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The Lori Drew Jury:
The St. Louis Post Dispatch has a story drawn from an interview with the forewoman of the jury in the Lori Drew case. An excerpt:
  The forewoman of the jury that convicted Lori Drew of misdemeanors for cyber bullying said Monday that a majority of the panel favored a felony conspiracy verdict that could have sent her to prison.
  Most jurors believed a felony conviction would send a message that Internet sites should be better regulated for fraud, the forewoman, Valentina Kunasz, said in a telephone interview.
  But four jurors would not be convinced, Kunasz said, blocking a felony verdict.
  "I would have liked to see this lady go to jail to change the way Internet sites are run," said Kunasz, 25, a former hairdresser who lives in Los Angeles County.
  . . .
  Kunasz described herself as among eight jurors who believed that Drew acted maliciously.
  "I didn't think she intended to have this girl kill herself," Kunasz said. "But she knew she was suicidal, depressed and taking medicines, and still continued to pursue this act."
  It didn't matter much whether Drew typed the messages to Megan, or whether it was Sarah or Grills, Kunasz said. Drew didn't stop it, and that was malicious.
  "What is a 47-year-old woman doing egging on her child and employee to do this?" the juror asked.
  Four holdouts on the 12-member jury believed that Drew set up the MySpace page to learn what Megan was saying about Drew's daughter, not to harm her, Kunasz said.
  "I wish that those four other jurors would have had a different opinion," she said. "But they thought what they thought, and they were entitled to that."
  None of the other jurors could be reached for comment. . . .
  Kunasz said the jurors rejected three felony charges — unauthorized access of a computer with the intent of using interstate communication to inflict emotional distress — because they did not find the messages on specific dates tied to the charges to be particularly malicious.
  Instead, they found Drew guilty of misdemeanor versions that required prosecutors to prove only that the computer access was unauthorized.
  Kunasz said the jury could not consider the final message from "Josh" to Megan — "The world would be a better place without you" — because it was sent via an instant message program outside MySpace and wasn't "interstate" communication. "It would have been helpful if it could have been considered," Kunasz said.
Thanks to How Appealing for the link.
Anderson (mail):
Kunasz said the jury could not consider the final message from "Josh" to Megan — "The world would be a better place without you" — because it was sent via an instant message program outside MySpace and wasn't "interstate" communication. "It would have been helpful if it could have been considered," Kunasz said.

Somebody please remind me why Megan's family doesn't have an IIED claim vs. Lori Drew et al.?
12.2.2008 11:28am
Smokey:
"I would have liked to see this lady go to jail to change the way Internet sites are run," said Kunasz, 25, a former hairdresser...
I suppose it never occurred to the 25-year old former hairderesser that regulation might be the responsibility of Congress, or that sending someone to jail in order to change a third party's behavior is sort of unfair.
12.2.2008 11:30am
themighthypuck (mail):
Isn't sending people to jail in order to change the behavior of third parties a pretty popular notion.
12.2.2008 11:40am
George Weiss (mail) (www):
anderson-the family has slam dunk civil claims...they either chose not to pursue them (yet) becuase of the criminal case or will not pursue them becuase lori drew's family would be unable to pay anyway,
12.2.2008 11:41am
JB:
Kunasz said the jury could not consider the final message from "Josh" to Megan — "The world would be a better place without you" — because it was sent via an instant message program outside MySpace and wasn't "interstate" communication. "It would have been helpful if it could have been considered," Kunasz said.


Would have been helpful in determining if Drew had defrauded Myspace?

Is anyone even pretending that the prosecution had anything to do with the specific charges?
12.2.2008 11:45am
hawkins:

Somebody please remind me why Megan's family doesn't have an IIED claim vs. Lori Drew et al.?


I assume they do. that would be the proper forum for justice to be served.
12.2.2008 11:48am
Behringer:

It didn't matter much whether Drew typed the messages to Megan, or whether it was Sarah or Grills, Kunasz said. Drew didn't stop it, and that was malicious.


