My MySpace profile lists my age as 90. I did this at some point in 2005 to avoid the amount of messages I was receiving from men using the site to find prospective dates. This is my choice, and one that worked very well for me, even if I was, in fact, in direct violation of MySpace's terms of service, which state that all users must submit “truthful and accurate” information about themselves.
Imagine a world where a site's terms of service were enforceable by law. A world where my convenient lie about my age amounted to “unauthorized access” of MySpace servers under the Computer Fraud and Abuse Act—which was created in 1986 to deal with computer hackers. Under this act, the infraction could make me a felon.
It almost happened.
The case that would have set the precedent was that of United States v. Lori Drew, otherwise known as the case of the MySpace Mom.
Lori Drew, a Missouri mother to a teenaged daughter, was concerned about alleged rumors being spread by Megan Meiers, a friend with whom her daughter had had a falling out. She, her daughter and an employee of hers, Ashley Grills, created a MySpace account for a fictitious boy named “Josh Evans” and used it to befriend Meiers, allegedly for the purpose of getting information from her regarding Drew's daughter. The messages, which began as friendly, quickly became cruel to Meiers, eventually leading the girl, who had been diagnosed with depression, to commit suicide.
The county prosecutor, Jack Banas, who reviewed the case, declined to press charges. According to Banas, there was no evidence that Drew had the criminal intent to harass or stalk Megan; more importantly, her behavior didn't violate any Missouri law. The same conclusion was reached by the local federal prosecutor. The result from the public and media was outrage, eventually leading California-based attorney Thomas O'Brien to step in, claiming that California had jurisdiction in the case on the grounds that MySpace's servers were located in Beverly Hills.
Early last year, a federal grand jury indicted Lori Drew on one count of conspiracy and three counts of accessing protected computers without authorization under the Computer Fraud and Abuse Act. The charge of “accessing protected computers” was related to Drew's breach of MySpace terms by creating a fictitious profile. In November, Drew was convicted of three counts of accessing protected computers, but the jury acquitted her on three felony charges and a count of conspiracy.
The case had the blogosphere holding their breath until Thursday, when US District Judge George Wu, who had delayed Drew's sentencing in May of this year to review the testimony of prosecution witnesses, overruled the jury and directed acquittal of all charges.
UR DOIN IT RONG
There is no question that what Drew did is shameful—even criminal. Cyberbullying is a very real, very malevolent form of abuse. The problem here is that there are no real laws in place to prosecute people who engage in this kind of harassment online.
The case against Drew did not fail because she is not guilty—it failed because it relied so heavily on the notion that violating MySpace’s terms of service was tantamount to computer hacking and thus a breach of the Computer Fraud and Abuse Act (which charges anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains... information from any protected computer if the conduct involved an interstate or foreign communication”).
This precedent, while helpful in punishing Lori Drew for her reprehensible behavior, spells disaster for everyone else using sites without adhering to their respective terms of service.
“It basically leaves it up to a website owner to determine what is a crime,” said Wu. “And therefore it criminalizes what would be a breach of contract.”
Wu's take echoes what many critics of the case have been saying for months, among them the Electronic Frontier Foundation (EFF), Center for Democracy and Technology, and the Heritage Foundation.
In an amicus brief filed by the EFF in conjunction with the Center for Democracy and Technology, Public Citizen and 14 law professors, the implications to the free speech of US citizens using the web was highlighted.
The brief had other examples of criminal misconduct under this definition: a married person using the services of Match.com could be prosecuted by using the site for breach of their terms, which state that all users must be single or separated to use the site; a minor under the age of 18 using Google could also be prosecuted for violating the search engine's terms of service; and anyone who prefers to keep their identity anonymous to exercise their First Amendment right of free speech while using sites that require they submit “truthful and accurate” information about their persons to do so, as well.
Andrew Grossman, senior legal policy Analyst in the Center for Legal and Judicial Studies at the Heritage Foundation, authored a memorandum calling it “overcriminalization,” adding that per MySpace's terms of service, which also state that content which “provides any telephone numbers, street addresses, last names, URLs or email addresses” is also a violation. That means that sending your friend a message with your phone number or even sharing a link to this article—under the precedent set by this case—would have been a breach of agreement and a criminal offense under the Computer Fraud and Abuse Act.
Grossman elaborates on the complexity of emotions surrounding the issue:
It is a legal cliché that “Hard cases make bad law”—that is, that courts are too often tempted by emotional facts and sympathetic parties to render decisions without thinking about the law they are making and its effect on future cases. The same could be said of the recent development of the criminal law: Legislators, prosecutors, and the public seem to believe that every bad act done is a legal wrong, punishable just as traditional crimes like murder and theft and rape are punished.
