my harassment, that is clearly beyond what is my protected right to speak.

2) Bullying must be personally directed. We all have had flamewars over legitimate issues. I would hate to think that my continuing to send security flaw reports to a certain software developer might at some point be seen as bullying.....
11.26.2008 6:25pm
BT:
The question I have is, is there a civil case pending against Drew? That seems to be where the retribution will play out assuming of course that Drew has any assets to forfeit.
11.26.2008 6:26pm
ReaderY:
If I pay my bill 1 day late, have I committed a federal crime?
11.26.2008 6:29pm
xyzzy:
... but plainly obvious that if violating the TOS was a crime, then it was in furtherance of a tort.... This feels like a compromise verdict in a case where the compromise verdict made no legal sense.


Always beware of “plainly obvious”.

According to a St . Louis news report:
Most members of the six-man, six-woman jury left court without speaking to reporters. One juror, who would only identify himself by the first name, Marcilo, indicated jurors were not convinced Drew's actions involved the intent alleged by prosecutors.

"Some of the jurors just felt strongly that it wasn't tortious and everybody needed to stay with their feeling. That was really the balancing point," he said.
11.26.2008 6:29pm
hattio1:
some Previous commenter says;

Laugh if you want, but I bet that social punishments such as shunning, loss of status, loss of respect, etc., are what's deterring most of you from acting like assholes in public, with friends, with co-workers, etc. It's effective.


You're assuming quite a bit if you assume I'm not an asshole.


More Seriously, Barry P. says;


That is, she is unpopular and punishment is desired for the same reasons, not unrelated ones



Guess what, the KKK wanted to punish the freedom riders for inciting black folks to the crazy belief that they were equal to white folks. And that is exactly why the freedom riders were unpopular in the South (and much of the North). Moreover, the majority thought they were evil. There you go, we have the trifecta, let's go back and charge them freedom riders with something*. Barry P. has given it the go ahead.

*Anyone who doesn't recognize this as sarcasm is a freaking idiot...but that seems to describe some commenters, unfortunately.
11.26.2008 6:35pm
einhverfr (mail) (www):
Brian P wrote:

Simply put, leaving her actions unpunished weakens the bonds of society and makes vigilante actions more likely in the future.


You may be factually correct on this point, but I don't think it is sufficient.

One of the books I have read recently is Plato's "Republic." In case you haven't actually read the work, Plato is seeking the meaning of justice, and therefore seeks to imagine a society which is as just and moral as possible. The result is a set of ideas which were pretty clearly used as the template for Khomeni's Islamic Republic of Iran, and in fact a number of names of institutions in Iran are pretty clearly borrowed from Plato's work (Council of Guardians, for example). Note that Khomeni's original idea was that a religious philosopher renowned for justice would be the absolute dictator of all matters.

The thing is, if morality and justice are the only things that matter, than Plato is right on every level, from the expansive authority of the state, through the abolishment of private property, even to censorship. However, in the bargain one loses every element of freedom and personal autonomy.

Me? I would still prefer to live in the US than in Iran. You are free to differ with me on this.
11.26.2008 6:44pm
JB:
JB - here's the problem: the people's willingness to embrace the rule of law - as opposed to just shooting people like Lori Drew in the street - depends on faith in the law and that depends on whether or not they think the laws are just.

I don't know anything about the underlying case and Lori Drew may be wholly blameless, of course.


She is guilty of -something-. IANAL, but manslaughter might stick, if you could prove that it was predictable that the harassment would lead to suicide. Being taken for every cent she owns in civil suit for intentional infliction of emotional distress, certainly.

But if someone runs across the street to shoot someone, you don't prosecute them for jaywalking and introduce the gun as evidence, no matter how much of a douche they are.
11.26.2008 7:00pm
Allan (mail):
Bad woman. Go to jail.
11.26.2008 7:12pm
whit:

The thing is, if morality and justice are the only things that matter, than Plato is right on every level, from the expansive authority of the state, through the abolishment of private property, even to censorship. However, in the bargain one loses every element of freedom and personal autonomy.




bingo.

in a free society, there are lots of things that are obviously immoral that aren't illegal, and in many cases would be unconstitutional to make immoral.

i don't think anybody (with any sort of developed sense of right and wrong) could argue that drew didn't do something morally suspect (at best) or just plain evil (at worst).

bootstrapping a law that is TOTALLY arbitrary and selectively enforcing it against her because people are outraged is also just plain evil, and dare i say it... unamerican.

several here have said that it's ok to misuse the law if you do it against a person who did something evil. that's just plain WRONG.
11.26.2008 7:14pm
whit:
edit: should be "unconstitutional to make ILLEGAL"
11.26.2008 7:15pm
einhverfr (mail) (www):
Just as a note, Iran isn't as intrusive in private matters as Plato's guardians either....
11.26.2008 7:26pm
einhverfr (mail) (www):

i don't think anybody (with any sort of developed sense of right and wrong) could argue that drew didn't do something morally suspect (at best) or just plain evil (at worst).


I don't know. What exactly is there an agreement that she did?

I am just asking because until I see an agreement, I suppose one with a developed sense of right and wrong might actually argue that she didn't do what she was accused of doing. We already know that a lot of the messages came from Grills rather than herself.

Personally I wouldn't make that argument based on my understanding of the case, but I might if my understanding changed :-)
11.26.2008 7:31pm
whit:
i really don't want to get into a long wank about the MORALITY aspect of what drew did (or didn't do).

that was just an aside. i'm way too disgusted about the legal aspects of this case.
11.26.2008 7:32pm
einhverfr (mail) (www):
BTW, whit-- I agree with your main points. Just trying to be precise about one hair that I thought needed splitting ;-)
11.26.2008 7:40pm
whit:
no worries. devil, details, etc.
11.26.2008 7:48pm
xyzzy:
What exactly is there an agreement that she did?


According to the prosecutor, United States Attorney Thomas O'Brien, as he's quoted today in the New York Times, Lori Drew targeted “a little girl”.
Mr. O'Brien, who tried the case himself with the firepower of two subordinates, said he was pleased with the verdict. "The overwhelming message," he said, "is if you are going to attempt to annoy or go after a little girl and you're going to use the Internet to do so, this office and others across the country will hold you responsible."

At least as far as this case goes, that's the official view of the United States government.

Although, as I ponder the verdict, I'm not convinced that the jury agreed with the government.
11.26.2008 7:53pm
David Welker (www):
whit,

I think the moral aspects of the case are quite relevant. First, those moral aspects go to the issue of prosecutorial discretion. If someone's behavior is morally acceptable or harmless, then prosecutors are much less likely to devote resources to prosecuting them, even if technically they have committed a crime. Further, the more outrageous someone's behavior, the less I am concerned about "notice." (Especially since this "notice" idea is somewhat fictional. When was the last time you actually read the Federal Criminal Code anyway? What about most people?) If you engage in horrendous behavior, I wouldn't be too shocked if later it turns out to be a crime. Most of us stay out of trouble not by a careful parsing the Federal Criminal Code before acting, but instead by acting in ways that generally comport with generally accepted concepts of morality. As soon as you act outside those bounds, then you had better be extra careful that your actions are not illegal.

Yes, in our society, there are some actions that are immoral and evil that are not illegal. But, before you start engaging in evil and immorality, it would be wise to be sure that your actions are not also illegal.

Obviously, I am not saying that due process is not important. However, when someone engages in really egregious, immoral, and evil conduct, I certainly have less sympathy for them when they are prosecuted under laws that are not enforced against other technical violators who are not engaged in immoral or evil behavior.

Finally, overall, I find your dismissive language to lessen, not increase, your persuasiveness. (i.e. "wank," the sarcastic use of the words "precious" and "fragile" to describe people, and the phrase and "hissy fit" to describe the behavior of a mother that is rightly upset over the abuse suffered by her daughter by adult men.

I don't know if persuasiveness is important to you. But if it is, I would suggest more professionalism in your word choice. You may think being a jerk increases your persuasiveness (and I would definitely say that you sound like a real jerk, a real piece of work, given your description of the mother's rightly upset behavior when her 14 year old daughter is abused by two 30-year old men as throwing a "hissy fit.")
11.26.2008 7:54pm
CDR D (mail):
>>>Whatever happened to good, old-fashioned jury nullification?

<<

Well, any prospective juror who appears to know the true power of the jury will not survive voir dire.

Both sides want pliable jurors, who are sufficiently intimidated by the judge and who will follow the judge's instructions.
11.26.2008 8:01pm
whit:

Obviously, I am not saying that due process is not important. However, when someone engages in really egregious, immoral, and evil conduct, I certainly have less sympathy for them


this doesn't have anything (for me) to do with sympathy for DREW. it has to do with belief in the rule of law, etc.

those are two entirely different things. i most certainly do not feel sorry for drew. i wouldn't feel sorry for her if she got beat up tomorrow. i am outraged at the vindictive application of a bogus law in order to "seek justice". it's crap. that says exactly ZERO about my sympathy for drew.


you are doing exactly what i find so egregious. here, i'll quote you...


However, when someone engages in really egregious, immoral, and evil conduct, I certainly have less sympathy for them when they are prosecuted under laws that are not enforced against other technical violators who are not engaged in immoral or evil behavior


again, this is NOT about sympathy for drew. it's about belief in the law and justice. it is not OK to misuse the law to "get" the bad guys. it aint ok when cops do it, and it aint ok when prosecutors do it. PER-I-OD.



"hissy fit" to describe the behavior of a mother that is rightly upset over the abuse suffered by her daughter by adult men.


except "hissy fit" is quite appropriate GIVEN her behavior. when i think hissy fit, i think screaming, ranting, name calling, crying, etc. which is what she did.
11.26.2008 8:05pm
einhverfr (mail) (www):
xyzzy: That doesn't answer my question.

If we agree that Lori did the things she is accused of doing, then it is morally wrong IMO (and probably everyone else's here). However, if we don't start from this premise, and have to begin by asking what she actually did, then the question of whether she did anything morally suspect is open. It is a hair to split but the was addressed to whit's point (mostly to specify his (?) assumptions on the facts rather than to bring up a serious arguments).
11.26.2008 8:05pm
David Schwartz (mail):
Simply put, leaving her actions unpunished weakens the bonds of society and makes vigilante actions more likely in the future.
I think confidence in the criminal justice system and the belief that we really are a nation of laws is what makes vigilante action unlikely. You think that when the legal system acts as vigilantes themselves, that makes it less likely that other people will do so.
11.26.2008 8:16pm
whit:
david, exactly. the "jack mccoy'ism" here astounds me. so, we are going to unjustly persecute people because if we don't there might be vigilante justice? this is a rationale? seriously?
11.26.2008 8:18pm
xyzzy:
If we agree that Lori did the things she is accused of doing....


Reuters now has another juror's view about who did what:
Juror Shirley Hanley told Reuters outside of court she and her fellow panelists cleared Drew of the more serious charges because they could not be sure who typed the MySpace messages that so upset Megan.
11.26.2008 8:31pm
einhverfr (mail) (www):
Welker-- here is how the moral elements affect my view:

If she wasn't accused of doing something that was morally unsettling I would hope for the jury to acquit on the basis that the harm at the trial court level could be later undone on appeal.

The fact that she is accused of some pretty unsettling things means I think it is no longer so important for her to get off as quickly as possible and would rather see things drawn out so that one gets a higher court ruling soundly on the matter. Poetic justice.... Let her suffer stress but let it be for the public good.
11.26.2008 8:38pm
Grace51:
Megan Meier was 13 years old......my space TOS says one has to be 18. Why did her parents let a clearly fragile girl go on my space when it is well know that it is full of predator?
11.26.2008 8:39pm
David Welker (www):
I think whit, that when you use the term "hissy fit" to describe behavior, it suggests that they are excessively upset, given what has happened. It isn't the most respectful way to describe the behavior of someone who is acting in the manner you describe.

I would certainly give a mother whose daughter was abused in the manner you describe much more license before using the term "hissy fit." But perhaps you just have a different conception of the word than I do. Perhaps you do not mean this to be a derogatory comment towards the emotional reaction of the mother, but instead think it an objective description. I don't think most people would see it that way, but if that is how you see it, it certainly changes my view of your choice of words. In that case, I think those words were a mistake, but I do not think you are really a jerk.

All I have to say is this. I think if you want to be more persuasive, you should be more careful with your word choice. You should try to lessen your use of sarcasm.

I personally think that you should want to be persuasive. Because you certainly have the brains. You seem to be very bright. You have a lot of interesting points and arguments. But, for me at least, this is sometimes obscured by your use of language.

As far as the rule of law point, I do not think there are any real notice problems here. Clearly, Drew violated the law. Now, it is true that most people who violate TOS agreements in much less despicable ways do not have the federal government prosecute them. That is prosecutorial discretion at work. Here, prosecutors clearly decided it was appropriate to bring a case because of the despicable nature of Drew's actions.

On a related note, what do you think of the Spitzer prostitution case? It is unusual for the Federal government to pursue adult prostitution cases. Was this exercise of discretion in enforcing the law also a violation of due process?

Speaking of which, as a police officer, is your decision to not give person A a ticket, but person B a warning, for conduct that violates the exact same statute a violation of A's due process rights?

You can see where I am going with this, I hope. Basically, I do not think there are any due process problems here. A still has to pay his ticket, whether or not B got lucky and got off with just a warning. Drew is still guilty of violating federal law, even though prosecutors do not usually pursue these kinds of cases.

I personally think that Drew got off easy with only misdemeanors sticking. Her actions were pretty clearly in furtherance of a tortious act. But the jury decided otherwise.
11.26.2008 8:44pm
David Schwartz (mail):
David Welker:
As far as the rule of law point, I do not think there are any real notice problems here. Clearly, Drew violated the law. Now, it is true that most people who violate TOS agreements in much less despicable ways do not have the federal government prosecute them. That is prosecutorial discretion at work. Here, prosecutors clearly decided it was appropriate to bring a case because of the despicable nature of Drew's actions.
Are you serious? What law did she clearly violate?