I'm no criminal lawyer, but does this sort of "maliciousness" satisfy the elements for any felony alleged in the case? I don't see how the mother's failing to stop her daughter's taunts rises to the level of felonious maliciousness.
12.2.2008 11:51am
MLH:
Hearing juror comments unfortunately reminds me that "rule of law" and "jury trial" aren't on the same team.
12.2.2008 12:01pm
Ex-Fed (mail) (www):
I have never once spoken with jurors after a trial without being repelled by at least some of their comments.
12.2.2008 12:11pm
Anderson (mail):
I have never once spoken with jurors after a trial without being repelled by at least some of their comments.

What did Bismarck say about law and sausages? Don't ever watch either one being made?

lori drew's family would be unable to pay anyway

Driving them into bankruptcy could have its charms. And I wonder whether their homeowners' insurance policy, if any, would cover the claim? (Might have to go for *negligent* infliction of emotional distress if the policy excludes intentional acts.)
12.2.2008 12:23pm
xyzzy:
From a St. Charles Journal story, a year ago (Nov 13, 2007):
The Meiers do not plan to file a civil lawsuit. Here's what they want: They want the law changed, state or federal, so that what happened to Megan - at the hands of an adult - is a crime.


I've read at least one news report claiming that a Missouri two year statute of limitations has run, however a quick check of Missouri's code seems to indicate a five year limitation for IIED actions.
12.2.2008 12:40pm
Joe Bingham (mail):
Professor, it would be nice for the less educated among us (me) if you could comment on these things, as well as reporting them. If you have time. :)

I get the impression you think these things speak for themselves, but you give us way too much credit.
12.2.2008 12:43pm
Fub:
JB wrote at 12.2.2008 11:45am:
Is anyone even pretending that the prosecution had anything to do with the specific charges?
Surely the prosecutor does. Surely he's not gloating in private about making it legally possible to prosecute almost any citizen who ever used the internet.

The jury, as amply demonstrated by the "foreworman's" comments, had no earthly idea how the internet works, or how the law (usually) works. Website operators generally have no duty to prevent registration with false information. Website operators have a right to refuse service to such registrants.

If the charges in this case are upheld, then the next prosecutor can convict millions without needing to prove anything except that they used bugmenot.com to read a NY Times article, or that they gave a disposable sneakemail.com address to an online vendor in order to stop any avalanche of spam the vendor launches after they ordered something.

Prosecutors will fight to exclude any evidence as irrelevant which tends to show the defendant's intent for registering with false information in violation of a website's TOS. They will prevail. The misdemeanor statutes do not require intent.
12.2.2008 12:54pm
Nunzio:
The forewoman is a perfect prosecution juror.
12.2.2008 12:55pm
Dave N (mail):
Kunasz said the jury could not consider the final message from "Josh" to Megan — "The world would be a better place without you" — because it was sent via an instant message program outside MySpace and wasn't "interstate" communication. "It would have been helpful if it could have been considered," Kunasz said.
Obviously Ms. Kuasz's understanding of the commerce clause is different from what I learned in law school.

How could an instant message NOT be considered interstate commerce?
12.2.2008 12:59pm
wfjag:

Somebody please remind me why Megan's family doesn't have an IIED claim vs. Lori Drew et al.?

The only thing apparently lacking would be a defendant from whom the damages could be collected. Whatever money, savings and other assets Drew, et ux., had that could have been used to pay damages have likely been spent paying her criminal defense attorney.
12.2.2008 12:59pm
Guest101:
"Professor, it would be nice for the less educated among us (me) if you could comment on these things, as well as reporting them. If you have time. :)

I get the impression you think these things speak for themselves, but you give us way too much credit."

I think Orin is staying silent because he's involved in Drew's representation and probably planning out her appellate strategy right now. Under such circumstances it would be unwise for him to comment publicly on the case beyond posting media reports.
12.2.2008 1:00pm
xyzzy:
Is anyone even pretending that the prosecution had anything to do with the specific charges?
Surely the prosecutor does.

