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Los Angeles Times, USA Today Run Editorials Opposing Lori Drew Verdict:
Today both the Los Angeles Times and the USA Today are running editorials against the government's prosecution of Lori Drew under the Computer Fraud and Abuse Act. The Los Angeles Times editorial is titled "Government as CyberBully," and it argues that Judge Wu should grant our motion to dismiss:
  [T]he prosecutors' interpretation of Section 1030 would "criminalize the everyday conduct of millions of Internet users." The government should be particularly wary when the allegedly criminal activity is speech, even when that speech leads to something as tragic as Megan's death. Websites can and should do a better job of responding to cyber-bullying and other abuses of their terms of service, rather than relying on the federal government to do it for them. Wu reserved judgment when Drew's lawyer asked him to acquit Drew of the charges before the jury began its deliberations. He should grant that motion now.
The USA Today's editorial is titled "MySpace case bends the law":
  Drew wasn't convicted of driving someone to suicide or showing criminally poor judgment, but of violating the Computer Fraud and Abuse Act, which makes unauthorized use of a computer a crime.
  The law was written in the 1980s to deter computer hackers and has been revamped several times, but this was the first time it was used to punish cyberbullying. To find a way to charge Drew, prosecutors might have stretched the law too far and made potential criminals out of millions of Americans.
  Any Internet surfer is familiar with the ritual it takes to join many websites, including social networking ones such as MySpace, which is where the bullying occurred. You're presented with legalese known as the "terms of service" and asked to accept them. Most people never bother to read them, but by clicking "Yes" or "I accept," you've crossed a legal threshold. If you violate those terms — even if you have no clue what they are — you're not just breaking the website's rules, you also might be committing a criminal act. Drew was convicted of violating MySpace's terms of service.
  This could create millions of "criminals," because Internet users commonly violate terms of service for valid reasons. For example, people worried about identity theft or online predators often join websites under fake names, a practice explicitly prohibited by some websites, including MySpace.
  It's absurd to think that prosecutors busy with real crimes will comb the country looking for people who violate website policies, but it's a little less outlandish to imagine that a politically motivated prosecutor could take advantage of an overly broad law.
  . . . . [S]ince the Missouri tragedy shows how dangerous cyberbullying can be, it makes sense to update harassment laws to attack it directly. That could provide a way to hold the next Lori Drew liable — without making potential criminals of innocent people in the process.
  (Incidentally, click here for a prescient law review article that foresaw the governemnt's theory in the Drew case five years ago and explained the problems with such a theory.)

  In an effort to achieve balance, the USA Today has also run an essay in favor of the Lori Drew prosecution by Nick Akerman, an attorney at Dorsey & Whitney who appears from his firm bio to have built a civil practice relying on broad constructions of the Computer Fraud and Abuse Act. (Akerman is the co-chair of the Computer Fraud and Abuse Practice at the firm.) As far as I know, Akerman is the only self-described "expert" on the Computer Fraud and Abuse Act who actually supports the government's theory in the Drew prosecution. Akerman tries to make the case for the prosecution here.

  As an advocate in the Drew case, I'm certainly pleased by these editorials. It's not every day that two of the most important newspapers in the country take your client's side in litigation. And as a scholar of computer crime law, I'm also pretty amazed: I can't say I ever expected the LAT and the USA Today to run editorials on the proper construction of 18 U.S.C. 1030 -- and to get it right!
TNeloms:
Can Prof. Kerr or someone else please clarify what the judge's instructions to the jury were? That seems to be the key to the verdict, and to whether he is likely to grant the motion to dismiss.

The government's proposed instructions with respect to 18 U.S.C. 1030 were that a guilty verdict would require access in excess of authorization *for the purpose* of committing a tortious act. However, the jury seems to have found Drew guilty of unauthorized access *without* finding her guilty of the tortious act. Does that mean that the judge's jury instructions were even more harsh than the government's proposed instructions? That he instructed the jury that they could find her guilty of violating 18 U.S.C. 1030 without needing the tortious act?

