This article first appeared in the St. Louis Beacon: The prosecution of Lori Drew in the MySpace cyberbullying case appears to be the first time that a federal prosecutor has tried to make it a federal crime for a computer user to violate one of those "terms of service" agreements that no one reads. As despicable as Drew's alleged conduct was, the prosecutor's legal theory would make most of us federal felons.
In addition to questions about prosecutorial overreaching, the indictment raises constitutional questions because anonymous speech is protected by the First Amendment.
U.S. Attorney Thomas P. O'Brien acknowledged in announcing the indictment last week that this is the first time the Computer Fraud and Abuse Act has been used in a social networking case. In the past, it has been used in hacking cases.
Orin Kerr, writing on volokh.com, argues that the indictment should be dismissed. Computer users violate terms of service agreements dozens of times every day. The Drew indictment would theoretically criminalize those actions.
"This case involves a terrible tragedy," the expert in computer law from George Washington University wrote. "I think what Lori Drew did is truly despicable. But the government's legal theory ... is very weak. Legally speaking, the prosecution is a real stretch. ... Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon."
Reading the indictment demonstrates what a stretch O'Brien is making. The indictment says that the MySpace terms of service agreement was "readily available" to all users. The problem is that O'Brien has to prove that Drew intended to violate the agreement. Saying it is readily available may not prove that Drew intended to violate the agreement. Almost no one reads the agreements before signing on to a site.
As Kerr wrote: "The ... crime requires the government to show that Drew intended to violate the Terms of Service ... it must have been Drew's conscious object to have violated the TOS. But here there is no evidence that Drew even read the TOS. Most people don't, of course; I would be surprised if 1 person in 100 actually tried reading it. If Drew wasn't aware that she was violating the TOS, she couldn't be exceeding her authorized access intentionally."
Kerr goes on to point out that "Paragraph 11 of the indictment lamely notes that a copy of the TOS was 'readily available' to MySpace Users if they went looking for it, clicked the link and read it. But the statute requires intent, so whether the TOS was 'readily available' is irrelevant."
The First Amendment problem that arises is that anonymous speech has been protected since the time of the founding of the nation. The Federalist Papers were written anonymously. In 1995, the U.S. Supreme Court upheld the right of a pamphleteer, Margaret McIntyre, to distribute leaflets anonymously.
McIntyre's pamphlet opposing a municipal tax increase was truthful and didn't have the horrible consequences of the Drew case. Quite a few legal commentators have argued that the cases of cyberbullying justify moving away from the McIntyre case's protection of anonymous speech. Megan Meier is not the only teen victim of cyberbulling. Kristin Helms, 15 of Orange County, Ca., committed suicide after she had sex with a 27-year-old man she had communicated with through MySpace. Helms' parents are suing MySpace for negligence for failing to police its site adequately.
As for the future, the Missouri Legislature passed a new law last Friday intended to address cyber harassment cases like that of Megan Meier. The official summary of the law says a person commits the crime:
1) By knowingly communicating with another person who is, or who purports to be, seventeen years of age or younger and in so doing, and without good cause, recklessly frightens, intimidates, or causes emotional distress to such other person; or
2) By engaging, without good cause, in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the person's age.
An adult who harasses a person under 18 is guilty of a Class D felony.
Read the indictment (PDF)