The spokesman for the U.S. Attorney in the Central District of California is not even pretending in public:
The U.S. attorney's office in Los Angeles took away something of a victory from what it believed was the nation's first cyber-bullying trial. "We wanted to bring some sense of justice to the untimely death of Megan Meier," said Thom Mrozek, spokesman for the office. "Now we have convictions against Lori Drew."


According to the Los Angeles U.S. Attorney's office spokesman, the conviction of Lori Drew brings “some sense of justice to the untimely death of Megan Meier.”

Not even a pretense from the prosecutor.

Not even a pretense.

Shameless.
12.2.2008 1:01pm
Don Miller (mail) (www):
My Mother was recently on the Jury of a Civil Trial.

The experiance of Jury deliberations was horrible in her case. There was one juror who admitted to the rest of the jury that she had personally experiance with the company and that "***** company deserved any ***** thing we can do to them".

Another juror said she owned her own business and that "all businesses carry insurance for this sort of thing and they won't be hurt by our decision here".

My Mom wrote a letter the Judge expressing her disappointment with the quality of the jury.

She has been subpoenaed to testify at a Motion for a Mistrial hearing in one week. Grounds? Juror Misconduct.
12.2.2008 1:02pm
xyzzy:
How could an instant message NOT be considered interstate commerce?


If the IM between two people —both in Missouri— is facilitated via servers physically located in the Eastern District of Virginia.

....And the basis for trial in the Central District of California is the physical presence of servers there.

Tricky, isn't it?
12.2.2008 1:09pm
ShelbyC:
Well, for better or worse we have trial by jury. The only suprising thing here is that, since judges have decided to reign that right in by saying "Jurors have to do A, B, &C", people are shocked when jurors don't do A, B, &C.
12.2.2008 1:10pm
Bill Poser (mail) (www):
Dave N,


How could an instant message NOT be considered interstate commerce?


I'm guessing that the reasoning goes like this: Lori Drew and Megan lived in the same state, so in the absence of something that routed communication between them out of state, communication between them would not cross state boundaries. Since MySpace is operated by an out-of-state company using facilities outside the state, posts on MySpace did constitute interstate commerce. Instant messages, however, did not go via the out-of-state MySpace site and therefore remained within the state.

Whether this reasoning is correct is another matter. There are issues of fact (how exactly were the IMs routed?) and of law (does communication between two parties in the same state count as interstate only if it necessarily passes through an out-of-state facility or is it sufficient that it incidentally leave the state?). But it does seem likely that what the jurors had in mind is the idea that MySpace posts go out of state but that IMs are direct.
12.2.2008 1:15pm
ShelbyC:

How could an instant message NOT be considered interstate commerce?


it didn't say interstate commerce, it said interstate communication. I'd imagine the language comes from the statute. And interstate communication in a statute outta be interpreted as, A in one state, B in another.
12.2.2008 1:17pm
xyzzy:
Instant messages, however, did not go via the out-of-state MySpace site and therefore remained within the state.


The instant message at issue, according to testimony, was sent via AOL instant messenger. AOL and AIM are well-known(*) to both reside in and physically locate their servers within the Eastern District of Virginia.

Lori Drew was, nominally, indicted for unauthorized access or exceeding authorized access to computers in the Central District of California. It was alleged that she violated MySpace's ToS—not the AOL or AIM ToS.

As I said above: Tricky, isn't it?

 

 

(*) Well, the EDVA is “well-known” if you happen to read a lot of 18 USC § 1030 and other “cybercrime” or spam cases ;-)
12.2.2008 1:37pm
Bill Poser (mail) (www):

The instant message at issue, according to testimony, was sent via AOL instant messenger. AOL and AIM are well-known(*) to both reside in and physically locate their servers within the Eastern District of Virginia.