But too often they overlook the far greater differences between traditional crimes and these new offenses. Pushing the criminal law beyond its historical bounds carries consequences that may not be apparent when the public mood is hot and vengeful, and only later is the result apparent: bad law. This pattern is repeated nearly every time that Congress passes a narrow law to target some unlikely, newsworthy wrong or slight deviation from productive behavior.
The case of housewife Lori Drew fits the pattern perfectly. Drew was indicted under a federal anti- computer hacking statute for impersonating a young man on MySpace to gain the trust of an emotionally troubled teen, Megan Meier, who killed herself after the cruel joke spun out of control. The case contains all the hallmarks of overcriminalization and illustrates all of its common consequences:
- The decline of mens rea (guilty mind) requirements as a protection against unfair criminal liability;
- The arbitrary nature of modern criminal offenses that provide citizens with no notice that their conduct may be illegal;
- Extremely broad liability that threatens to make millions of honest citizens criminals;
- Politics and public opinion trumping ordinary prosecutorial discretion and traditional notions of justice; and
- The threat to liberty, the rule of law, and our civil society.
Drew's conduct was irresponsible, but it was not criminal. It may deserve social sanction, already dispensed in great quantity, and perhaps civil liability to Megan Meier's parents. But if Drew is convicted under criminal law, virtually every Internet user will face the consequences.
Growing up, my father taught me to read all the fine print—always. And I do, whether it's a social networking site or the terms of my insurance, I read. I don't always follow the terms (as in the case of my age on MySpace), but I read—at least while signing up. But how many sites regularly update their terms? In this ever-changing world, is it fair to expect everyone to read everything always? Even I don't have the time to keep up—and I try. Is it fair to make it punishable by law?
“That the L.A. prosecutors were more 'creative' in charging than their Missouri counterparts is no answer, for the principal purpose of the criminal law is voluntary deterrence, which is built atop certainty,” says Grossman. “That such creativity in charging is possible speaks to the great overbreadth of the criminal law in general and the vagueness of the statute in particular. A criminal charge that comes as a surprise simply demonstrates that the law is unclear, has provided insufficient notice, and has failed in its purpose... such prosecutions decrease respect for the law across the board. As Professor John Coffee has explained, 'The criminal law is obeyed not simply because there is a legal threat underlying it, but because the public perceives its norms to be legitimate and deserving of compliance.'”
Yes, bullying is a major problem, both for children and adults and yes, the web, like any tool, has made it easier to be made a target. But it seems to me that this is not the way to go about creating a safer, happy environment for everyone. I am in accord with Grossman: whatever laws are put in place to protect citizens from this sort of reprehensible behavior must be known and understood as such, and not come at the expense of individual freedom.
“Though there is some question about Drew's involvement in the meanest messages sent to Meier, even in the kindest light, her actions were irresponsible and deserve social, and perhaps civil legal, sanction,” Grossman writes in his brief. “That does not mean, however, that she did anything that is or should be a crime. In the harshest light, the accusations against her do not rise to that level. If all of the allegations against her are true, she treated a vulnerable teenage girl with cruelty and a malign heart. But kindness and compassion are not things that our society enforces by law, nor could it do so.”
Even so, Missouri and other states have introduced legislation to criminalize what the National Crime Prevention Council and lawmakers call “cyberbullying”or use of the “Internet, cell phones or other devices are used to send or post text or images intended to hurt or embarrass another person.” These bills, unfortunately, are murky at best and subject to enough legal interpretation to make them difficult to stand First Amendment scrutiny.
For now, it seems we're on our own to educate our children about how to handle bullies in the playground and in the comfort of our own homes and to inculcate in them a sense of decency and decorum in communicating their negative feelings toward one another in a manner that is conducive to resolution and not abuse.
As it stands, that may not be a bad thing. To quote Benjamin Franklin, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”
AROUND THE WEB
In the excellent piece by fellow contributing editor Nordette Adams explores the deeper lessons we can take from this: "The problem is perhaps that well-centered adults are in short supply and that our children are often too much like us, too self-centered, too vindictive, and too scared to accept themselves with love."
Internet cruelty is a topic I feel passionately about. In Trolls and LOLz, I talk about the effect of cyberbullying on some of the brightest minds in blogging today. Later, in All The Rage Online, I elaborate on the horrifying but very real aspect of online life that I like to call “malwebolence.”
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