Prior to this prosecution, nobody would have imagined that ToS provisions had the force of Federal law. It was considered by most to be an absurd stretch to make that argument. The only reason that was even done here was, almost too obviously, because Prosecutors were desperate to find any law they could use.
11.26.2008 8:56pm
David Schwartz (mail):
DW: Prior to the Lori Drew case, how do you think most intelligent Americans (or even most lawyers, intelligent or otherwise) would have responded to this statement, "You're using a fake name on MySpace, isn't that illegal?".
11.26.2008 8:58pm
whit:

All I have to say is this. I think if you want to be more persuasive, you should be more careful with your word choice. You should try to lessen your use of sarcasm.


well, it IS the "refuge of a scoundrel"...


Clearly, Drew violated the law. Now, it is true that most people who violate TOS agreements in much less despicable ways do not have the federal government prosecute them. That is prosecutorial discretion at work. Here, prosecutors clearly decided it was appropriate to bring a case because of the despicable nature of Drew's actions


and practically everybody who uses the internet routinely violates TOS agreements. and NONE of those people are prosecuted. nor should they be. the law is thus being applied totally vindictively and arbitrarily because she did OTHER stuff we think is atrocious.

simply not cricket.

for pete's sake, how many MILLIONS of myspace profiles ADVERTISE that the page holder is under 18?


On a related note, what do you think of the Spitzer prostitution case? It is unusual for the Federal government to pursue adult prostitution cases. Was this exercise of discretion in enforcing the law also a violation of due process?




no, because people KNOW (especially spitzer) the law in this regards, and hiring prostitutes is not routinely done by millions of people without even a consideration that they might be breaking the law. it is simply not analogous. now, i think it's a good thing that they dropped the whole spitzer thang, given a little time.



Speaking of which, as a police officer, is your decision to not give person A a ticket, but person B a warning, for conduct that violates the exact same statute a violation of A's due process rights?

You can see where I am going with this, I hope. Basically, I do not think there are any due process problems here. A still has to pay his ticket, whether or not B got lucky and got off with just a warning. Drew is still guilty of violating federal law, even though prosecutors do not usually pursue these kinds of cases.




i was kind of waiting for that. no, i don't. it's perfeclty ok to give a warning for (minor) criminal behavior and civil infractions, and that's based on the totality of the circ's known at the time. that is a bit different than taking a single case and applying a law that is routinely IGNORED by the millions of others who do it.

i'm not saying prosecutors (and cops) shouldn't have some discretion. but prosecuting somebody for something like violating a TOS is qualitatively and quantitatively different.

i look at the TOS thing like this.

every business has rules (no shirt, no service.. etc.)

is it fair to prosecute people for violating such a TOS if there was such a law? of course not.

i was hoping for jury nullification, frankly.
11.26.2008 9:11pm
xyzzy:
Her actions were pretty clearly in furtherance of a tortious act.


“Pretty clearly” is another one of those phrases like “plainly obvious”.

The phrase “tortious act” is a legal term of art. Calling behaviour a “tortious act“ states a legal conclusion about unlawfulness. If you want make conclusory statements about behaviour that Lori Drew hasn't been found liable for, well, you must like living dangerously....

Now if you just want to say that Lori Drew purposely done wrong, well that's a whole 'nother kettle of fish: Doing someone wrong on purpose is just plain ol' everyday talk.
11.26.2008 9:12pm
BlackX (mail):
As a layman—is that the right term for a non-lawyer in this context?—I don't understand how a contract between private parties is a federal matter.

A civil matter I would understand, but this seems way out of bounds in how I would expect, or hope, the law to work. Am I missing something obvious that would be in a Contracts class in L1?
11.26.2008 9:18pm
Anatid:
einhverfr, Brian S:

I was not trying to argue that Drew is morally responsible for Megan's death (which is a result of Megan's actions). She is, however, morally responsible for the level of distress she knowingly induced in Megan, particularly if she knew that Megan was struggling with depression.

If I'm being mean to you to manipulate your emotions, you can defeat my scheme utterly and effortlessly by the simple expedient of not giving a damn what I say. Or by not listening.

See, that's the problem. I can do that. You can do that. A depressed thirteen-year-old girl, however, probably can't.

Recent data from neuroscience suggest that the orbitofrontal cortex (the region of the brain implicated in social judgment and inhibition of socially inappropriate behavior, and presumably shame and embarrassment), which is smaller in children than in adults, may actually be more active in adolescents than in adults, making them extra-sensitive to the opinions of their peers.
11.26.2008 9:24pm
David Welker (www):
xyzzy,

Well, the jury thought it was very important who actually typed the messages to Megan. Maybe Ms. Drew had nothing to do with the intentional infliction of emotional distress in this case. I doubt it. The prosecutor's presumably thought otherwise.
11.26.2008 9:28pm
David Welker (www):

DW: Prior to the Lori Drew case, how do you think most intelligent Americans (or even most lawyers, intelligent or otherwise) would have responded to this statement, "You're using a fake name on MySpace, isn't that illegal?".


Well, I think you could say the same things about a lot of other crimes. Most people and most lawyers do not personally spend all that much time reading the Federal Criminal Code.

Still, even if most people do not actually read the code and do not know exactly what is a crime and what isn't, that does not change anything. It is enough notice that it is in the Federal Criminal Code. If you are going to engage in a course of outrageous, immoral, and evil conduct, you probably should, unlike most people, go ahead and read it to make sure your contemplated course of action does not in fact involve any crimes.
11.26.2008 9:35pm
whit:

Recent data from neuroscience suggest that the orbitofrontal cortex (the region of the brain implicated in social judgment and inhibition of socially inappropriate behavior, and presumably shame and embarrassment), which is smaller in children than in adults, may actually be more active in adolescents than in adults, making them extra-sensitive to the opinions of their peers.



that's kind of funny. recent data from neuroscience is letting us know that adolescents are more sensitive to peer pressure than adults?

really?

wow! :l



As a layman—is that the right term for a non-lawyer in this context?—I don't understand how a contract between private parties is a federal matter


i'm not a lawyer, and lord knows i'm not defending this law, but i think it is more likely justified as a sort of low grade computer trespass moreso than a contract thang.

iow, it is illegal to trespass on a person's computer. TOS violation is kind of like a low grade trespass where you are trampling around when you shouldn't be because you are there under "false pretenses" or in violation of their rules.

again, not that i am defending the logic of the law, but i see it that way
11.26.2008 9:36pm
Don de Drain:
I make my living dealing with the federal and state taxing authorities and, from time to time, the same US Attorney's office that is prosecuting the Drew case. Once in a while I have someone who works for one of these government agencies comment to me that my client is "scum." My standard response is that the question of whether my client is "scum" is irrelevant to the question of whether my client owes additional taxes or committed a tax crime. I state that the tax laws impose the same taxes on "scum" that are imposed on everyone else, not a penny more (or less). I tell them that, as soon as they are able to show me where the tax code imposes a "scum tax", I will be glad to talk further about whether my client is "scum".

So it is with Ms. Drew. I am sure that the vote would be close to unanimous that Ms. Drew is "scum", whatever that means. But that vote is simply of no relevance to answering the question of whether she committed a federal crime. I do not see how a crime was committed here. But that does not mean that I wish Drew well. I just don't think she committed a federal crime.

Of course, we know that, in the real world, any client that is perceived as "scum" has a greater chance of losing their case, whether criminal or civil. That's why the prosecutors sought to introduce much of the evidence they did in Drew's prosecution. And that's why we have a rule of evidence that allows a judge to exclude evidence that is unduly prejudicial. Judge Wu blew it big time by admitting some of that evidence. I concur with those who believe Judge Wu's evidentiary rulings will get reversed on appeal if the 9th Circuit ever addresses those rulings on appeal.
11.26.2008 9:41pm
OrinKerr:
David Welker,

I find your comments in violation of our comment policy, and I am therefore referring you to the FBI for prosecution for violating the Computer Fraud and Abuse Act. Please leave your name and address so the FBI can know where to arrest you for your crimes.

Best,
The Management
11.26.2008 9:41pm
David Welker (www):
Orin Kerr,

I know you used to work at the DOJ. I am still betting you can't convince any of your friends to prosecute!

If I am wrong, I might have First Amendment defense or something.

Maybe you think the law here is too broad. That is up to Congress to change if it so wishes. I am open to that argument. But, in the meantime, the law is what it is.
11.26.2008 9:52pm
Waldensian (mail):

I can't think of a more blatant due notice issue from this interpretation than that.

I keep reading this sentence, but I can't figure out what it means. Come again?
11.26.2008 9:54pm
Barry P. (mail):
BTW, I was just playing Devil's Advocate here today. Got a few days off work, and I'm bored. Thanks for the entertainment.
11.26.2008 10:28pm
David Welker (www):

BTW, I was just playing Devil's Advocate here today.


Proof that lawyers will represent anyone. Even the devil.
11.26.2008 10:44pm
OrinKerr:
David Welker,

Do you want to bet your freedom on my failure to find a prosecutor to charge you for your crime?

More seriously, you'll note that every former DOJ computer crime prosecutor who has spoken on the record about this case (which is many of them, actually) has completely rejected the theory that Drew is guilty. They uniformly take the view that Drew committed no crime. Notably, the U.S. Attorney's Office in Missouri agreed, declining prosecution in the case because no crime was committed.

If the law is what the law is, then Drew is innocent.
11.26.2008 10:54pm
whit:

Do you want to bet your freedom on my failure to find a prosecutor to charge you for your crime?



orin just needs to dress like a 13 yr old girl when he meets with the prosecutor. apparently, they engender enough sympathy to cause unwarranted charging.
11.26.2008 11:06pm
David Welker (www):
Orin Kerr,


Do you want to bet your freedom on my failure to find a prosecutor to charge you for your crime?


I am a gambling man!


If the law is what the law is, then Drew is innocent.


Well, if a court so rules, I am perfectly willing to accept that. Especially in light of the combined expertise of all your friends, who certainly know way more about computer crime law than I do. The prosecution in this case apparently had a different view of the law. I hope their view of the law is reasonable (something I would not be equipped to assess without doing the research) and honestly held, and I am going to give them the benefit of the doubt and assume it is.

And you know what, I am not going to put you in an awkward position by asking your opinion on that question. (Unless you want to share, of course.)
11.26.2008 11:08pm
OrinKerr:
David Welker.

I assume you are new to this issue? I wrote a law review article in 2003 predicting that someday the government might try such a baseless theory and explaining why it is wrong. The reaction I got from prosecutor friends at the time was that no prosecutor would ever try such a theory, as it was obviously wrong. I responded to them that someday some prosecutor might try it anyway.

You can read the article here.
11.26.2008 11:54pm
David Welker (www):
It was probably your article that gave them the idea! I blame you. =)

In the meantime, I will read your article.
11.27.2008 12:09am
winstontwo (mail):

More seriously, you'll note that every former DOJ computer crime prosecutor who has spoken on the record about this case (which is many of them, actually) has completely rejected the theory that Drew is guilty. They uniformly take the view that Drew committed no crime. Notably, the U.S. Attorney's Office in Missouri agreed, declining prosecution in the case because no crime was committed.

If the law is what the law is, then Drew is innocent.

Gee, I did not know that guilt or innocence was determined by a poll of former DOJ prosecutors.

Your elitist contempt for the jury system is just stunning.
11.27.2008 12:21am
einhverfr (mail) (www):

As far as the rule of law point, I do not think there are any real notice problems here. Clearly, Drew violated the law. Now, it is true that most people who violate TOS agreements in much less despicable ways do not have the federal government prosecute them.


Sure there are. The EFF outlines them in their amicus brief.

For example MySpace reserves the right to change the terms of service without notice to the users. That seems to me to be a due notice problem right there-- you can't be sure you are not violating the terms of service unless the only thing you do on the site is read the terms of service over and over.

Secondly consider Google's Terms of Service. Read them? Do you know where to find them without doing a Google search?

How about Match.com's terms of service which govern access to their web site and prohibit certain classes of people from accessing the site? (hint-- if you are married and you read the terms of service, you have already violated the terms of service)

So the notice issues with criminalizing terms of service violations go well beyond whether it is in the federal code. The terms themselves need to be accessible and notice provided on changes which is clearly not a common practice.

How many 17 year-olds do you know that understand that their use of Google violates that site's terms of service?
11.27.2008 12:38am
einhverfr (mail) (www):
BrianP:

I want to thank you for playing devil's advocate. I think that you have done a good job of elucidating a position that too many people hold and hence arguing against you has been quite productive.

JMHO.....
11.27.2008 12:46am
Ex-Fed (mail) (www):
I looked on PACER this afternoon. It does not yet have the jury instructions the judge actually gave -- only the proposed instructions from the government and the defense. (In CDCA, the final instructions the judge gives are typically filed and entered on the docket).

Orin, have you seen them, or a transcript? I'd be interested in knowing how closely Judge Wu kept to the government's proposed instructions. I was interested to see that the government's proposed instructions included, as an element of the misdemeanor counts, that the intrusion was in furtherance of a tort. I was under the impression that one of the infirmities of the government's theory was that it required no such intent. Am I misunderstanding that? It's possible, folks say I am kind of slow.
11.27.2008 12:50am
Fub:
whit wrote at 11.26.2008 11:06pm:
orin just needs to dress like a 13 yr old girl when he meets with the prosecutor. apparently, they engender enough sympathy to cause unwarranted charging.
JPEGs! JPEGs!
11.27.2008 12:51am
SupremacyClaus (mail) (www):
Should Ian Fleming be tried for the extra-judicial executions of his fictional character, James Bond? Drew was the author. The sixteen year old boy was a fictional character.
11.27.2008 2:06am
Obvious (mail):
In the NYT: "Mr. O'Brien, who tried the case himself with the firepower of two subordinates, said he was pleased with the verdict. "The overwhelming message," he said, "is if you are going to attempt to annoy or go after a little girl and you're going to use the Internet to do so, this office and others across the country will hold you responsible."