I suspect that the location of AIM is not known to the jurors.
12.2.2008 1:45pm
Reader5000:
So do these laywers suck at voir dire or is the average American citizen off the street wholly unfit for jury duty, or both?
12.2.2008 2:01pm
Steve:
Some of you folks must be awfully shocked that Al Capone's real crime was not actually tax evasion.

Someone does a morally repugnant thing, and so they get prosecuted for whatever the law and the provable facts will support. This is hardly the first such case and it won't be the last.
12.2.2008 2:04pm
themighthypuck (mail):
What in the hell does interstate commerce have to do with this case? I thought the statute referred to interstate communication. Then again, I'm a paper pusher.
12.2.2008 2:05pm
OrinKerr:
Steve,

One difference is that Al Capone was actually guilty of tax fraud.
12.2.2008 2:17pm
Ben P:

So do these laywers suck at voir dire or is the average American citizen off the street wholly unfit for jury duty, or both?


Some of both I suspect, after all there were 4 jurors that stalled for the defense. You also seem to be forgetting that the prosecutor had a right to Voir Dire too. The forewoman and at least some of those 8 jurors were nearly perfect to the prosecution.

If that information were actually public it might be interesting to see what any jurors that were dismissed did to get dismissed.
12.2.2008 2:24pm
krs:
Joe Bingham writes:

Professor, it would be nice for the less educated among us (me) if you could comment on these things, as well as reporting them. If you have time. :)

I get the impression you think these things speak for themselves, but you give us way too much credit.

I don't speak for Prof. Kerr, but I imagine that he reports the Lori Drew news without much comment because he's a member of her defense team.
12.2.2008 2:25pm
Ben P:

According to the Los Angeles U.S. Attorney's office spokesman, the conviction of Lori Drew brings "some sense of justice to the untimely death of Megan Meier."

Not even a pretense from the prosecutor.

Not even a pretense.

Shameless.


I only have a limited amount of experience with prosecutors, but did you honestly expect that most of them don't habitually think like this?

If I had a dollar for every time I've heard "well at least we can get him/her on the drug charges" or some equivalent, I might not be rich, but I'd have a fat wallet.
12.2.2008 2:27pm
Joe Bingham (mail):
You're probably right; in that case I look forward to the case's resolution even more.
12.2.2008 2:29pm
Dave N (mail):
Themightpuck,

The reason I asked the question (which has received several responses) is that the federal "hook" for most federal crimes is a violation of the "Commerce Clause" (Article 1, Section 8). Thus, interstate communication is purportedly covered because it is a subset of interstate commerce.

I suspect that xyzzy is right in his analysis (I agree with it completely)--and while the Central District of California might claim jurisdiction because of the location of MySpace servers, the Eastern District of Virginia would be proper venue for AOL and AIM TOS violations (and of course, the Eastern District of Missouri, which would be proper venue for both, declined to prosecute).
12.2.2008 2:33pm
Steve:
One difference is that Al Capone was actually guilty of tax fraud.

Well, it certainly seems to me that Lori Drew was actually guilty of accessing MySpace without authorization. Or so the jury found, at any rate, even though I appreciate that you seem to be trying to impeach its verdict in the court of public opinion.

If a tragic death had not resulted, there never would have been a prosecution, in my opinion, and a jury probably would not have convicted even if there had been one. But it's entirely possible Al Capone wouldn't have been prosecuted for tax evasion but for his other misdeeds.

I think you've done a marvelous job framing the issues so as to persuade the Internet-savvy audience here that we are all at risk of prosecution any time we violate some provision in a website's fine print, but unless that adds up to a determination by the appellate court that the federal statute is void for overbreadth I'm not sure what the point really amounts to in a legal sense. Assuming for the sake of argument that the statute is valid, it's hardly unprecedented or uncommon for morally blameworthy people to get prosecuted for whatever fits the situation, even if it's arguably unrelated to the "real" crime.
12.2.2008 3:14pm
pete (mail) (www):

If a tragic death had not resulted, there never would have been a prosecution, in my opinion, and a jury probably would not have convicted even if there had been one. But it's entirely possible Al Capone wouldn't have been prosecuted for tax evasion but for his other misdeeds.


