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Mixed verdict in Lori Drew cyberbully case leaves many questions unanswered

This article first appeared in the St. Louis Beacon, Nov. 26, 2008 - The mixed verdict in the Lori Drew cyberbullying trial in Los Angeles won't be thelast judgment on the controversial prosecution of the St. Charles County woman for her involvement in sending MySpace messages that mayhave led to the 2006 suicide of 13-year-old Megan Meier of Dardenne Prairie.

The jury's compromise verdict - convicting Drew of misdemeanors but not felony charges - leaves many unsatisifed. Civil libertarians continue to think that federal prosecutors abused their authority inbringing the novel prosecution, while others wanted to see Drew serve prison time. Drew, 49, could face three years in prison but first-time offenders usually receive probation instead. Prosecutors still could seek a retrial on the felony conspiracy count that could have led to a long prison term. The jury deadlocked on that charge.

The unprecedented application of the federal Computer Fraud and Abuse Act (CFAA) to prosecute Drew has elicited widespread complaints from media lawyers and Internet freedom advocates. U.S. District Judge George Wu has put off decisions about legal objections raised by Drew's lawyers. He hasn't ruled on whether CFAA is unconstitutionally vagueor whether the prosecution proved its case. If the judge finds that evidence of intent was insufficient, the jury's guilty verdicts on the misdemeanor charges would be overturned.

The CFAA was passed to prosecute computer hackers. Mark Sableman, a media law expert at Thompson Coburn in St. Louis, says the law has occasionally been used beyond the classic hacker situation. It has been use against people who access a computer without authorization to steal or alter data. But in an email comment before the verdict, he questioned whether the law could be used in a criminal prosecution of a person for disseminating "inappropriate" content on a social networking site that encourages users to post content.

The prosecution's theory in the case was that Drew had violated the CFAA by violating the terms and conditions imposed by the MySpace website, and that she used the site to inflict emotional harm on Meier.

Critics of the prosecution - such as Daniel J. Solove a law professorat George Washington University - say that there are at least two problems with this theory.; One is that the law is too vague in that it did not put people on notice as to what conduct was illegal. Before the Drew prosecution, few if anyone would have guessed that violating the terms and conditions of a website could be a federal crime. Most people don't even read the terms and conditions.

In addition, critics say the federal prosecutor's overzealous use of the law essentially turns over to websites the decision of what conduct is illegal. It would be a crime to violate whatever rules are set by the websites in their terms and conditions.

The Electronic Frontier Foundation has maintained from the beginning that the prosecution of Drew could have "dangerous ramifications" for use of the Internet because most users don't read the terms and conditions for the use of websites. Under the theory of the case, EFF says, prosecutors could go after anyone under 18 who uses the Google search engine because the terms and conditions for that search engine require a person to be over that age. EFF and other organizations filed a motion before trial asking the judge to throw out the case.

Judge Wu put off ruling on the legal issue of whether the CFAA is unconstitutionally vague. At the end of the prosecution's case he also put off a decision on whether the government had presented enough evidence for a conviction.

Testimony showed that Drew had not set up the MySpace account or sent key messages. Those actions were taken by Ashley Grills, who worked for Drew and was the prosecutor's chief witness. The defense argued that this meant that Drew could not have intentionally violated MySpace's terms and conditions.

But proof of criminal intent often is circumstantial. Prosecutors maintained that the evidence demonstrated that Drew knew how the MySpace account was being used and that she realized what she was doing was wrong.

Judge Wu will now have to decide whether the evidence at trial showed that Drew acted intentionally, with knowledge of the wrongness of her actions. If, on the other hand, he finds that Drew's actions were merely negligent or reckless, he will overturn the convictions onthe misdemeanor counts.

Wired story on verdict.

Volokh Conspiracy explanation of meaning of verdict.

Volokh Conspiracy with links to defense motion to throw out the case and government response.

Law Bites explanation of Judge Wu's delay in ruling on motions.

Electronic Frontiers' criticism and legal brief.

Concurring opinions' criticism of ambitious prosecutor misusing unconstitutionally vague federal hacker law.

EFF amicus brief challening law (pdf)

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