If not, then I don't understand how the jury's verdict is possible. If so, then first of all that seems strange since it's even more than what the government asked for, and second of all it seems unlikely that he would grant the motion to dismiss if that is his interpretation of the law.
12.3.2008 11:05am
OrinKerr:
Tneloms,

The jury acquitted Drew of that offense, convicting Drew only of the misdemeanor lesser included offense of the unauthorized access alone. 1030(a)(2) is a misdemeanor without the enhancement of the access being in furtherance of criminal or tortious activity.

Also, I plan to have a post up soon on the jury instructions in the case.
12.3.2008 11:08am
TNeloms:
Got it. Thanks.
12.3.2008 11:22am
Aultimer:

Nick Ackerman:

The concept that Drew should not be held responsible if she did not read MySpace's terms of service is as absurd as arguing that if you default on your mortgage payments, your bank cannot foreclose on your house because you did not read your mortgage agreement.


Idiotic. The correct analogy is whether I should go to jail when I miss a payment on the mortgage I got through applying online.

I do think computer service providers should have the same kind of criminal law protections as brick-and-mortar entities, but this goes WAY too far.
12.3.2008 12:14pm
Fub:
From the Department of Inept, Inapt and Weirdly Constructed Analogies, the debtor's prison solution to the present mortgage backed securities meltdown:
Under the statute, website owners have the right, much like the property owner who posts a "No Trespassing" sign, to spell out, as did MySpace, what access or use is "unauthorized." The concept that Drew should not be held responsible if she did not read MySpace's terms of service is as absurd as arguing that if you default on your mortgage payments, your bank cannot foreclose on your house because you did not read your mortgage agreement.
Just have the federal government prosecute the mortgage defaulters and the problem will be solved.

Actually that was Ackerman's USA Today op-ed.
12.3.2008 12:19pm
Fub:
Aultimer -- great minds think along the same lines but cross in the mail, and all that. Heh.
12.3.2008 12:22pm
glangston (mail):
As to your amazement at the LA Times...well, even a blind pig can find an acorn, once in a while..
12.3.2008 12:37pm
Sigivald (mail):
The LA Times is "important"?

God help us all.
12.3.2008 12:41pm
David Schwartz (mail):
There are three key points in this case:

1) Can you intend to violate terms of which you are not aware?

2) Did the government criminalize violating a contract, so long as that contract claims it sets forth your authorized access to a protected computer?

3) Can the government criminalize such a contractual violation without running afoul of due process? And if so, did they in this case?

My answers are:

1) No. You cannot intend to breach a duty or agreement of which you are not aware. To prove you intended to breach the ToS, one must prove you were aware of the terms of the ToS. If MySpace wants to hold people responsible for breaching an agreement, it must make sure it actually has an agrement.

2) No. Prior to this case, that position would have been ridiculed. This was clearly an invented theory just for this case.

3) Yes, the government certainly could enact such a law. There are existing reasonable laws that have that effect. (Trespass laws for property open to the public are excellent examples.) But this law, because it was never intended to apply this way, doesn't have any of the safeguards such a law would need not offend due process requirements such as reasonable notice.
12.3.2008 1:11pm
Justin Levine:
Proves my point that, on occasion, trials SHOULD be tried in the press. Glad to see a defense counsel agreeing with that proposition for once. :-)
12.3.2008 1:16pm
einhverfr (mail) (www):
David Schwartz:

What sort of due notice requirements would you think would be necessary for contract violations of this type to be universally criminalized?

I personally think such criminal trespass laws might make sense if and only if appropriate notice was given to someone that their access to the service was being rescinded, and if after this, violations continued.

Otherwise, you have questions as to whether uploading "bad stuff" on youtube would be a crime and if so, what "bad stuff" means....
12.3.2008 1:22pm
Bill Poser (mail) (www):
I wasn't aware that USA Today ran editorials at all. It's almost like a newspaper.
12.3.2008 1:26pm
David Warner:
The Bush administration has brought many influential liberals home to more libertarian (traditionally liberal) views.
12.3.2008 2:07pm
Cornellian (mail):
Overly broad and vague federal criminal statutes are nothing new. These days, you can be prosecuted by a federal prosecutor for pretty much anything. If you're a nobody who has done nothing to attract publicity, you're pretty safe. If you're politically well connected, you block the prosecution through your connections or you purchase a pardon. If you're in between those two extremes, then you've just got to try to keep your head down and stay below the radar.
12.3.2008 2:19pm
Inane (mail):

Idiotic. The correct analogy is whether I should go to jail when I miss a payment on the mortgage I got through applying online.