But people should be prosecuted for tax evasion, whatever their other faults or misdeeds. Same is true for when prosecuters convict people for drug crimes when they can not get other convictions (even though I am personally against drug criminalization, it is well established law and generally accepted policy affirmed by congress, presidents, the general public, etc.) The point is pretty much everyone knows these actions are crimes in and of themselves and most people agree that they should be crimes.

No one should not be prosecuted for violating TOS, whatever their other faults or misdeeds. Almost nobody really thinks this is a crime and the law, until this case, did not say it was a crime.
12.2.2008 3:48pm
pintler:

I think you've done a marvelous job framing the issues so as to persuade the Internet-savvy audience here that we are all at risk of prosecution any time we violate some provision in a website's fine print...


If the verdict survives, that will certainly be true as a matter of law. You seem to take comfort from the belief that no prosecutor will ever choose to send you to prison for violating a TOS.

I find that a cold comfort. Prior to this case I doubt 0.001% or the population would have thought that you could go to prison for having done a google search as a minor. Now we have this interpretation of the law. It's too late to say I should have obeyed the law - I have already broken it in years gone by, and am at risk of being imprisoned for past actions until the statue of limitations expires.

You may be comfortable that no prosecutor would charge *you*. I am not. My idea of the social contract is this: I obey even the laws I disagree with, like drug laws, and society leaves me alone, even if the prosecutor doesn't like me, because I publicly say the mayor is a fink, or start a recall petition for the prosecutor, or have an affair with his wife, or any other unpopular but legal action.

You think it's OK to stretch the law to step on people the majority doesn't like, without seeming to think you might someday be the one the majority doesn't like.
12.2.2008 3:53pm
xyzzy:
[I]t's hardly unprecedented or uncommon for morally blameworthy people to get prosecuted for whatever fits the situation, even if it's arguably unrelated to the "real" crime.


Perhaps it is common. But that doesn't make it right.

Speaking generally, I tend to hold civil litigants and their attorneys —plaintiffs and defendants equally— to a baseline ethical standard.

I believe that criminal defense attorneys should be held to a lesser standard. Obviously, things like intentional spoliation of evidence are still ethical no-nos. Yet I'm willing to cut criminal defense attorneys a whole lot of slack. For instance, I did not believe the story that H. Dean Steward told in court about Lori Drew's “participation”. But I don't think telling that story amounted to any sort of ethical lapse or wrongdoing. There are a lot of grey areas in criminal defense, and I believe a criminal defense is entitled to the benefit of the doubt.

Contrariwise, I believe public prosecutors should be held to a higher ethical standard. Not even the judge has an affirmative duty to do “justice”. But public prosecutors do. U.S. Attorneys have a sworn obligation to uphold the Constitution. Even the disagreeable parts, like “...impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law....”
12.2.2008 4:11pm
Steve:
No one should not be prosecuted for violating TOS, whatever their other faults or misdeeds. Almost nobody really thinks this is a crime and the law, until this case, did not say it was a crime.

Well, I sure don't think you should be accessing a website against the wishes of the site owner. Apparently your elected representatives in Congress don't think so, either. If almost nobody believes this should be a crime, then it shouldn't be hard at all to get that statute repealed.
12.2.2008 4:25pm
pete (mail) (www):

Well, I sure don't think you should be accessing a website against the wishes of the site owner. Apparently your elected representatives in Congress don't think so, either.


It is not at all clear that congress thinks so, at least as far as violating TOS. That is why this is the first ever prosecution like this even though there have been millions, if not billions, of previous interstate TOS violations since the law was on the books with congress not once complaining that their law was not being enforced.

Accessing a publically available website in a way that the maintainers of the site do not like should not be a crime if the access does no damage to the site or is not part of any other crime.
12.2.2008 4:47pm
Steve:
It is not at all clear that congress thinks so, at least as far as violating TOS.