Is Mr. O'Brien of the opinion that no crime would have been committed had Drew used the public mails instead of the Internet? IANAL, so maybe there are already laws against so using the public mails. How about if Drew just slipped messages on paper under Megan's front door? How bizarre that one's loss of liberty would hinge on HOW one delivered an upsetting message.
11.27.2008 2:17am
Nick056:
Lori Drew is an evil human being. Meier's suicide ought to have been in Drew's mind, given what Drew knew about Meier, a reasonable and even probable outcome of the torment to which Drew subjected her. The woman is likely to have e-mailed a deeply depressed girl that the world would be a better place without her in it. When I read about this case years ago, I judged her revolting and deserving of a great deal of punishment.

And that, really, is the problem. Everybody thinks that. In a moral sense, how far removed is she from having killed this girl? The whole operation sounded like a kind of torture. Drew helped torture a girl to death.

What does that have to do with the federal government backing every TOS on the Net? Nothing. Yeah, a prosecutor with a different set of facts could choose not to rely on the precedent here -- but they would make that choice in the knowledge that the precedent here is manifestly bogus, nonsensical, and arrived at just so that humane people could deliver a humane punishment to a vile woman.

That's just not how we arrive at laws. The only reason she was convicted was, everybody felt like I did about this woman when they heard the facts: she needed punishment. And she does. But not by inventing this law.
11.27.2008 2:20am
Obvious (mail):
As a physician, I am stunned by how much people are willing to presume a neighbor should know about the mental health and stability of another neighbor's teenager. Most teenagers have torment in their lives, some more striking than nasty email. The vast majority don't commit suicide. The vast majority of teenage girls who write "You're the kind of guy a girl would kill herself over" do NOT commit suicide.

Frequently professionals get it wrong, but Lori Drew should lose her liberty because it was OBVIOUS in the minds of many here that what any of us would not pay any attention to if sent to us in an email would CLEARLY drive this teenage girl to suicide, and successful suicide at that.

Stunning. Stupid. Dangerous. Wrong. Those words apply to Drew, but also to her critics.
11.27.2008 3:30am
whit:
good points. fwiw, men (and boys) commit suicide far more often than women and girls. women and girls "attempt" far more often than men. how many times do medics/cops go to "suicide attempts" by teenage girls involving 10 aspirin and a wine cooler, or hesitation marks on the wrist with a butter knife.

there's probably not a teenage girl alive who doesn't say at some point "i'm going to kill myself because...". relatively few actually do it.

one word: DRAMA

like i said, i could see an argument for some sort of intentional infliction of emotional distress lawsuit, but I'M A LIBERTARIAN and generally speaking, people who commit suicide do it of their own volition, 13 yrs old or not. we don't always find a "bad guy" to blame the dead person on.
11.27.2008 3:35am
David Welker (www):
Hey whit,

If you are so into "personal responsibility" why not take responsibility for the impact your actions have on the emotional well-being of others?

What do you think of the cases where someone has committed suicide after being "egged on" by strangers over the internet. Like this case.

My view, your not really that "into" personal responsibility if you think it is okay to take no responsibility about how your words and actions affect the emotional well-being of others. That is not okay.

Your idea of "volition" is also WAY overblown. You act as if people live in some sort of bubble and their decisions are disconnected from their relations with others.

Maybe this is true for you. Maybe you really are disconnected from others. But, this is not true for most people, and this idiosyncratic difference that you have with the majority of the population is obviously no basis for making policy. Policy should reflect the reality of most people, not exceptions like yourself. Our volitional decisions are influenced by those who we are around, how they treat us, our relationships with them, and how they try to influence us. This is obviously especially true of adolescents, who are especially susceptible to peer pressure.

Now, maybe we punish people anyway when they make dumb decisions. In most circumstances, we don't say, that the influence of others excuses bad behavior X, Y, and Z. That is personal responsibility. To be punished for our own behavior despite outside influences is actually empowering. It empowers you to declare independence from those outside influences, knowing that you will have to either enjoy or suffer the consequences of your own decisions.

The bottom-line is this. If you truly believe in personal responsibility (which I tend to doubt, given the excuses for bad behavior you have made so far), you hold people who have a toxic influence in the lives of others accountable too. Your conception of "personal responsibility" is deeply flawed to the extent that just because X is to be held accountable, that doesn't mean that Y, the toxic influence, should not also be held accountable.

See, personal responsibility is not a scarce resource. There is enough for everyone. That X made what you call a "volitional" decision to commit suicide (and I think that is probably not a very important perspective on suicide compared to other perspectives) that emphatically does not mean that Y should not be held accountable if Y "egged" X on. Even if X's decision was "volitional," Y, the toxic influence, really is still a bad guy. Something you seem to deny here ("we don't always find a 'bad guy'")

A final point. I am not sure what you think the significance of the word "DRAMA" is. If you could elaborate further on this, I would be interested. Is this word your way of trying to shift all blame from Y, the adult, to X the 13-year old emotionally unstable girl?

You know what, maybe the girl is to "blame" for her "volitional" decision. But, you know one thing that is really nice about blame aka "accountability" aka "personal responsibility" is that it doesn't need to be shifted. There is plenty to go around! Personal responsibility is an unlimited resource that can be tapped into over and over again to hold more and more people accountable for the impact of their actions on others. Oh yes indeed. You can assign all the blame you want to a 13-year old emotionally unstable adolescent, but that doesn't mean there isn't enough "personal responsibility" left for others. You don't have to treat personal responsibility as such a scare resource such that if it is "shifted" to the 13-year old there is not enough and as good left for others. There is plenty where that came from! I say this as a true believer in personal responsibility, not as someone inclined to let people off the hook (i.e. "we don't always need to find a 'bad guy' to blame")

You know what, this reminds me of the story you told earlier about the 14-year old girl and the two 30-year old men. I guess, unfortunately, their actions were legal in Hawaii at the time. But you know what. They deserve to be shot. Even if the 14-year old's actions were "volitional" these men were nothing more than predators. These predators deserve to be punished very harshly, even though I would be the first to agree that it is beyond the power of the state to do so if they did not violate any laws. Like I said, I believe in personal responsibility. My question is this. Do you?
11.27.2008 7:55am
jukeboxgrad (mail):
einhverfr:

I want to thank you [Barry P.] for playing devil's advocate. I think that you have done a good job of elucidating a position that too many people hold and hence arguing against you has been quite productive.


I want to thank you for saying this, because I think you've done a good job of summarizing what makes this thread interesting and important.

I hate lawyers as much as the next guy, but I also realize that our system depends on the principle that unpopular people (and bad people) are entitled to a vigorous defense. I'm grateful to the lawyers who stick their necks out to embody that principle.

Unfortunately it's not hard to find examples of people working to undermine that principle (like here and here).

(einhverfr, a minor correction. You've been saying "BrianP." You mean to say Barry P. There is no "BrianP" in this thread. There is a Barry P. who said "I was just playing Devil's Advocate here today." And there is a Brian S who is on the same side of the argument as you. This confusion could obviously be avoided if the VC TOS prohibited the names Barry and Brian.)
11.27.2008 9:11am
jukeboxgrad (mail):
obvious:

Is Mr. O'Brien of the opinion that no crime would have been committed had Drew used the public mails instead of the Internet? IANAL, so maybe there are already laws against so using the public mails. How about if Drew just slipped messages on paper under Megan's front door? How bizarre that one's loss of liberty would hinge on HOW one delivered an upsetting message.


I think this is a really good question, and I haven't seen it asked before (although I haven't read all the other Drew threads). I hope someone will try to answer it.
11.27.2008 9:17am
jukeboxgrad (mail):
And it's not just that unpopular people (and bad people) are entitled to a vigorous defense. It's that the law must never be used to punish people for being unpopular and/or bad. It must only be used to punish people for breaking the law.
11.27.2008 9:21am
OrinKerr:
Winstontwo,

In an earlier thread, you argued that I was an apologist for lawlessless by not taking every opportunity to object as strongly as possible to the Bush Administrtaion's violations of the law and expansions of government power on principle:
Put simply: when your government is engaging in a wholesale unlawful torture of citizens and non-citizens, abridgement of fundamental rights, and so forth and you don't at least denounce those activities at every opportunity you have - you are an APOLOGIST.
Now, in the Lori Drew case, I am taking on the Bush Administration and fighting their lawless theory that would give the government the power to pick up and lock away anyone in the country who uses the Internet. I am working pro bono to protect civil liberties in this country against the Bush Administration's claim of extraordinary power that every former DOJ computer crime prosecutor has rejected. And yet now your response is to defend DOJ, dismiss the views of career DOJ lawyers who oppose the prosecution, and instead criticize those of us who are taking it on:
Gee, I did not know that guilt or innocence was determined by a poll of former DOJ prosecutors.

Your elitist contempt for the jury system is just stunning.
Winstontwo, I suppose the obvious question is, when did you decide to become an apologist for the Bush Administration's lawlessness? And why?
11.27.2008 11:15am
einhverfr (mail) (www):
Jukeboxgrad: Yes, I meant BarryP.

BTW, I am not a lawyer. I am a software engineer, but I seem to count a number of very principled lawyers among my relatives. The real thing is we have to be rightly outraged by unprincipled lawyers.

However, unprincipled people in any profession are a problem. Unfortunately my horror stories regarding unprincipled software engineers are somewhat off-topic for this thread, so I will just say the damage they cause is less visible.
11.27.2008 12:37pm
einhverfr (mail) (www):
David Welker wrote:

If you are so into "personal responsibility" why not take responsibility for the impact your actions have on the emotional well-being of others?


This may seem like a nit-pick but I think it is at the core of the issue. There is a significant difference between taking responsibility for the impact one's actions have on the emotional well-being of others and taking responsibility for the destructive choices which follow. I agree with the former, but I am not sure I generally agree with the latter. After all, I don't really want every bad decision I have ever made to be someone else's fault.

Being responsible for being cruel is different from being responsible for someone committing suicide in response to that cruelty. Even if one says one is responsible for some small part in the resulting tragedy I might or might not agree depending on circumstances. However I am hard-pressed to imagine a case where I would hold someone fully responsible for someone else's suicide.


What do you think of the cases where someone has committed suicide after being "egged on" by strangers over the internet. Like this case.


Do you really think that it only happened because the individual was egged on? What other factors went into it?


The bottom-line is this. If you truly believe in personal responsibility (which I tend to doubt, given the excuses for bad behavior you have made so far), you hold people who have a toxic influence in the lives of others accountable too. Your conception of "personal responsibility" is deeply flawed to the extent that just because X is to be held accountable, that doesn't mean that Y, the toxic influence, should not also be held accountable.



Ok, let's move this to another level. My aunt (a public defender) once defended someone who was on trial for armed robbery. Of course he claimed it was someone else's fault and that he committed armed robbery in self defence. Before you laugh, your theory of personal responsibility would probably have backed his claim. His girlfriend was pregnant and her father apparently threatened to kill him if he didn't pay for an abortion. So since he didn't have money, he committed armed robbery to secure it. Under your theory of personal responsibility, the guy isn't responsible for the crime he committed-- his girlfriend's father is the one who should be on trial not only for the threat but also for the resulting crime since the perpetrator's action was conditioned by the communications he received from his girlfriend's father. But I don't I don't think anyone really believes that, despite the fact that a verbal threat to kill someone is likely to be far more psychologically traumatic (and hence more toxic) than a message that reads "the world is better off without you."

Such a view undermines real personal responsibility and the only way to get to a point where one holds people really accountable is to hold everyone responsible for every word one says in every way as well as every type of private contact (for example, who one marries). Who is responsible for making these judgements? These questions lead us inevitably back to Plato's vision in Republic-- a vision which was clearly the template for Khomeni's Iran but even then fell short in terms of governmental influence and lack of personal liberty.

We need to draw the line at actions. Suicide is an action, therefore the responsibility lies with the actor. Cruelty is a category of actions, so responsibility for this lies with the actor.
11.27.2008 1:06pm
einhverfr (mail) (www):
Winstontwo wrote:

Gee, I did not know that guilt or innocence was determined by a poll of former DOJ prosecutors.


I may be getting this wrong, since IANAL, but I thought the key question was whether what Drew did was a violation of law. As a matter of law, that is not a matter where the jury is authoritative. Asking legal professionals what they think the law is, especially those who are likely to want to expansively interpret tlese laws more than the defence ought to give some sense of how judges are likely to rule on appeal.

Are you saying judges should never throw out convictions based on what the juries decide? WHat about cases like Yates v. United States, where the jury convicted people of conspiring to overthrow the government but the appellate court determined that what they were accused of doing was not a crime?
11.27.2008 1:16pm
einhverfr (mail) (www):
Correction on Yates v. US. It was the US Supreme Court which remanded and instructed a verdict of acquittal.