I do think computer service providers should have the same kind of criminal law protections as brick-and-mortar entities, but this goes WAY too far.

I should think the correct analogy is whether you should go jail for taking out a mortgage in someone else's name.
12.3.2008 2:26pm
commontheme (mail):
The USA Today is against it? But what does People Magazine have to say?
12.3.2008 2:42pm
man from mars:
Cornellian, although "overly broad federal statues are nothing new," are we seeing an increase in high-profile prosecutions based on very broad theories of statutory interpretation?

Consider, for example, the prosecutions of Lay and Skilling (and others) based on the "theft of honest services" statute; the prosecution of Martha Stewart based on "obstruction of justice" for comments she made to investigators; the prosecution of Libby also based on "obstruction of justice" for comments made to investigators; the prosecution of O.J. Simpson for arguably stealing items he himself owned; the prosecution of Anderson Consulting for fraud; the prosecution of Clinton (in part) for perjury on the theory that he failed to object when his lawyer gave an incorrect interpretation of a stipulation of counsel.

I'm asking seriously, I'm not a legal historian. Are things changing?
12.3.2008 3:14pm
RebelRenegade:

Idiotic. The correct analogy is whether I should go to jail when I miss a payment on the mortgage I got through applying online.

I do think computer service providers should have the same kind of criminal law protections as brick-and-mortar entities, but this goes WAY too far.


I should think the correct analogy is whether you should go jail for taking out a mortgage in someone else's name.


I think this is less accurate. In fact we should throw out the mortgage thing altogether since that involves fraud and identity theft.

A better analogy would be one where you join some sort of online social club under a false (made up) identity against club rules and harass one of the members there with your made up personality.
12.3.2008 3:49pm
U.Va. Grad:
A better analogy would be one where you join some sort of online social club under a false (made up) identity against club rules and harass one of the members there with your made up personality.

I'm pretty sure that's not an analogy so much as what actually happened.
12.3.2008 4:52pm
Bama 1L:
man from mars, the Simpson case may not belong on your list. If this case had come before a medieval English court, the principle would have been the same: legal title does not authorize violent self-help in obtaining possession. If someone has something that is rightfully yours, you should go to the sheriff for help getting it back.
12.3.2008 8:25pm
drinkthec00laid (mail):
I think that in a broadly construed interpretation of the law, along w/ the fact that a "signed" document agreeing to terms of service &a promise not to violate a federal law, gives the prosecutor a reasonable grounds for prosecuting the defendant, as she had sufficiently culpable intentions when she bullied the victim.
12.3.2008 11:22pm
John Ralph Henry II:
You cannot intend to breach a duty or agreement of which you are not aware. To prove you intended to breach the ToS, one must prove you were aware of the terms of the ToS. If MySpace wants to hold people responsible for breaching an agreement, it must make sure it actually has an agrement.


No meeting of the minds, therefore no agreement. Thus no contract.

But, if there isn't any contract, then where does the authorization come from?

Can there be an implied authorization based on the fact that most people really don't read these terms? How much of traditional, settled contract law do you want to toss out in order reflect the actualities of today's consumer terms?

The consumer doesn't have bargaining power to negotiate terms. So why should they read them? Reading the terms won't change anything. Further, a savvy consumer knows that some of the terms are most probably unenforcable in their jurisdiction, provided they pay enough money for lawyers. The consumer just doesn't know which terms will be held unconscionable by the courts. And the consumer doesn't care to spend the money to find out until there's an actual dispute.