Well, that's the legal question presented by the ongoing case, isn't it? You can say all you want that Congress never intended to criminalize such conduct, but ultimately that's for the courts to decide. Of course Congress could clarify at any point!

That said, no one seems to want to offer a working definition of what "unauthorized access" actually means. All they want to do is say well, clearly a TOS violation isn't what it means. But I think if you try to offer a reasonable definition, you'll see that it's not so hard to conclude that TOS violations are clearly excluded! I assume the defense had to offer an interpretation of the statute as part of their case and I'm curious to know what it was.
12.2.2008 5:27pm
einhverfr (mail) (www):
Themightypuck:

Isn't sending people to jail in order to change the behavior of third parties a pretty popular notion.


Yes, but the analogy would be like sending people to jail for eating hamburgers in order to change the way McDonalds does business. Normally if you want to change the way something is run, you punish people for doing analogous things.
12.2.2008 6:16pm
pete (mail) (www):

That said, no one seems to want to offer a working definition of what "unauthorized access" actually means.



Try this definition.

Unauthorized access is almost always interpreted as things such as using someone else's account or accessing private information without permission. This often includes getting past password barriers without having the consent of the person who set up the password such as accessing someones bank account online or their email without their permission. It also includes accessing a web site and causing damage without the owners permission. All of those things should be crimes.
12.2.2008 6:28pm
TruePath (mail) (www):

Unauthorized access is almost always interpreted as things such as using someone else's account or accessing private information without permission. This often includes getting past password barriers without having the consent of the person who set up the password such as accessing someones bank account online or their email without their permission. It also includes accessing a web site and causing damage without the owners permission. All of those things should be crimes.


That doesn't even come close to working. Damage to whom? How? Didn't Drew cause damage?

If I access facebook and message my friend to organize a boycott of facebook have I caused damage (I've cost them profits). What if I go to facebook and hit reload every 5 seconds to check my email? Did that cause damage by using up more of their service?

What if I go to your website and crawl it to download all the information on it? If I use up all your bandwidth is that damage? Is it damage when google crawls your website or only when someone who is competing with your site does it?

-----

Making a definition of what unauthorized access includes is very very difficult. In fact I think the whole structure of the law needs to be changed so that there are seperate rules for employees or other individuals having real authority and for members of the general public.

After all we do want to be able to prosecute employees who use their authorized access in ways other than they are given permission to do but it should not allow website owners to impose arbitrary legal duties on members of the general public.
12.2.2008 8:47pm
David Schwartz (mail):
TruePath: You demonstrate that the rule is too vague to support Lori Drew's conviction. Most people would agree with you.

The key to unauthorized access is that the operation you perform is one that you are not authorized to perform, through some trick. It is analogous to trespass or theft.

Yes, it's sometimes a hard line to draw. If there's a sign that says "no trespassing" and you take one step on the lawn to get your ball back, maybe a formal demonstration of trespassing might include that when it shouldn't.

Every situation in which we have to draw lines is tricky. But there's no way to avoid laws that require us to draw such lines, and that doesn't change the fact that there are some cases that are clearly on one side of the line or the other.

Using your authorized access rights to do something the site owner would not wish you to do is not unauthorized access.

You are certainly right that no simple definition of "unauthorized access" will work as a litmus test to say "yes" or "no" to every set of facts. But the same is true for "murder" or "theft", and we have no problem with making those crimes.
12.2.2008 10:17pm
D Palmer (mail):

I suppose it never occurred to the 25-year old former hairderesser that regulation might be the responsibility of Congress, or that sending someone to jail in order to change a third party's behavior is sort of unfair.

I suppose it never occured to condescending commenters that your typical American still thinks that court is supposed to be where people go to obtain some sort of justice.

I understand that that is not the way the world actually works, but save your snotty I'm so much better than this ignorant hairdresser comments.