The decision was made that instructing people that there was a moral duty in the abstract to overthrow the US Government was protected speech under the first amendment, so the Smith Act had to be interpreted as encouraging specific actions, not mere beliefs.
11.27.2008 1:22pm
Harry Lewis (mail) (www):
Christopher Hitchens quoting Tom Paine:
"[Paine] argued that 'an avidity to punish is always dangerous to liberty' because it can accustom a nation 'to stretch, to misinterpret, and to mis-apply even the best of laws. … He that would make his own liberty secure must guard even his own enemy from repression; for if he violates this duty he establishes a precedent that will reach to himself.'"
11.27.2008 1:24pm
whit:
david... what ein said.

just as human beings naturally try to find patterns and order where there is none, we also naturally looks to seek causes for effects, and people to blame when bad stuff happens.

i don't think you get it. lori drew sucks. morally, she sucks. but she isn't a CRIMINAL. similarly, the two 30 yr old guys suck. but they aren't criminals. do you grok the difference.

a big part of this has to do with infantilizing (is that a word) this 13 yr old girl. she still has free will, and accountability for her actions.

believe it or not,i know a fair bit about suicidal and parasuicidal behavior, both from job experience and graduate school in counseling psychology. my experience, education, etc. inform my opinion.

ultimatehly, i'm a libertarian. people are responsible for their actions.

ozzy osbourne isn't responsible for teen suicide btw.

lori drew, and the two 30 yr old men both SUCK. but they aren't CRIMINALS. do you get the distinction?

you are dealing with this emotionally, not logically. you see a dead 13 yr old girl, who probably never harmed a fly and thus... you want justice/revenge/somebody to blame.

understandable.

but irrelevant to the legal issues.

and of course cases like this make bad law, and i am sure we will see (if we haven't already) a spate of "cyber bullying" laws to make people feel better.
read again what ein says. he says it eloquently.

my views may sound sympathyless and cruel, but they are not. i don't want to see anybody kill themself, and i have personally seen somebody draw a gun and blow themself away while i stood about 5 feet from them. it sucks. but there is not always a criminal to blame. in fact, usually there isn't.
11.27.2008 1:37pm
Ex-Fed (mail) (www):
Is Mr. O'Brien of the opinion that no crime would have been committed had Drew used the public mails instead of the Internet? IANAL, so maybe there are already laws against so using the public mails. How about if Drew just slipped messages on paper under Megan's front door? How bizarre that one's loss of liberty would hinge on HOW one delivered an upsetting message.

It's possible that O'Brien would have found a federal hook to hang the prosecution on, though I can't think of one immediately. Mail fraud requires a scheme to deprive someone of property or (in some cases) the intangible right of honest public service. But is there some statute out there? Possibly. Federal criminal law is now breathtakingly broad, and if you are a prosecutor who is willing to extend it well past legislative intent, nearly anything is possible.
11.27.2008 2:13pm
ReaderY:
There ought to be a good business in creating web sites that are likely to be accessed, putting terms of service requiring payment of, say, $1000, snooping personal information to identify accessor info, and then sending nastigrams demanding payment or slse.

Heck, it doesn't matter if the feds really will prosecute anyone you refer to them. The question is how plausible can you make the nastigram. All those Nigerians can't be completely wrong. Someone will have to eventually fall for it and pay up. And as long as one has a plausible legal case, it would seem a completely legal business.
11.27.2008 2:33pm
einhverfr (mail) (www):

It's possible that O'Brien would have found a federal hook to hang the prosecution on, though I can't think of one immediately.


Wouldn't O'Brian run into jurisdiction issues if the message was delivered by some means that didn't run through his district?
11.27.2008 2:46pm
Guest102:
With regard to this case that seems to stipulate that creating an account with a pseudonym is a criminally prosecutable violation of the Terms of Service for any site, I have a few questions:

Is maliciousness or intent to violate a law an element of the offense;

Is this the internet equivalent of trespassing or providing a false name;

Is it commonplace that a citizen be criminally prosecuted for giving a false name to a commercial business in a civil contract if they do not commit fraud or benefit financially;

If the victim of the trespass is the provider, don't they need to swear out the complaint and doesn't this preclude the government from acting without the consent of the provider;

Most violations of trespassing are only prosecutable if the violator has positive notice that his actions are criminal. Towards that, a first warning to leave is generally required before an arrest is made, even if the property is posted, with many jurisdictions requiring a written warning;

If the ToS contract stipulates the conditions for use and they stipulate that the remedy for violation is the potential for cancellation, but nothing else, isn't that the extent of the actions they are limited to for the violation;

If criminal sanctions are a consequence, shouldn't that be clearly stated in the ToS, i.e. a trespass (unauthorized access) warning and the relevant federal statutes, i.e. full disclosure. If not, isn't a cease and desist remedy necessary prior to prosecution;

As a provider, isn't there some responsibility on their part to be aware of the relevant federal statutes and identify them in the ToS, or even provide a link;

If the provider allows access to their services without some affirmative attempt to request proof of valid identity and eligibility, doesn't that make them, at some level, vicariously liable for the access to that system. Somebody protecting a computer or server certainly wouldn't allow casual access without proof of identity and need;

In approving wholesale access to sites without requiring proof of identity or by stipulating civil remedies as the only recourse in the contract, aren't the providers failing to exercise due care bordering on entrapment;

I am unaware that a civil ToS violation, in and of itself, has ever been considered a criminal offense. Criminal intent and malicious behavior are usually elements of a crime;

Is it a defense to prosecution that your intent is to create an account to access a site where you are afraid disclosing your true identity might subject you to activity such as stalking, identity theft, harassment, or other such threatening behavior (like Myspace);

The vagueness of the statute and the ability to apply it to applications that were apparently never the intent of the Congress is deeply troubling. Laws cannot be vague and malleable if the ultimate outcome is the deprivation of life or liberty. One MUST be aware of the criminal consequences of an act if they are to be held criminally accountable.

On the net, every discussion on this issue seems to devolve into an emotional discussion of the behavior of Drew. It loses sight of the dangerous application of a law in a manner destined to open the floodgates to criminalizing what amounts to bad judgment. Drew's behavior is reprehensible, but should that justify the wholesale criminalization of a large segment of our society with no prior notice the behavior is illegal and not contractual?

I worry where this will end. If I loan my Costco card to my neighbor in violation of the ToS and in utilizing it Costco's becomes aware, will they have him arrested? Will they indict me? Are we guilty of a criminal conspiracy to defraud Costco's? (I don't have a Costco's card BTW and have no idea what their ToS states) At what level does an offense escalate to imprisonment? Isn't the intent of law to mete justice commensurate to the offense?

I agree that not reading the ToS is no defense if you state you did by clicking on yes. It is presumptive. It is also presumptive that the contract is complete, to include clear violations and penalties with no surprises. To create law in the manner in which this case has done smacks of Ex Post Facto. How many hundreds of thousands of people, or more, are now criminals awaiting discovery and prosecution? How many are in violation and have been for years believing that termination of the account was the only mutually agreed upon contractual remedy? That's one helluva Sword of Damocles.

Or am I just completely clueless?
11.27.2008 2:59pm
ReaderY:
If an internet service provider is free to set the terms and change them at will with the user having no recourse, and any violation is crime punishable by imprisonment, then welcome debtor's prison.

The internet becomes the new realsm and its lords the lords of the new manors. Good-bye capitalism and freely contracted agreements with equal rights of recourse for both sides. Welcome feudal system and serfdom with the new lords of the manor having all the power. New technology, same system. The lord of of then manner may be giving you internet access instead of land and protection, but you still have to do whatever the lord damn well wants in return, and if you don't like it you still have no rights. And the unwary can be trapped into serfdom as easily in the old system.
11.27.2008 3:29pm
whit:
something else i have been thinking of.

assume that the victim in this case was a 13 yr old boy and not a 13 yr old girl, that lori drew et al masqueraded as a young girl instead of a young boy, etc. iow, just change the genders of the victim and the (fictional) counterpart created by drew.

i wonder if people would be as sympathetic. people just see 13 yr old girl and it's VICTIM VICTIM VICTIM.

is there some latent sexism here? iow, a 13 yr old girl is so prone to be manipulated etc. in matters of romance vs. a boy?

it's an interesting question. frankly, i'm not quite sure if meier's gender plays a part in our sympathy for her. i would hope not. iow, i would hope that the fact that she is seen as such a helpless victim here is not due , in part at least, to her gender, as well as her age.
11.27.2008 3:40pm
einhverfr (mail) (www):
Guest102, I am not a lawyer but some of your questions seem to have answers in this verdict. Lawyers may correct me on these, and of course the whole thing might (and I hope will) be clarified and/or reversed on appeal.

I am also omitting any questions I don't have answers for.


Is maliciousness or intent to violate a law an element of the offense;


Yes, but only for first-time violators. The prosecution's theory was that furtherance of a tort or other unlawful action would affect sentencing. Note that 18 USC 1030(c)(2)(C) affects repeat violators and makes no provisions for intent however.

Also note that this affects the severity of the crime only. Drew was not convicted of the more serious offences which would have required a more serious intent.


Is this the internet equivalent of trespassing or providing a false name;


Orin Kerr's article discusses the difficulties in applying trespassing law to this sort of thing, but it is clear that the analogy to trespassing is present in this law, though it has generally applied only to cases where either someone broke into a system (equivalent of breaking and entering) or was given proper notice not to use the system.


I am unaware that a civil ToS violation, in and of itself, has ever been considered a criminal offense. Criminal intent and malicious behavior are usually elements of a crime;


I understand that this is the first such case, which is one reason why Kerr is deeply involved. I trust Kerr will correct me if I am wrong.

However, there have been cases where the same law has been used in a civil setting to apply to terms of service violations. However, these are fundamentally different than the current case for a number of reasons:

1) They were civil rather than criminal and
2) Usually there had been strong warnings provided to the offender that his/her behavior was unacceptable and only when the behavior continued was action taken.


Drew's behavior is reprehensible, but should that justify the wholesale criminalization of a large segment of our society with no prior notice the behavior is illegal and not contractual?


That is what concerns a large number of us here. I think the correct answer is no. However, if you see some of the posts above advocating locking some people up on "general principles," this is by no means a consensus viewpoint. :-(


If the provider allows access to their services without some affirmative attempt to request proof of valid identity and eligibility, doesn't that make them, at some level, vicariously liable for the access to that system. Somebody protecting a computer or server certainly wouldn't allow casual access without proof of identity and need;


That is what Authentication-Authorization-Auditing (AAA) systems are supposed to do, at least regarding private networks. I.e. you go to work, log in, and this is seen as proof of your identity. It becomes more difficult when offering public services. There is good reason to argue that 18 USC 1030 was designed to punish people who circumvent these sorts of systems, not those who merely continue to use a publicly offered service in violation of an adherence contract.

However, there are a number of problems here that I don't expect courts to go into in the areas raised by your question. For example, I don't foresee the court mandating effectiveness standards for identity confirmation in order for this law to apply any more than I foresee them ruling that using stupid elementary cyphers and then claiming DMCA backing....


I agree that not reading the ToS is no defense if you state you did by clicking on yes. It is presumptive. It is also presumptive that the contract is complete, to include clear violations and penalties with no surprises.


Sure. However, in this case also note that not reading the terms of service and not saying you agreed to them is no defence either, since MySpace reserves the right to change their terms of service without notice. The idea is that you do something you did not have authorization to do, not that you violated a contract.

BTW, after carefully considering the matter, I can foresee cases where repeated violation of terms of service following cease and desist letters might rise to the level of a violation of 18 USC 1030. For example, suppose your email transport agent has an undocumented feature which allows people to use it as an open relay (Really old versions of Sendmail for example had this "feature"). You contact people who do and tell them to stop but they continue to do so. I would think that this would be a case where 18 USC 1030 might well apply even if the manufacturer of the software might eventually confess to placing in such a back door. However in these cases, there ought to be additional notice requirements, similar to what there are in most jurisdictions regarding trespassing. Otherwise it seems to me that there are no meaningful due process guarantees.
11.27.2008 3:47pm
David Welker (www):

Under your theory of personal responsibility, the guy isn't responsible for the crime he committed-- his girlfriend's father is the one who should be on trial not only for the threat but also for the resulting crime since the perpetrator's action was conditioned by the communications he received from his girlfriend's father.


I suppose you did not read very carefully. I already addressed this. I said we should hold people accountable. As I said, personal responsibility is not a scarce resource. There is enough for everybody. Of course, the guy is responsible for his crime. And the father is responsible for making inappropriate threats. They both contributed to the negative outcome (although I am not usually in favor of formally punishing people for negative outcomes of their actions that are very unforeseeable).

If someone does make a credible threat on the life of another (and I am not sure what the facts are here), I would say they definitely contributed to the problem.

Now, of course, to what extent we take people who contribute to problems and hold them accountable formally in the legal system is another issue. For that, we do not want the chain of causation to become too thin. Nor do we want usually want to hold people formally accountable for chains of causation that are not foreseeable.

Formal punishment aside, people need to take full responsibility for their words and actions. To me, whit was using rhetoric that suggested otherwise. (We don't always need to find a 'bad guy.') It sounded as though the fact that someone takes a volitional action somehow lessens the responsibility of other actors. I do not think that at all.

Now, it is clear that whit has clarified that in this case, he is not necessarily saying that someone who does something like this is a "bad guy," only that in his opinion they should not be formally punished.
11.27.2008 4:02pm
einhverfr (mail) (www):
David Welker wrote:


As I said, personal responsibility is not a scarce resource.


It may well be that we are defining responsibility differently.

If I say someone is responsible for a specific outcome, that is usually an exclusive arrangement, and and the person will be held accountable for such an outcome. If someone is partially responsible, that may not be, but the responsibility is diminished accordingly.

Now, let's look at something else:

The key messages at issue were sent by Ms Grills, not Lori Drew. As far as I can tell, nobody is saying at this point that Lori told Megan that the world would be better off without her. So any real torture came from other teenage girls, not from the adult, who was apparently unaware of some of the real harsh things that went on.

Based on the facts that seem everyone seems to agree on, Lori is responsible for:

Facilitating and providing moral and material support for her daughter's abstract goal of revenge on Megan Meiers. I would argue that this makes her a bad mother and someone who missed an important opportunity to help her daughter deal with a difficult interpersonal issue. Her daughter and Ms Grills were the ones who, according to the main testimony in the trial instigated and orchestrated a campaign of cruelty (which is unfortunately all too common among teenage girls).

