She Deserves Worse

I’ve almost finished 40-odd case briefs about United States v. Drew, the criminal prosecution of the Missouri mother whose pseudonymous MySpace harassment of 13-year old Megan Meier led to Meier’s suicide.  Last November a jury convicted Drew of three misdemeanor violations of the Computer Fraud and Abuse Act, but in July the trial judge dismissed all of the charges after ruling that the CFAA counts were void for vagueness on the facts of the case.  I agree with the ruling–it was not a close call on the law–but after reading so many times about Drew’s creation of the fictional 16-year old “Josh Evans” and her remorseless, manipulative cruelty towards a barely-teenage girl who Drew knew suffered from psychological problems, I want to believe there is a special place in hell-on-earth for Drew.

The Residue of Design

“Luck is the residue of design” said Branch Rickey.  Last Friday I wrote a chapter on the Computer Fraud and Abuse Act for my Internet law casebook.  The chapter’s first two cases deal respectively with successful CFAA prosecutions for the Morris Worm and hacking.   Following these I want to present the problematic recent CFAA prosecution of Lori Drew for creating a false MySpace profile in the infamous Megan Meier suicide.  A federal jury  convicted Drew last November of various misdemeanors, but in early July presiding judge  George H. Wu provisionally acquitted Drew of all charges, subject to his issuance of an opinion explaining his ruling.  Great stuff–a high-profile, emotionally-charged case with a dramatic legal turn that fits my chapter’s theme.  There was one problem:  as of Friday morning Judge Wu had not issued his opinion and the chapter is incomplete without it.  I created a Google Alert for <Lori Drew acquittal decision Wu>, then spent the weekend preoccupied with how to fill the remainder of the chapter while waiting for the opinion.

Reading email this morning before researching the CFAA to find another case I saw this Google Alert in my inbox “Lori Drew Opinion Handed Down.”  The alert contained a link to Orin Kerr’s 8/29 Volokh Conspiracy post, which in turn linked to the opinion.  BINGO!  The optimal solution to my problem, thanks to my creation of an Alert and Kerr’s personal interest in the case.  Kerr, who worked pro bono on Drew’s defense, noted in Saturday’s post the strange press silence about the judge’s opinion. As of today, Monday, I’ve not seen it mentioned elsewhere.

The real estate developer for whom I worked often said “I’d rather be lucky than smart.”  Sometimes the tiniest bit of smarts can generate its own luck.

Bad Facts Make Bad Law

A Los Angeles jury convicted Lori Drew of three misdemeanors for her role in the events leading up to the death of Megan Meier. .  It did not convict her of accessing a computer without authorization to inflict emotional distress, a felony, or of conspiracy. Drew could receive up to one year in prison and a $100,000 fine on each conviction of accessing a computer with authorization.  The prosecution’s theory was that Drew, along with her 13-year old daughter and another young woman, violated the MySpace Terms of Service by creating a false identity, Josh Evans, to harass Meier, and that creating the fraudulent identity breached the Computer Fraud and Abuse Act.  It’s a novel and troubling theory because the CFAA is typically used to prosecute those who hack security to gain access to a computer.  Conflating use of a false identity or other violation of a web site’s terms of service with criminal conduct under the CFAA creates a powerful tool to use against behavior that most Internet users would not consider criminal.

Lori Drew is guilty of many things–being a helicopter parent, having the emotional maturity of a thirteen year-old, callous cruelty–but I don’t agree with these convictions.  If violating terms of use is to be a criminal act, Congress should say so.