Right now, the law is mismatched with reality. Eventually, the law will have to bend. But is it wise to bend the law quickly? With this case?
12.4.2008 12:28am
Bored Lawyer:
Trespass seems the best analogy here. The website owner has the right to exclude others from its site -- or allow them on the site only on certain conditions (e.g. truthfully revealing one's name and identity).

If a landowner allowed the public to come onto his land, but only on the condition that the persons identify themselves truthfully, then those who use false identities would be trespassers.

Trespass is a criminal offense, albeit a minor one rarely prosecuted. The problem here is that the statute at issue was at first a criminal one aimed at computer hackers, and then civil remedy provisions were added on after the fact (for certain situations). It would be preferable if the two were separated.
12.4.2008 9:53am
John Ralph Henry II:
Trespass seems the best analogy here. The website owner has the right to exclude others from its site — or allow them on the site only on certain conditions (e.g. truthfully revealing one's name and identity).


If it's unilateral license or leave, then there's a subtlety involved: Conditions precedent versus covenant.

If it is a condition precedent to the unilateral license that the user provide truthful information, then there isn't a license in the absence of performance by the user. But, if it is merely a covenant, then it's just a breach of the license.

But trespass to land also illuminates a deeper issue of notice. Contrast trespass to land, or even chattels, with contemporary copyright: At least since the 1989 changes to U.S. law (and perhaps since the 1976 changes) it seems more-or-less reasonable that people should know that unauthorized “copying” is prohibited. “Copying”, as used here, is the legal jargon used for infringement of copyright, outside of non-origininality, de minimis, fair use, etc. etc.

But trespass to land requires clear notice. The default is that a person may walk up someone's front stairs to their porch. And the default is that a person may walk into an open store.

If trespass is the analogy, then there must be a clear notice: “Unauthorized access prohibited”.
12.4.2008 11:57am
xyzzy:
News Flash

Wired's Kim Zetter has posted the jury instructions in the Drew case. PDFs are linked from her story at Threat Level.
12.4.2008 4:21pm
Bored Lawyer:

But trespass to land requires clear notice. The default is that a person may walk up someone's front stairs to their porch. And the default is that a person may walk into an open store.

If trespass is the analogy, then there must be a clear notice: "Unauthorized access prohibited".


Two comments:
1. Depending upon how the website was configured, isn't it the case that at least some sites do provide clear notice. For example, some sites have a pop-up window requiring you to click your assent to the terms of use before they will let you on. That seems like adequate notice.

2. "The default is that a person may walk up someone's front stairs to their porch. And the default is that a person may walk into an open store."

These two examples illustrate that sometimes notice is not required but trespass is assumed. For a private house you may be permitted to walk up to the porch, but surely one cannot just walk inside without committing trespass. I don't think you need a "No Entry" sign for that -- we assume that most householders don't want you walking into their private homes. (A store has the opposite presumption.)

At least in some situations, it should be obvious that a website owner would not permit use of the site -- someone who uses a false name and comes onto the site for the purpose of harassing minor children, for example. That strikes me as akin to walking into a private home.
12.4.2008 4:35pm
John Ralph Patrick Henry II:
For a private house you may be permitted to walk up to the porch, but surely one cannot just walk inside without committing trespass.


If only that were the government's consistent and unyielding position in the cases of warrantless entry, search and seizure!

Alas, the writ of trespass has fallen quite far since the days of Entick v. Carrington and three other Messengers in Ordinary to the King.

Surely, you must admit that the courts today are simply unwilling to embrace your extremist views on trespass into a man's home.
12.4.2008 5:32pm
Philistine (mail):

Trespass seems the best analogy here. The website owner has the right to exclude others from its site -- or allow them on the site only on certain conditions (e.g. truthfully revealing one's name and identity).



As someone else pointed out in one of the other threads--this analogy, using the Government's theory, would mean that where a store posted a sign requiring shoes and shirts, the police could arrest anyone who came in without them on.
12.4.2008 6:15pm
David Schwartz (mail):
The key excerpt from the jury instructions is:

The phrase "exceeds authorized access" means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.


There seems to be several problems with this, the biggest of which is that the phrase "not entitled" is extremely vague and capable of many different interpretations.
12.5.2008 10:10am

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