So I am not convinced the outcome was foreseeable by Lori. However, at the same time, her responsibilities as a mother to her own daughter were neglected and as a result her daughter and co-conspirator did something pretty bad. This still means I think she is scum (because people generally do try to encourage their children to take the same moral directions as themselves), but the responsibilities must be limited to actions only.
11.27.2008 4:21pm
David Welker (www):
whit,

I am not sure if we disagree or not. I certainly agree with much of what you say. But, we might still have a few more disagreements that I think are interesting.


a big part of this has to do with infantilizing (is that a word) this 13 yr old girl. she still has free will, and accountability for her actions.


Your rhetoric suggests that if X is held responsible (we hold the the 13 year old girl responsible) we have to hold Y less responsible. I don't think is true. I think we can hold both X and Y fully responsible. That basic idea is really the point I am making.

Now, in general, I would not hold the Ys of the world who "egg on" the Xs of the world to commit suicide fully responsible. In most cases, I do not think that charges of manslaughter or anything of the sort is appropriate. But, the reason I think that doesn't have anything to do with how much blame we either do or do not heap onto X for the suicide. It has to do with issues of foreseeability and issues of causation. Let us say that X is not very blameworthy for the suicide - X was very uncontrollably mentally disturbed - or let us say that X is very blameworthy for the suicide - X is committing the act to hurt someone else. The blame we heap on X for the act, except to the extent that X's actions are related to the issues of foreseeability and causation, has no bearing on how blameworthy Y is.

In either case, Y might be very blameworthy, or not very much at all.

Let us say that X is less blameworthy. X is uncontrollably mentally unstable. Y would be more blameworthy if he knew that X was mentally unstable and it was more foreseeable that X would act in response to Y's efforts to "egg on" X. In contrast, Y would be less blameworthy if Y knew nothing about X's history and reasonably thought Y was acting or joking.

Let us say that X is more blameworthy. X is more mentally stable (keeping in mind that suicide itself is a sign of mental instability), but wants to commit suicide to emotionally harm someone else, perhaps in revenge. Y would be more blameworthy if Y knew that X was credible in his plans, and encourages him, suggesting that suicide was the perfect way to get revenge. In contrast, Y would be less blameworthy if, again, he reasonably thought X was just letting off steam and completely not serious.

So, that is how I see it. Personal responsibility or blame is not necessarily a scarce resource. In general (1) it is possible that both X and Y are to blame to a high degree, or (2) X is to blame to a high degree and not Y, or (3) Y is to blame to a high degree but not X, or (4) neither is to blame to a high degree. And in general, you have to look to the issues of foreseeability and causation and assess the actions of X and Y individually.

That we hold X accountable does not mean that we are not also holding Y accountable. Right?

If we hold Y accountable for "egging on" a suicide, that doesn't mean that we are letting X off the hook. You seem to suggest as much (and perhaps I am just interpreting you incorrectly) when you say that holding Y accountable is to "infantilize" X. No, that isn't true! It is not only the case that there is only one person to blame, or that the blaming of X either increases or decreases the blaming of Y or vice-versa. These have to be assessed independently.


but there is not always a criminal to blame. in fact, usually there isn't.


I certainly agree with this as a general matter. The relevance of this general point when it comes to assessing particular situations is rather low, however.
11.27.2008 4:39pm
David Welker (www):

If someone is partially responsible, that may not be, but the responsibility is diminished accordingly.


Not necessarily true. In fact, that people think this is true is a major flaw in thinking and it leads people to toss "blame" around like a hot potato, as if you can get out of hot water by pointing out the "guilt" of the other guy.

Imagine the following scenario. Two terrorists, A and B plan to meet at a particular time in a crowded public areas and kill as many people as possible. A owns a gun, but doesn't have access to the rare ammunition it needs. Without B, he cannot kill anyone. B owns ammunition, but doesn't have a gun. Without A, he cannot kill anyone.

Imagine the following result. A goes to the public place in question and shoots as many people as possible using ammunition provided by B. In both cases, it might be correct to say that both are "partially responsible" for the terrorist act. But, that does not mean that they are less blameworthy because they are only "partially responsible." That A is really bad for pulling the trigger and bringing the gun does not mean that B is any less bad for bringing the ammunition.
11.27.2008 4:54pm
David Welker (www):

but the responsibilities must be limited to actions only


Limiting responsibilities to actions only does not make sense. If something is foreseeable and easily preventable, then your failure to act is a choice. A choice with consequences.

I think the reason that it sometimes seems like it makes sense to hold people less responsible for inaction is because the consequences of inaction usually are less foreseeable than the consequences of action. But, in some cases, the consequences of inaction are quite foreseeable.

If you are in the driver's seat of your car driving along and you decide not to swerve and not to brake and in fact not to do anything at all when you see children playing in the street because you have a definite preference to see those children dead, that is a choice with consequences for which you should be held accountable. The issue is not one of action versus inaction, the issue is one of foreseeability and causation.
11.27.2008 5:03pm
einhverfr (mail) (www):
David Welker:

In the case you mention, the two terrorists are conspiring to kill someone. This isn't a case of careless words or something nebulous like being psychologically toxic. There is a clear intent and cooperation there in furtherance of a criminal act. Both intend to cause harm and undertake actions furthering that plan.

The point I am making is that saying "the world is better off without you" to someone is the same *regardless* whether the person commits suicide. Cruel behavior is not suddenly worse on a moral level just because of a tragic outcome.
11.27.2008 5:07pm
CJChval (mail) (www):
I'm fascinated by the ongoing philosophical debate here, but I'm also wondering what impact the verdict will have on Internet behavior and practices. Will the verdict change the way you participate in social media? Will it change the way attorneys counsel clients? http://craigchval.wordpress.com/
11.27.2008 5:18pm
David Welker (www):
einhverfr,


The point I am making is that saying "the world is better off without you" to someone is the same *regardless* whether the person commits suicide.


Here is my thinking. It is much worse to say "the world is better of without you" to someone you have reason to know is mentally unstable and depressed than to say this to your best friend in a joking manner. So, obviously, the context in which you say these words matters.

And, I also think that foreseeability, judged from an ex ante not ex post perspective, with which someone would take drastic action in response to your words critically matters when judging blameworthiness.

I do think there is a problem of ex post bias leading us to assess the ex ante probabilities differently. When X actually happens, we might think that X is more foreseeable than it actually was.

Overall, I am not sure whether we disagree or not. But it is my position that the context in which the words are uttered matters tremendously. If you have reason to think that someone might commit suicide in response to your words, you are much more blameworthy than if you have no reason to think that whatsoever.
11.27.2008 5:21pm
killercop (mail) (www):
I just "outlawed" all U.S. Attorneys, et al, to our domain in our Terms Of Service. What's good for the goose is good for the gander.
11.27.2008 5:43pm
whit:

If something is foreseeable and easily preventable, then your failure to act is a choice. A choice with consequences.


but generally speaking, no LEGAL consequences.

if i (as a civilian) were to see a guy lying on the sidewalk on a deserted street, bleeding out from a stab wound, and the guy says "call 911 please. i'm dying", i am under no LEGAL obligation to do so. even if i have a cell phone, and it's simply a minute of my time to save the guy's life, i cannot be punished for not doing so. even if i can clearly see the guy is going to die without help, and i'm the only one to do so. am i complete moral wasteland in that case? yes. do i deserve shunning, scorn, and excommunication from polite society? sure. but there are no legal consequences to said inaction.

fwiw, i've spent my life as a rescuer (cop, firefighter, lifeguard), and would never consider such immoral evil behavior. just to make that clear.

i am speaking of my jurisdiction. there may be some jurisdictions, where i would have a legal duty to do so, but not in mine at least.


It is much worse to say "the world is better of without you" to someone you have reason to know is mentally unstable and depressed than to say this to your best friend in a joking manner. So, obviously, the context in which you say these words matters.



of course that is true. but i would argue that even if you say it to somebody you know is depressed, and (for the sake of argument) you know to have attempted suicide before, i would argue you should have no legal consequences for saying such a thing.

if somebody is too fragile to be in society and hear mean words said to them, that's a pretty terrible thing, though.

i would argue that if you have some duty of care towards that person, then of course the rules are changed (you are their mental health counselor, etc.).
11.27.2008 8:06pm
Tom Hanna (www):

You conclusiont hat suicide is "totally forseeable" is the conclusory opinion that all of the ends oriented, put-drew-in-jail-for-life types rely on.


Thinking that she ought to take her 3 misdemeanor convictions with likely no jail time and simply walk away is not bloodlust or advocating "jail for life".
11.27.2008 9:19pm
Tom Hanna (www):
Someone made the point that, "this is a frigging libertarian blog." Noting that, I'm amazed that no one has brought up the point that now Chris Hansen and friends are all federal criminals for their fake Yahoo accounts.
11.27.2008 9:31pm
Joe Bingham (mail):
Thanks for this post; the only reason I got online tonight was to see if you'd commented on this! Leaving satisfied.
11.27.2008 9:54pm
einhverfr (mail) (www):

Here is my thinking. It is much worse to say "the world is better of without you" to someone you have reason to know is mentally unstable and depressed than to say this to your best friend in a joking manner. So, obviously, the context in which you say these words matters.


Sure, context matters. However, the context is limited to what is known at the time. (Note that Ms Grills said she, not Lori sent the message above anyway so this is an abstract point not specifically relating to Lori's actions.)

However, my point is that this is a matter of controlling one's own actions for the betterment of others. It is not a matter of something being better or worse depending on what someone else decides to do in response.

Ok. Suppose I find 15 adolescents who are known to be undergoing treatment for depression. Suppose I send out messages to each of them which are equally cruel and one of them commits suicide after reading the message. My argument is that my actions and my guilt would be equal for each one of these incidents, and the suicide does not make one of them worse than the others. I don't believe such actions would be any less worse if I happened to be lucky and nobody committed suicide than it would be if three did.

BTW, there are times to be hurtful to others-- hurtful and cruel are not necessarily the same thing. I would argue that cruelty is always morally wrong.
11.28.2008 12:03am
einhverfr (mail) (www):

Thinking that she ought to take her 3 misdemeanor convictions with likely no jail time and simply walk away is not bloodlust or advocating "jail for life".


She probably ought to for the simple sake of getting on with her life, if that was the main goal of this. Maybe she will do so. However, she probably does want to beat the charges, and may be willing to suffer additional stress to do so.

Also, I think she ought to fight them just because this is a dangerous precedent and, being selfish, I don't want my involvement helping my son look stuff up on Google to become a federal crime.
11.28.2008 12:07am
einhverfr (mail) (www):
David Welker wrote:

If something is foreseeable and easily preventable, then your failure to act is a choice. A choice with consequences.


I assume we are talking morality here (and since in a free society, justice and morality are not entirely synonymous)... Furthermore "foreseeable" and "easily preventable" are both quite relative phrases. Remember too the saying, that hindsight is 20/20.

I believe that we are simply responsible for doing our best to make the world a little bit better. Sometimes what is foreseeable to you might not be to me or vice versa. One is not required to see as well into the future as into the past. So I am not prepared, as a general rule, to hold someone accountable because they could have foreseen a problem. There are exceptions of course, where a fiduciary duty is involved.

For example, I see a deer wandering the side of a busy freeway. I generally take out my cell phone and dial 911 (or have a passenger do so if I am not alone in the car). It isn't my responsibility to do so, and if I fail to do so, I am not responsible for any accident that results, but I think it is a good thing to do. I.e., it is somethng I can take credit for doing, not blame for not doing.

Of course if there is a special duty to do something, that is different. For example, if there is a safety problem at my business establishment with easily foreseeable consequences, I need to take care of that, and I am responsible for any problem that might result from my inaction, but these are really the minority of cases. I don't think every interaction and every circumstance has that sort of special duty.

Sure, contributing to the public good is commendable, but I won't blame people for not doing so at every opportunity.
11.28.2008 12:21am
Mike S.:
So I guess the libertarian position is that it is wrong for government agents to waterboard terrorists, but OK for private citizens to torment teenage girls to help their daughter take revenge in a silly spat.
11.28.2008 8:29am
einhverfr (mail) (www):
Mike S:

So I guess the libertarian position is that it is wrong for government agents to waterboard terrorists, but OK for private citizens to torment teenage girls to help their daughter take revenge in a silly spat.


Legal and OK are not quite synonymous. In this case we can all disapprove of what Lori did (even helping with revenge) without saying the current law should be stretched to punish her for it.

The real issue has to do with the ideas regarding rule of law.

BTW. I suppose it is better than the feud between the wives of Gunnar and Njal in Njal's Saga ;-)
11.28.2008 10:53am
Ex-Fed (mail) (www):
So I guess the libertarian position is that it is wrong for government agents to waterboard terrorists, but OK for private citizens to torment teenage girls to help their daughter take revenge in a silly spat.



That's just silly. Surely you can understand the difference between agreeing that something is morally reprehensible and agreeing that it should be illegal or is illegal under current law.

Do you believe that every morally reprehensible thing should be subject to punishment by the state?
11.28.2008 10:55am
TNeloms:
I still don't understand something that was brought up by PDXLawyer and M R at the top of the comments: What were the jury instructions?

I don't know how this usually works, but I thought the jury is in charge of deciding the facts of the case, not interpreting law. So I would think that the judge would instruct the jury that "without authorization" means something specific, and that if they find that Lori Drew did this, then she is in violation of the law. Then it wouldn't be the case that the jury found that it is a federal crime to violate TOS.

However, the jury doesn't seem to have been instructed in this way, based on what Orin has said, and also based on what I read of the government's proposed jury instructions. Why is that? It doesn't seem that the jury should be in the business of deciding what is a federal crime and what isn't.

Is it that it's not the judge's place to interpret the law before the verdict, and that the appeals court takes this role?
11.28.2008 11:21am
TNeloms:
I have another question regarding jury instructions.

The government's proposed instructions (which I found at http://www.citmedialaw.org) gave four conditions for finding that Drew accessed a computer "without authorization or in excess of authorization" (page 8, starting at line 25). The last condition is that the purpose was to further a tortious act.

