Security

Cyber Bullying Case Officially Dismissed for Vagueness

The judge who oversaw the Lori Drew cyber bullying case has released his final ruling explaining why he overturned her misdemeanor convictions. U.S. District Judge George Wu had tentatively ruled in July to acquit Drew and throw out the three misdemeanor convictions against her, with the understanding that the ruling would not stand until he […]

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The judge who oversaw the Lori Drew cyber bullying case has released his final ruling explaining why he overturned her misdemeanor convictions.

U.S. District Judge George Wu had tentatively ruled in July to acquit Drew and throw out the three misdemeanor convictions against her, with the understanding that the ruling would not stand until he issued a written decision.

The latter was filed late Friday.

Wu ruled that Drew could not be guilty of violating the Computer Fraud and Abuse Act for merely violating a website's terms of service.

Wu said the government's interpretation of the CFAA was unconstitutionally vague. Letting that interpretation stand would ultimately have given prosecutors the power to criminally prosecute anyone for violating a website's terms of service, Wu reasoned, and "would convert a multitude of otherwise innocent Internet users into misdemeanant criminals."

The judge ruled that internet users would not have sufficient notice of what constitutes illegal activity, since terms of service are determined by the owner of a web site, are generally overly broad and are subject to change at any time without sufficient notice to users.

"One need only look to the [MySpace] terms of service to see the expansive and elaborate scope of such provisions whose breach engenders the potential for criminal prosecution," he writes. Wu cites some examples of MySpace users who would be open to prosecution for violating the sites terms of service, such as "the lonely-heart" who submits intentionally inaccurate data about his or her age, height and/or physical appearance; a student who posts candid photos of classmates without their permission; and the mother of a Girl Scout who sends a group message to neighborhood friends on MySpace entreating them to buy her daughter's cookies.

Drew's defense attorney, H. Dean Steward, had unsuccessfully made similar arguments during pre-trial hearings in an effort to get the case dismissed, but Wu had let the case proceed. Wu pointed out in his final ruling that the turning point for him was the jury's acquittal of Drew on the felony charges and their conviction, instead, on lesser misdemeanor charges.

Drew, 50, had been charged with one felony count of conspiracy and three felony counts of violating the CFAA, all with the intent to commit a tortious act. She was accused of participating in a cyberbullying scheme against 13-year-old Megan Meier with the intent to cause emotional distress to the teenage girl, who later committed suicide.

The case against Drew hinged on the government’s novel argument that violating MySpace’s terms of service was the legal equivalent of computer hacking.

The jury convicted her last year of three misdemeanor charges instead, believing there wasn't sufficient evidence to indicate that she intended to cause emotional distress to Meier. The jury deadlocked on the fourth conspiracy charge.

At the July hearing in which Wu gave his tentative ruling, he told Assistant U.S. Attorney Mark Krause that if Drew had been convicted of the felonies, he would have let the convictions stand, and would have already sentenced her. But the misdemeanor convictions troubled him, because of the vague wording of the statute.

The case had its roots in a tragedy that began unfolding in September 2006 when, prosecutors said, Drew conspired to create a fake MySpace account for "Josh Evans" with her then 13-year-old daughter, Sarah, and a then-18-year-old employee and family friend named Ashley Grills.

Prosecutors alleged that Drew and the two others used the profile to lure Megan Meier into an online relationship with “Josh” to find out what Megan was saying about Drew’s daughter online. But in October, one of the group, writing as Josh, turned against Megan, and told her that the world would be a better place without her. Shortly afterward, Megan hanged herself in her bedroom.

Neighbors in O’Fallon, Missouri, the small town where the Drews and Meiers lived four houses away from each other, turned on Drew when her supposed complicity in the hoax emerged.

Missouri prosecutors sought to charge Drew with a crime, but were stymied by the fact that there was no federal statute against cyber bullying. O'Brien said on Thursday that Megan's death "cried out for someone to do something." And that's when he and other prosecutors in California devised the novel idea to charge her under the anti-hacking statute, filing the case in Los Angeles because this is where MySpace's servers are based.

MySpace’s user agreement requires registrants, among other things, to provide factual information about themselves, and to refrain from soliciting personal information from minors and using information obtained from MySpace services to harass or harm other people. By allegedly violating that click-to-agree contract, Drew committed the same crime as any hacker, prosecutors claimed.

But testimony in the case offered by prosecution witness Ashley Grills under a grant of immunity showed that nobody involved in the hoax actually read the terms of service. Grills also said that the hoax was her idea, not Drew’s, and that it was Grills who created the Josh Evans profile, and later sent the cruel message that tipped the emotionally vulnerable 13-year-old girl into her final, tragic act.

Wu's problem with the case, he said, lay in the lesser burden required for a misdemeanor conviction.

To convict Drew of the felonies, prosecutors would have needed to prove two things: that Drew accessed MySpace "without authorization," and did it for the purpose of committing a tortious act -- in this case, to intentionally cause harm to Megan Meier.

But for the misdemeanors, the jury just had to find that Drew obtained the unauthorized access. Wu said that language, standing on its own, was too vague to pass constitutional muster in this case.

"I don't see how the misdemeanor aspect would be constitutional," he said. "That is the issue I'm wrestling with at this time."

Wu also doubted that MySpace provided sufficient notice to members to hold them responsible. If a user didn't read the terms of service, how could he be held liable for violating it?

Photo: AP

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