The people in that jury room wanted Lori Drew to be severely punished for her despicable actions. That does not make them yokels deserving of your contempt.
12.3.2008 1:36pm
juris imprudent (mail):
The people in that jury room wanted Lori Drew to be severely punished for her despicable actions. That does not make them yokels deserving of your contempt.

Actually yes it does. This was a case built on little law and lots of prejudice, and that is precisely what the fore-person exhibits.

The proper venue for justice in this case was civil court, not a federal criminal proceeding.
12.3.2008 5:55pm
wfjag:

I suppose it never occured to condescending commenters that your typical American still thinks that court is supposed to be where people go to obtain some sort of justice.

No, D Palmer, most of the commentators here are attorneys, who long ago were disabused of the notion that you go to court "to obtain some sort of justice." You go to court to have the law applied to facts as between the parties. I see the comments more in line with a recognition of lost innocence of the commentator than being condescending. Before law school and practicing, most of us did think you went to court to obtain some sort of justice, and that was part of our motivation to become attorneys.
12.3.2008 5:59pm
D Palmer (mail):
wfjag,

I understand that most of the commenters here are lawyers (I am not).

I also understand that courts are for enforcing the laws as written.

But while You, I, and the other commenters here understand that, a large percentage of the general population do not. And why should they? What part of high school or most undergraduate programs cover the difference between criminal and civil actions?

That juror does not deserve to be held in contempt by the lawyers who read and comment on this blog simply for not knowing something that most people don't know.

Save your contempt for the prosecution who brought this case and the judge who must have done a VERY poor job of issuing instructions and making sure that the jury understood the law(s) they were being asked to apply and that they were not there to render a verdict on Drew's behavior towards the young woman.
12.3.2008 6:34pm
TruePath (mail) (www):
David Schwartz:

First, I was mostly replying to the commenter above who claimed

Yes, things like murder and theft can't be given simple bright line style definitions. However, these concepts map cleanly onto our intuitive moral responses making it possible to use them well in a court. In particular murder is an attempt to capture our pretheoretic notion of morally outrageous killing. Sure, trying to capture that notion in an explicit definition is nearly impossible but that doesn't cause too much of a problem because were just trying to capture a concept that most of us already share and make it a bit more precisce. This is the same with theft.

The term "unauthorized use" is that it lumps together what we would intuitively classify as morally distinct types of behavior. We can't make a good law using this term because the term covers both hard core hacking as well as guessing the password on your girlfriend's laptop and checking her email to see if she's cheating. Maybe both should be illegal but they shouldn't have the same penalty or be understood using the same terminology. Moreover, not only does this make it a bad law but people have a hard time grasping the meaning of words that don't map nicely to the concepts they have in their head.

Another problem with something like unauthorized access to a computer is that computer use is still sufficently novel that we don't have a good societal grasp of what is and is not acceptable behavior nor when unacceptable behavior crosses the line from simply bad manners to something we feel deserves punishment.

---

Of course I think the standard process of judicial interpretation and congressional review will eventually make the notion precisce (or substitute a new one) but only by changing the actual meaning of the term.
12.4.2008 5:35am
wfjag:
D Palmer:
The Founding Fathers (most of whom were not attorneys) were well educated in the Classics and history. "Who guards the Guardians?" is a recurring question. In addition to being a common law right, trial by jury addresses the problem of allowing a specialized legal profession to arise. Simply put, trial by jury is to put a brake on the tendency of "justice" to become "just us."

Still, also common in human nature is the resort to cynicism when experiencing the loss of innocence.
12.4.2008 11:35am
Ryan Waxx (mail):

understand that most of the commenters here are lawyers (I am not).

I also understand that courts are for enforcing the laws as written.

But while You, I, and the other commenters here understand that, a large percentage of the general population do not. And why should they?


To avoid going to jail, to cite one major reason. If there are people stuck in a fantasy land where Justice is To Be Done regardless of what the laws say, then that's an argument for educating them, not for removing the rule of law in order to more closely match the fantasy world the public believes in.
12.5.2008 9:09am

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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.