If this is the government's argument, then it seems less offensive than what was being discussed above, which was that simply violating TOS is a federal crime on its own. If I'm reading this correctly, the government is instead arguing that violating TOS for the purpose of committing a tortious act is a crime. That's debatable as well, but doesn't seem like an obviously bad idea.

But it doesn't look like the government's suggestion is what actually happened here. From what I can tell, and also from what Orin says, the jury found Drew guilty of violating TOS *without* finding her guilty of committing the tortious act. So the judge must have issued instructions other than what the government proposed, which seems strange, because they seem even harsher. Is that correct? I guess we'll know more when we can see the actual instructions issued.
11.28.2008 12:01pm
Ex-Fed (mail) (www):
TNelnoms, that was my question as well, posed above. For what it is worth, the jury instructions actually given are not yet available on PACER either.

From what I can glean from media reports (which are notoriously unreliable, given the media's fundamental legal illiteracy), the judge instructed the jury that the misdemeanor violations of 1030 were lesser included offenses of the felony violations, with the difference being a failure to prove the connection to a tortious act.

But I don't want to commit to that theory until I actually see how the jury was instructed and what the verdict form looked like.

Maybe Prof. Kerr will weigh in.
11.28.2008 12:13pm
Sam H (mail):
David Welker said "I would certainly give a mother whose daughter was abused in the manner you describe much more license before using the term "hissy fit.""

I disagree. Hawaiian society decided that 14-year old girls could have sex with with an adult, even two at a time. There was no abuse here. You may disagree, but that is not the way we do things in America
11.28.2008 2:17pm
whit:

disagree. Hawaiian society decided that 14-year old girls could have sex with with an adult, even two at a time. There was no abuse here.


fwiw, whether or not sex with a 14 yr old is legal and whether it is "abuse" are 100% completely absolutely not related. (at least when we are talking ABUSE and not abuse-in-the-legal sense)

are 30 yr old(s) who have "consensual" sex with a 14 yr olds "abusing" him/her? most would say yes.

the reality is that emotional maturity varies significantly individual to individual, but when it comes to statutory rape, and drinking age, and age of majority, etc. etc. the law cannot make individualized decsions for each person, so it sets a bright line, however arbitrary. it IS arbitrary, but also consistent across the population (within the state).

some would find it absurd that what is legal in one state is a extremely serious felony in another, and a matter of a days difference in age (birthdays and all) can make all the difference between a high grade felony, and a consensual sexual encounter.

that's the nifty, weird "assness" (the law is an ass) of the law.

but again, whether or not the 14 yr old was abused (legal issues aside) is completely unrelated to whether it was a legal sex act.

plenty of legal acts (sexual or otherwise) can be extremely abusive, yet legal. others can be not abusive at all, yet illegal.

an example of the latter. a case in Mass.

two kids at the local high school were sexually active. they were both 15. (age of consent at time was 16). so, of course neither could consent to sex with the either. the Law (tm) doesn't do anything in that case.

Shortly after, the male of the couple turned 16 and the girl was still 15. Boom: statutory rape.

He was now committing a felony. (or he could have waited a few months for her to turn 16).

Now, if the latter sexual act WAS abuse, then clearly the former was. the only difference was a few days in time, but the exact same act.

otoh, if the latter act WASN'T abuse, then gr00vy. but it was still illegal.

just an example of how whether the act is abusive and whether it's illegal are not related
11.28.2008 2:36pm
David M. Nieporent (www):
Legal and OK are not quite synonymous. In this case we can all disapprove of what Lori did (even helping with revenge) without saying the current law should be stretched to punish her for it.

The real issue has to do with the ideas regarding rule of law.
Indeed. It's amazing how often it happens that when a libertarian says "X shouldn't be a crime," the response from people on the left and/or right (depending on the topic) is "So you think X is okay?"

It's scary how many people think that anything they disapprove of ought to be illegal.
11.28.2008 3:07pm
tom (mail):
i don't think lori drew is the greatest person but if she violated the TOS, didnt megan meier's mother do the same by setting her up a account on myspace when she was underage of there TOS-stating you have to be 14 to have a account?
11.28.2008 3:55pm
Michael B (mail):
Megan Meier was all of thirteen (13) years old, Lori Drew was in her mid to late-forties and conspired with her daughter and Grill to harass and humiliate the thirteen year-old Meier in retribution for the latter's own harassing calls. Lori Drew is a sad case - even repulsive, given her age - but legal remedies do not seem to be appropriate in this case. Otoh, non-legal, community oriented censure and ostracization would seem absolutely condign; given the media reports of the community, however, it seems doubtful that will occur.

Rhetorically put, if Lori Drew is to be subject to legal remedy, then why aren't Megan Meier's parents subjected to legal remedy as well, for parental negligence?
11.28.2008 4:54pm
David Welker (www):

It's scary how many people think that anything they disapprove of ought to be illegal.


But surely, there is grounds for making law on the basis of some conception of morality and right and wrong. Right? I don't think anyone (who is a serious thinker) thinks that all things that are merely wrong should be illegal. But, certainly, some things that are wrong should be illegal because they are wrong. Right?

I think it has to do with the gravity of the harm.
11.28.2008 5:53pm
whit:

I think it has to do with the gravity of the harm.


i think that's true, but only a bit of it. it also has to do with specificity, choice, etc.

contrary to the claims of some, we DO legislate morality (look at laws against bestiality and incest for example), as well as acts that cause others (or even the self) harm, generally.

we generally don't criminalize failure to act (when there is no special duty), lying (especially about relationships, love, etc. exceptions are when there is some sort of financial scheme or we are dealing with sworn testimony), being mean, being cruel, etc.

i deal with complaints of "harassment" all the time, and citizens frequently want sally smith arrested for "being mean" and i frequently have to disabuse them of the notion that being a pain in the keister is not a crime.

there ARE remedies when somebody is being mean to you - tell them to stop contacting you, and if they don't - get a anti-harassment order. i've argued this numerous times in other cases.

the drew case is unique from the above in that the whole meanness was done through the artifice of a false identity.

that's great. but...

it also shouldn't be illegal for a woman to pick up a guy in a bar by pretending to be all sorts of things she isn't (employment wise, past history wise, etc.), saying that she loves him when she doesn't, and tricking him into sex (feel free to reverse genders as well).

say that a particular vindictive lori drew'esque woman led you to think she loved you, you bought her lots of stuff, and then she dumped you and said the world would be better off w/o you. does ANYBODY think this should be a crime? even if you decided to kill yourself because of what she said/did? of course not.

just because somebody does this over the internet doesn't change things.

essentially people have the right to be annoying, creatively so or not. in the drew case, the "victim" voluntarily corresponded with drew etc. and she got taken for a ride. very mean. but not illegal.
11.28.2008 6:12pm
einhverfr (mail) (www):

I think it has to do with the gravity of the harm.


As well as harm caused by stretching the laws. This is why I support cyberbullying laws only where there are clear bright lines (the victim must make an unambiguous effort to stop the harrassment, etc, none of which would have applied to this case).

I would define the test as one of balancing harms. Legal restrictions, insofar as they reduce our liberty, are harmful and we have to determine when this harm is outweighed by what we seek to prevent. This is one reason why all laws are subject to rational basis review.
11.28.2008 6:32pm
David Welker (www):

it also shouldn't be illegal for a woman to pick up a guy in a bar by pretending to be all sorts of things she isn't (employment wise, past history wise, etc.), saying that she loves him when she doesn't, and tricking him into sex (feel free to reverse genders as well).


Why should it be okay to get sex by lying, but not get someone to give money by lying? Surely the harm done may be greater in some cases where it is a sexual relationship that is entered into wrongly than in cases where what is lost is financial.

I am speculating here. But I am going to guess that people just did not think it was proper to have sex outside of marriage and so did not want to dignify the interest here. Further, it would be too socially embarrassing to bring such a claim. My guess is the reason this interest is not protected is historical.

I wouldn't have a problem with a law that provided a punishment for lying in order to induce someone to have sex. I do not see it as significantly different from other types of fraud -- just as with financial fraud, I do not think the consent is truly freely given. I do not see any benefit from protecting the ability of someone to lie and commit a sort of fraud.

Now, of course, there is an issue of what is a "material" lie is in this context. There are some administrative complications there to be sure. But, I do not see those as being much more severe than in making this determination regarding financial fraud.
11.28.2008 6:43pm
einhverfr (mail) (www):

Why should it be okay to get sex by lying, but not get someone to give money by lying? Surely the harm done may be greater in some cases where it is a sexual relationship that is entered into wrongly than in cases where what is lost is financial.


Who said it was OK? However, don't you think that making such a thing illegal would largely mean the end of the home of the free?
11.28.2008 6:49pm
einhverfr (mail) (www):

I wouldn't have a problem with a law that provided a punishment for lying in order to induce someone to have sex. I do not see it as significantly different from other types of fraud -- just as with financial fraud, I do not think the consent is truly freely given. I do not see any benefit from protecting the ability of someone to lie and commit a sort of fraud.


So if non-consentual sex is rape, and consent is not freely given, then an error by omissions (oops, one of the parties failed to mention he/she was married) becomes the basis of a rape charge?

In rare cases, I think that fraudulently gaining consent may raise to the level of rape, but those would be truly rare cases (for example the case in the UK of the doctor telling patients it was the only way to apply certain medicines). However, those are extremely rare and would involve some additional factors not generally found elsewhere.
11.28.2008 6:53pm
David Welker (www):

Who said it was OK? However, don't you think that making such a thing illegal would largely mean the end of the home of the free?


Your joking right? If you don't have the right to lie to people to take something valuable away from them for your own benefit, we no longer live in a free country? Why doesn't outlawing lying when the benefit received is money not end our status as a free country?

By the way, I am not sure that rape should be the name of this crime. Perhaps something with a less severe punishment would be appropriate. Regardless, I do not have a problem making this a crime of some sort.
11.28.2008 7:03pm
whit:

Why should it be okay to get sex by lying, but not get someone to give money by lying?


because "all is fair in love and war" but not theft.

also, refer to the latin

caveat schtuppor
11.28.2008 7:08pm
David Welker (www):
whit,

I am definitely not persuaded.
11.28.2008 7:10pm
whit:

Regardless, I do not have a problem making this a crime of some sort.



i love threads like this because they CLEARLY demonstrate how incredibly unlibertarian some people are, how easily govt. powers can expand into the MOST personal areas of our lives, and how people fail to recognize that much that is morally suspect should not be within the realm of the govt. to investigate, let alone prosecute.

i most definitely wouldn't want to live, or be a cop, in a country where the govt. had such powers.

remember, every time you make something illegal (do it for the children!) you generally increase govt. power to detain, arrest, investigate, and look into people's private affairs.

lying/exaggerating/cojoling/heck... begging for sex has been going on since the beginning of time. it is the job of parents to teach people (teach your daughters well) not to believe every slick lothario who comes along and to be the gatekeeper so to speak of your own "house".

it really disturbs me that you (and probably many others) are so quick to cede liberty like this.
11.28.2008 7:16pm
David Welker (www):

it really disturbs me that you (and probably many others) are so quick to cede liberty like this.


What liberty is being ceded? The liberty to engage in a type of fraud?
11.28.2008 7:20pm
whit:

I am definitely not persuaded.


david. i am not interested really (that's why i gave a quick snarky answer at first) in persuading people of such basic principles regarding liberty. they are either self-evident to you, and/or come through sufficient reflection and experience. i'm a libertarian. you CLEARLY are not. fair enough. it scares the crap out of me that people with your mindset exist, but i accept they do.

you are espousing the standard statist mindset. fair enough.

living in a land of liberty means you necessarily have to put up with mean people, liars, etc. without help from the govt. to punish them for such horrible offenses against your fragile person. that's part of the tradeoff of liberty. if we cede less power to govt. to interfere in such incredibly personal areas of our lives, we retain way more freedom, but have no LEGAL redress for when people are mean to us by (god forbid) lying to us about that they love us, or some such tripe.

a smarter man than me (possibly):) wrote a book many years ago where he defined thought-crime and sex-crime.

feel free to read it. it's pretty good. and a warning
11.28.2008 7:21pm
David Welker (www):
Hey whit,

Why isn't it a threat to liberty to outlaw lying for monetary gain? Why isn't putting up with those sorts of liars the price of liberty? Surely we as a society would be able to go on even if financial fraud were not punishable as a crime. We would just have to be more careful with out money.
11.28.2008 7:31pm
David Welker (www):
"out money" = "our money"
11.28.2008 7:32pm
whit:
again, david. i'm not going to argue basic principles against a statist argument.

property rights are key in a capitalist and free society.

when it comes to intimate personal relations, otoh, we generally say to govt. to stay out of our bedrooms.

and most of us (statists aside) recognize the huge difference between govt. being given the power to investigate financial transactions vs. sexual transactions.

seriously. if you are playing devil's advocate, fine. i really hope so. otherwise, you scare me.
11.28.2008 7:48pm
David Welker (www):
whit,

I am not playing devil's advocate. I just disagree with you on this one. I don't see it as a loss of liberty to make it a crime to lie to steal, whether what is stolen is money or a sexual relationship. The government already investigates "sexual transactions" when necessary for a variety of other crimes (prostitution, allegations of rape, human trafficking, etc.) Furthermore, plenty of people would prefer it if the government did not investigate their financial transactions. For that matter, most people would prefer that the government not rifle through their personal drug stashes. The need to investigate a crime and incidentally uncover private information does not sound like a very compelling reason to make that which should otherwise be a crime not a crime. Such investigations are incidental.

Furthermore, while you are correct that private property is key to a free society, so is the right to have sex with only those you wish and no others. Private property would not disappear if we decriminalized financial fraud. Neither would the ability to have sex only you wish if sexual fraud is decriminalized. In both cases, we could have a system where people have to take care of themselves and be more careful and have no recourse when lied to and tricked.

And anyway, having criminal penalties doesn't solve all of the problems associated with being financially defrauded anyway. It is not like criminal penalties save us from having to be careful in our financial dealings. Yet, even though such laws do not even save us that trouble, we have laws against financial fraud.

Basically, there really is no convincing argument distinguishing these two cases. In both cases, our society could function without laws outlawing the fraud, whether financial or sexual. In both cases, intrusive investigations would be necessitated in cases where such laws were violated. In both cases, we could outlaw the fraud without undermining our status as a free society. There is no compelling need to preserve the "liberty" to lie to others in order to take from them.

In any case, I am perfectly happy to agree to disagree. But, I do think it is just a little over-the-top for you to assert that our difference of opinion is "scary." This case is not all that different from another case where you think criminal law is perfectly appropriate.
11.28.2008 8:22pm
whit:

I don't see it as a loss of liberty to make it a crime to lie to steal, whether what is stolen is money or a sexual relationship


the fact that you can draw an equivalence and speak of a "stolen sexual relationship" shows the absurdity of your reasoning.

as for the scary part. note that no civilized western society criminalizes this. do you think there is a REASON? it's scary to me that you can engage in such sophistry to justify giving govt. the power to intrude into sexual relations merely because a person claims they were lied to by a sexual (or prospective sexual partner).


The need to investigate a crime and incidentally uncover private information does not sound like a very compelling reason to make that which should otherwise be a crime not a crime. Such investigations are incidental.



this shows another fundamental misunderstanding. the intrusiveness necessary to investigate a "crime" is very relevant to policy issues of whether it should or shouldn't be outlawed.

i am not being hyperbolic when i say you (by virtue of your ideas) scare me.

and like i said, clearly you are not even remotely close to being a libertarian.
11.28.2008 8:51pm
David Welker (www):

the fact that you can draw an equivalence and speak of a "stolen sexual relationship" shows the absurdity of your reasoning.


No, really, it doesn't. In both cases, something that belongs to someone else is taken through lying. In neither case is the "liberty" to lie to take something that does not belong to you from someone else something that needs to be protected.

I am afraid that mere name-calling (i.e. "absurdity," "statist," "sophistry" and most amusingly "non-libertarian") also does not qualify as argument.

I think you know your response does not qualify as argument. You just want to express your strong disagreement. I understand that.


this shows another fundamental misunderstanding. the intrusiveness necessary to investigate a "crime" is very relevant to policy issues of whether it should or shouldn't be outlawed.


Is the fact that we outlaw prostitution and pimping an indication that we have given up our liberty? Surely, people find it very intrusive to be arrested by vice squads when all they wanted was a good time sexually.

Do you find it "scary" that our society has outlawed prostitution? What about laws against knowingly giving others STDs? Too intrusive?

What about divorce proceedings? A lot of dirty laundry can come out in these. Is our society "scary" because of the intrusiveness of divorce proceedings?

I have an idea. If you are want to avoid intrusive investigations under a regime where fraud in order to obtain sexual benefits was illegal, may I suggest that you avoid any such fraud in the first place?? Yeah, an uncomfortable investigation could occur in cases of false accusations. But, this is true with respect to false accusations of rape, or false accusations of prostitution too.

Overall, I understand the need to draw lines to protect liberty. But, I think you are drawing them in all the wrong places.


P.S. -- You still haven't explained why we shouldn't just decriminalize financial fraud under your theory.
11.28.2008 9:20pm
whit:
i think i'm drawing the line in exactly the right place, fwiw the same place every western society i am aware of draws it - fraud to get money = crime, deceit to get laid = yer a jerk.

to me (and apparently every society in the western world) there is a qualitative difference between property stuff (fraud, etc.) and who we choose to schtup.

fwiw, we USED to have sort of a ownership aspect to sex in that men essentially owned their wives' sexuality and basically she had no say in the matter. note that the jewish religious tradition is almost the reverse in that it is the duty of the male to provide same to his spouse but i digress.

the point is that there is a qualitative difference between property stuff and sex stuff.

and we don't let people sell sex, but we do allow them to sell property (well, prostitution is legal in RI in some circ's and parts of nevada but i digress). so, there's a lot of ways we draw the distinction.

your divorce example is irrelevant because that's a civil proceeding and the disagreement is over CRIMINAL sanctions for what you deem to be a sexual fraud.

we don't criminalize adultery (or cheating on your boyfriend/girlfriend), fwiw, despite the fact that we recognize it's wrong. and we don't accept sexual contracts for sex in exchange for X as binding, whereas we do accept contracts for property stuff all the time. a guy in WA state was recently convicted for rape, and he had the participants sign a contract in regards to allowing him to have sex with him in exchange for room, board, etc.

iow, we view sex DIFFERENTLY than property. it is a qualitative distinction that every western society i am aware of makes.

people like you would dissolve that distinction and turn every wronged man and woman who felt tricked/deceived/lied to by a partner into VICTIMS.

just what we need. more fake victims of more fake crimes.
11.28.2008 10:36pm
TWAndrews (mail):
If ever there was a case for a bit of non-precedent-setting vigilante justice, the Lori Drew case is it.

Her behavior was totally reprehensible, and the possibility that she would spend eternity suffering is, for my money, a great reason to believe in hell and hope that she rots in it. If I had been Megan's parents, I suspect that I would have inflicted bodily injury (or worse) on Ms. Drew.

However, any visceral pleasure derived from seeing Ms. Drew get some portion of her just deserts is far outweighed by the damage that this verdict inflicts on the judicial system.
11.28.2008 10:59pm
David Schwartz (mail):
I would have no problem with criminalizing violating a ToS for the purpose of committing a tortious act. However, such a law would have to be written very carefully to prevent private parties from being able to make criminal charges hinge on interpreting absurdities such as whether something is "bad stuff, in the sole opinion of the web site operator".

Right now, we have no such law. And as far as I know, nobody has gone to effort of working out exactly how to craft such a law.

This law requires exceeding authorized access, not using your authorized access for a purpose the owner doesn't want you to use it.
11.28.2008 11:17pm
David Welker (www):

the point is that there is a qualitative difference between property stuff and sex stuff


Agreed. You can sell your property. You cannot legally sell sex. (Of course, the distinctions between prostitution and pornography do boggle the mind slightly, but now it is I who digresses.)

But, there are also similarities, and I think those similarities are quite significant. One significant thing about property is that you get to choose how to use it. It is the same with sex. You get to choose how to use that as well.

When someone lies to you and deceives you in order to influence your choices regarding your property for their own advantage, they are corrupting your choice. Your consent is not truly valid.

To me deceit to get money and deceit to get sex are quite similar. In both cases you are using deceit to take something from someone else. Something that does not belong to you. I think our right to choose who we have sex with and under what conditions we have sex is as important as our right to make decisions regarding what we do with our property or our money.

You keep on saying these things are different. But, you haven't yet really said how and why. Mostly you have made vague references to traditions within Western civilization (which as you have noted has evolved).


fwiw, we USED to have sort of a ownership aspect to sex in that men essentially owned their wives' sexuality and basically she had no say in the matter. note that the jewish religious tradition is almost the reverse in that it is the duty of the male to provide same to his spouse but i digress.


Interesting digression. I will note that the modern trend, I still think we still have a "sort of" ownership in sex (not that we call sell it). Only instead of our husbands or wives owning our sexuality, we ourselves "own" our sexuality.


your divorce example is irrelevant because that's a civil proceeding and the disagreement is over CRIMINAL sanctions for what you deem to be a sexual fraud.


I don't think it is irrelevant. In civil proceedings, coercion is used to reveal information that people would prefer to keep private. It can be every bit as invasive as a criminal investigation.

There is a difference in what the information is used for in civil cases versus criminal cases of course. But, in both cases private information is obtainable via coercion.

This is certainly relevant when you say, well, I don't think it should be a crime, because of the investigation that results. Well, we already have other proceedings with intrusive investigations.

I think that if what I call sexual fraud should be a crime, whether investigations are intrusive or not is rather incidental. If someone accuses you of knowingly or purposely giving them an STD, there is the possibility of an intrusive investigation. If someone accuses you of rape, there might be an intrusive investigation. If you are accused of pimping or prostitution, there might be an intrusive investigation. So, I think the real issue is primarily one of whether the act itself should be a crime or not. Finally, many people might find investigations of finances to be every bit as intrusive as these other investigations. Are investigations into drug use and drug dealing intrusive? I would say so.


people like you would dissolve that distinction and turn every wronged man and woman who felt tricked/deceived/lied to by a partner into VICTIMS


First of all, when someone does trick, deceive, or lie to you (they actually did it, you don't just "feel" that way) to get either sex or property you would not otherwise give them, you ARE a victim, regardless of whether it is legal or not.

Second, notice the subtle rhetorical move you make, constructing something of a straw man. You are talking about people who "feel" defrauded. Well, in reality, I do not want to make law based on mere feelings. It is not a crime to make someone "feel" financially defrauded. It is a crime to actually financially defraud someone. My standards would be no different when it comes to sexual fraud.

Third, "people like you" would turn people who are tricked/deceived/lied to about a material matter when it costs them money into VICTIMS...

That is a good thing. Because they ARE victims.


we don't criminalize adultery (or cheating on your boyfriend/girlfriend), fwiw, despite the fact that we recognize it's wrong. and we don't accept sexual contracts for sex in exchange for X as binding, whereas we do accept contracts for property stuff all the time. a guy in WA state was recently convicted for rape, and he had the participants sign a contract in regards to allowing him to have sex with him in exchange for room, board, etc.

iow, we view sex DIFFERENTLY than property. it is a qualitative distinction that every western society i am aware of makes.


I agree with you that we don't treat these things differently. And rightly so. But that doesn't resolve the question at hand. Why shouldn't we be as protected from sexual fraud just as we are from financial fraud. It is not as though either interest is anything less than fundamental. And it is not as if either interest absolutely needs to be protected.

This is actually a somewhat unusual argument for a libertarian. It seems like most libertarians I talk to want to treat sex more like property (i.e. legalizing prostitution, not acknowledging the concept of obscenity, etc.)

Your point about adultery is interesting. Actually, adultery is still a crime in some jurisdictions, though usually not prosecuted. Not that I think it should be (see, I really do agree with the idea that law and morality should not overlap completely -- shocking, I know). What does this tell us about the traditions of western civilization that you keep on citing? Yes, western civilization has distinguished between sex and property. But traditionally not always in ways that either of us would agree with. Now that those distinctions are evolving, the question is what principles should guide us in that evolution.

Well, criminal adultery statutes protect an entirely different interest than what I propose to protect. Instead of protecting the interest of an individual in the sexual behavior of another individual, I propose to protect the interest of an individual in their own sexual autonomy. Consent is not truly freely given when deceit, lies, or trickery is involved.

Anyway, here is all I have to say. We will probably continue to disagree. I am nearly sure of that. But, if my view were to be implemented, that would not be the end of western civilization. Indeed, some would think that the view that adultery is now considered immoral but not criminal would be the end of western civilization. They were wrong. May I suggest that our disagreement likewise does not have the dramatic overtones that you suggested earlier.

P.S. - Just for the record, you still haven't explained why financial fraud should be a crime. Why isn't this just something we think is immoral, like adultery? Why not just have civil lawsuits as the only remedy? Why even have civil lawsuits? We have neither criminal nor civil sanctions for sexual fraud. Surely, the institution of private property would survive just fine without either criminal or civil sanctions for financial fraud. Especially as people need to be careful about such fraud anyway. What is the theory? Aren't the investigations that result from allegations of financial fraud intrusive?

Feel free to answer these questions, if you are up for the challenge. I don't expect you to. I just wanted to note the issues you haven't addressed but would need to address to truly make a satisfying distinction between financial and sexual fraud.
11.29.2008 12:03am
whit:
that's a good post, and i think we are going to have to agree to disagree...

but...

one thing is that our concepts of libertarianism differ. generally speaking, i think there should be a heavy burden before we make anything illegal. iow, just because something sucks is nowhere nearly enough to say we should give govt. the power to regulate/investigate/prosecute it.

i think sex is personal and very different from money.

if somebody says "give me 10,000 to invest and pay me a 1,000 fee and i can guarantee you i will make a fantastic return on your money", and you give him your money (you are an idiot but i digress), and the guy loses it all, he's committed a crime, because it's illegal to even make that promise (i'm reasonably familiar with securities laws since i am a futures trader).

otoh, if a person says "have sex with me and i will give you the best sexual experience of your life and bring you to the most incredible orgasm you've ever had" and you agree to have sex with that person and it wasn't anything like he/she promised, i file that under "tough".

do you think the latter person has committed a CRIMINAL fraud?

heck, let's say the person even says "and the last 5 people i have had sex with all said it was the best i've ever had" (and that's a blatant lie)...

i would still say... tough.

btw, one quirkly legal difference in sexual relations (in WA state ) between married and unmarried is that if you are married, you can have sex w/o consent with your spouse and it's legal (note: WITHOUT consent, not AGAINST consent). that is not true if you are not married. it's rape.

an example would be if you have sex with your spouse and your spouse was extremely intoxicated such that there is no way consent could be knowingly and intelligently given, it's not rape.

if you do that with your girl/boyfriend TECHNICALLY it's rape.
11.29.2008 12:17am
David Schwartz (mail):
If you can't contract for sex, you can't defraud someone out of sex. Defrauding would require violating the terms of the agreement. If we are prohibiting sex for compensation, we cannot criminalize sex without promised compensation. It strikes me as a logical absurdity to "defraud" someone out of sex.

If you cannot trade sex for compensation, you cannot turn around and claim the compensation was inadequate.
11.29.2008 12:47am
einhverfr (mail) (www):

Your joking right? If you don't have the right to lie to people to take something valuable away from them for your own benefit, we no longer live in a free country? Why doesn't outlawing lying when the benefit received is money not end our status as a free country?

By the way, I am not sure that rape should be the name of this crime. Perhaps something with a less severe punishment would be appropriate. Regardless, I do not have a problem making this a crime of some sort.


So, let's go back and look at the recent case in France dealing with annulment proceedings because the husband entered into the marriage assured by his then-wife-to-be that she was a virgin, but she had previously engaged in premarital sex.

You would make that a crime? Not merely possible grounds for annulment or at-fault divorce, but a crime?
11.29.2008 2:08am
einhverfr (mail) (www):
More David Welker points:


But, there are also similarities, and I think those similarities are quite significant. One significant thing about property is that you get to choose how to use it. It is the same with sex. You get to choose how to use that as well.

When someone lies to you and deceives you in order to influence your choices regarding your property for their own advantage, they are corrupting your choice. Your consent is not truly valid.

...

To me deceit to get money and deceit to get sex are quite similar. In both cases you are using deceit to take something from someone else. Something that does not belong to you. I think our right to choose who we have sex with and under what conditions we have sex is as important as our right to make decisions regarding what we do with our property or our money.


Ok. So let's take this a step further. Your main point is that we have complete autonomy over our sexual lives to a certain point (absent crimes such as prostitution, adultery, wrongful seduction, and the like. though these vary strongly from one jurisdiction to another).

The same can be clearly said for nearly every other action we can make. If I trick you into making a political endorsement in the radio or on your blog that you might not otherwise have made, the same logic would seem to apply-- that I am using deceit to obtain something that is not rightfully mine.

So why limit this to sex? Why not make deception a crime in all cases? Every lie punishable by up to a year in prison?
11.29.2008 2:14am
whit:

So, let's go back and look at the recent case in France dealing with annulment proceedings because the husband entered into the marriage assured by his then-wife-to-be that she was a virgin, but she had previously engaged in premarital sex.

You would make that a crime? Not merely possible grounds for annulment or at-fault divorce, but a crime?



fwiw, i came down strongly on the side that this was grounds for an annulment.

marriage is a formal contract with both rights and obligations, recognized by the state (contrast with a one nighter).

a person who makes fraudulent claims about something so materially important (as it clearly was in this case to the spouse) ... i don't see a problem with annulment

would this be a welker felony (tm)?
11.29.2008 4:04am
whit:
ein, you got my back, man. these are much better points than i was making.

i knew welker's ideas were totally lame, but i wasn't as eloquent in noting the problems with it.
11.29.2008 4:05am
David Welker (www):

would this be a welker felony (tm)?


No, it is the welker misdemeanor (tm). I think that is probably the appropriate level of punishment.


i knew welker's ideas were totally lame, but i wasn't as eloquent in noting the problems with it.


Now this is just totally funny.

einhverfr,

As far as the French case, there are two ways it could be resolved, either of which would be acceptable to me depending on societies view's on virginity. One is to say that virginity is not material. I would be fine with that.

If we insist that virginity may be considered material, then why shouldn't it be a crime? I personally think the guy is ridiculous for demanding a virgin. But, I don't see why she should be able to lie about it. It is not up to her to decide what should or should not be important to him (although if society deems it to be immaterial, that is another matter). In many ways, this is worse than merely engaging in sexual relations based on a lie. This is actually getting married based on a lie. Sounds like a reasonable case for a misdemeanor, as she has done real harm to an innocent party.

Many acts that involve much lesser harms (i.e. public drunkenness, loitering, etc.) are crimes.

I am assuming that there were not any abusive circumstances or pressures that led to this lie, and instead she simply wanted to lure this guy into marriage based on totally false pretenses. Obviously, if that was the case, the analysis would change accordingly.


The same can be clearly said for nearly every other action we can make. If I trick you into making a political endorsement in the radio or on your blog that you might not otherwise have made, the same logic would seem to apply-- that I am using deceit to obtain something that is not rightfully mine.


Sexual relations are obviously treated differently. Unwanted touching without consent, is battery. If that unwanted touching consists of sexual intercourse, that is rape, not merely battery. Is that puzzling to you? If not, then you will understand why sexual autonomy has traditionally had greater protections.

Further, your endorsement example is particular inapt, since the harm from an endorsement is obviously much less. Generally, if the harm is worthy of punishment, it probably can be translated into some monetary loss. That seems to be a reasonable, though obviously imperfect, way to distinguish between less important and more important deceptions in many cases. I certainly would not want to outlaw all lying, especially those where no real harm occurs.

Since I have answered your question, why don't you answer mine.

How does one go about drawing a principled line between financial fraud and sexual fraud?
11.29.2008 4:58am
SupremacyClaus (mail) (www):
The content of a publication has First Amendment immunity, in a series of tort cases against books that caused damage. A chemistry book caused a lab explosion. A cookbook sickened people. A travel book failed to warn, the giant surf of Hawaii could hurt people. A mushroom encyclopedia caused liver failure by labeling a wild mushroom as safe. These did not even involve a fictional character. This case also criminalizes any fictional publication that induces a damaging behavior in any reader.

The exception was a pilot's map that resulted in a plane crash into a mountain. It was deemed a tool, like a compass, and not a publication (Jeppesen).
11.29.2008 8:01am
einhverfr (mail) (www):
David Welker wrote:


As far as the French case, there are two ways it could be resolved, either of which would be acceptable to me depending on societies view's on virginity. One is to say that virginity is not material. I would be fine with that.

If we insist that virginity may be considered material, then why shouldn't it be a crime? I personally think the guy is ridiculous for demanding a virgin. But, I don't see why she should be able to lie about it. It is not up to her to decide what should or should not be important to him (although if society deems it to be immaterial, that is another matter). In many ways, this is worse than merely engaging in sexual relations based on a lie. This is actually getting married based on a lie. Sounds like a reasonable case for a misdemeanor, as she has done real harm to an innocent party.


Ok. So you agree that under your view this would be covered under the misemeanor you are proposing. However, I would point out that as soon as you start determining what areas are material for the purpose of your misdemeanor, you end up with a series of arbitrary lines which undermine the statute you are proposing.

Now, it seems to me that the harm standard you are proposing would be better enshrined in civil law rather than criminal law. After all, the appropriate remedy would be to compensate the harmed party rather than imprison the harming one. So what is the rationale for making it a crime?


Sexual relations are obviously treated differently. Unwanted touching without consent, is battery. If that unwanted touching consists of sexual intercourse, that is rape, not merely battery. Is that puzzling to you? If not, then you will understand why sexual autonomy has traditionally had greater protections.


To some extent I will grant you that point. However, I would point out that with *very* few exceptions, lies in these cases (for example, the original example of saying "I love you" falsely) would almost certainly either be unenforcible (how do you prove beyond a reasonable doubt that it was a lie?) or immaterial. Sure, *some* lies resulting in sex should rise even to the level of rape (I mentioned one case from the UK I would agree with rape charges due to lies) but in those cases:

1) There is a special duty. For example, if a psychiatrist claims that sex with a patient will help her recover faster, that ought to be punishable.

and

2) That special duty is abused in a fraudulent manner.


Further, your endorsement example is particular inapt, since the harm from an endorsement is obviously much less.


Ok. Let's generalize to false campaign promises. You are guaranteed the right to vote how you choose. Someone lies to get your vote, they harm you and the country in doing so. Arguably campaign promises which are not made in good faith are fundamentally more damaging than lying to have sex, and violate the same fundamental principles of self-autonomy in the voting booth.
11.29.2008 1:18pm
einhverfr (mail) (www):
I have devoted a separate post to David Welker's question:

How does one go about drawing a principled line between financial fraud and sexual fraud?


Ok. As I have mentioned, there are cases where sexual fraud can rise to the level of a crime in my opinion where laws ought to make an offence punishable. After careful consideration I have come to agree with you that there is no such line, but that the severity of fraud does not apply to the original example, unless you make just about any lie punishable as fraud.

Ok, if I go around to strangers in a bar asking for $10 each with the promise to come back and pay a week later, and I don't, it is unlikely that this will rise to the level of a crime, even if there is an attempt to prosecute. At best that is a civil contract violation, even if I had no intention of paying the money back.

Given that sexual activity has no saleable worth by law, it would be inappropriate to use the same standard for sexual fraud. How do you determine when a lie is bad enough to make it criminal?

Similarly in rare circumstances financial fraud (substitute $10 with $10k, and offering to pay $100k back the next week and making this in bad faith) might be appropriate. Pyramid schemes for example would involve this.

But note that most financial lies are not fraud. For example, if a multi-level marketing firm touts the examples of their founders' wealth as attainable through their program, this is a lie. It is not fraud however.

Now, are there cases where sexual fraud can exist? Yes. For example, suppose a psychiatrist tells his attractive female patients that sexual intercourse with him is the only way to cure her of her problems, or suppose a physician tells his patient that it is the only way to apply some sort of medicine. However here you have a special duty which is dismissed and abused.

Most sexual contracts (as opposed to financial contracts) are void. In many states, however, marriage is a sexual contract (New York, for example, recognizes an unwillingness to have sexual relations with one's spouse for more than 1 year as a form of abandonment for purposes of at-fault divorce proceedings) Hence it is difficult to apply the same ideas to sexual activity in the absence of marriage, though in unusual circumstances, it might apply.

In short, perhaps there isn't a principled line, but it still would not generally apply to picking up men or women in a bar under nearly all circumstances imaginable.
11.29.2008 1:40pm
winstontwo (mail):

In an earlier thread, you argued that I was an apologist for lawlessless by not taking every opportunity to object as strongly as possible to the Bush Administrtaion's violations of the law and expansions of government power on principle:
. . .
Now, in the Lori Drew case, I am taking on the Bush Administration and fighting their lawless theory that would give the government the power to pick up and lock away anyone in the country who uses the Internet. I am working pro bono to protect civil liberties in this country against the Bush Administration's claim of extraordinary power that every former DOJ computer crime prosecutor has rejected. And yet now your response is to defend DOJ, dismiss the views of career DOJ lawyers who oppose the prosecution, and instead criticize those of us who are taking it on:

Gee, I did not know that guilt or innocence was determined by a poll of former DOJ prosecutors.

Your elitist contempt for the jury system is just stunning.


Winstontwo, I suppose the obvious question is, when did you decide to become an apologist for the Bush Administration's lawlessness? And why?

Apparently you do not see that there is any difference between illegal policies that are promulgated by the Bush Administration (e.g. torture, imprisonment without charges, etc.) and the application of a statute enacted by congress.

Are you such a torture fanboy that you can't tell the difference?

And as for addressing whether or not you are an apologist for the Bush administration, Mr. Greenwald so thoroughly demolished your dodging that you just look silly continuing an argument that you have already lost. But I will leave you with this question:

Let me ask you this: When Mukasey was giving his speech at the Federalist society justifying the Bush Administration policies, did you stand and denounce him or did you just sit there picking at your salad?
11.30.2008 12:40am
einhverfr (mail) (www):
Wintontwo:

Apparently you do not see that there is any difference between illegal policies that are promulgated by the Bush Administration (e.g. torture, imprisonment without charges, etc.) and the application of a statute enacted by congress.


The congressional record made it very clear that the statute enacted by congress was aimed at a problem other than terms of service violations.
11.30.2008 12:54am
winstontwo (mail):

The congressional record made it very clear that the statute enacted by congress was aimed at a problem other than terms of service violations.

I know that and it supports my point. Mr. Kerr is attempting to argue that his efforts against a congressionally enacted statute (which may have been misapplied by government attorneys) is somehow parallel to working against the illegal torture regime policies promulgated by the Bush administration.

That, of course, is just silly.

But since Mr. Kerr wishes to style himself as an opponent of abusive Bush administration policies, let's let him answer what he did when he was sitting in a room listening to the atty. gen. prattle on about the administration's successes at the Federalist dinner. Did Mr. Kerr stand and denounce the policies, the way an honest patriot would?

Or did he just sit there and applaud politely?

(((Cue the "it would be impolite to ever embarrass an government poo-bah at a social event" argument . . . After all, when your government is illegally torturing and imprisoning people, one musn't be impolite or, heaven forfend, uncivil, right?)))
11.30.2008 1:58pm
whit:

illegal torture regime policies promulgated by the Bush administration.


begging the question 101.
11.30.2008 6:28pm
einhverfr (mail) (www):

I know that and it supports my point. Mr. Kerr is attempting to argue that his efforts against a congressionally enacted statute (which may have been misapplied by government attorneys) is somehow parallel to working against the illegal torture regime policies promulgated by the Bush administration.

That, of course, is just silly.


I am not sure it is so silly. Without the rule of law, the Bush Administration can do whatever they please. Trying to avoid having statues applied in unconstitutional and unintended ways seems to be very much at the core of that question.

Now, I haven't actually seen Kerr talk about the torture issue too much. I have seen him argue about the FISA amendments and a few specific cases. While I disagree with him in some specific ways (mostly about some elements of the FISA compromises), these are mostly matters of intelligent disagreement, not cases where he is a cheerleader for lawlessness.
11.30.2008 9:36pm
eclipse:

being a scum-sucking bitch isn't illegal


Exactly. The girl's life may have been sad, but this case is silly.

Since the earliest BBS, sock-puppets have been a way of internet life, and TOS a waste of bandwidth.

If there simply must be legal action, parents who turn their kids loose on the internet are probably guilty of reckless endangerment.

Nevertheless, teenagers committed suicide before the internet, and parents will always look for someone else to blame, some outside incident; otherwise, they would have to blame themselves.
12.2.2008 12:01am
KC (mail) (www):
RE:
You are espousing the standard statist mindset
Of course he is...that is because battles today are as much about ideas and images as they are territories, if you're a military and intelligence agency, you're going to take down information that is in opposition and control the message. Hence, anything can become "illegal." Even killing cops.

Remember what that old guy from England once said...First we kill all the lawyers.
12.3.2008 5:43am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.