9.1.11 Overreach by Prosecutors

If you are honorable, you’re almost certainly free from the risk of what follows. But when the laws get twisted to take down someone everyone dislikes, that’s when we should all pay attention to our own freedoms.

In particular, when public officials start talking about “protecting the children,” you may be hearing the standard code words for whacking civil liberties—and in the Internet age, core liberties such as free speech are in jeopardy.

The ugly case of Lori Drew is one example. Drew’s daughter was involved in a conflict with Megan Meier, a teenage neighbor. Drew and several other people created a bogus MySpace account for a fictitious teenaged boy who wooed and then rejected Meier. Soon after, Meier committed suicide at her suburban St. Louis home. One thing is absolutely clear in this sordid case: Drew and her helpers in this sleazy scheme were heartless, and have been justly pilloried for their acts. But was this a prosecutable offence?

Officials in Missouri had no cause for criminal action because no state law fit the case. But federal prosecutors hauled Drew off to Los Angeles, headquarters of MySpace, and tried her for violating a federal law, the Computer Fraud and Abuse Act (CFAA), which had been used in the past to go after hackers who’d plundered others’ computers for financial gain. Using a computer, prosecutors said, Drew had:

[I]ntentionally accessed and caused to be accessed a computer used in interstate commerce, namely, the MySpace servers located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of interstate commerce obtained and caused to be obtained information from that computer to further tortious acts, namely intentional infliction of emotional distress on [Meier].

As the Citizen Media Law Project’s Matt Sanchez explained, Drew’s alleged crime was, boiled down to the actual law as opposed to the emotional element of the case, “nothing other than failing to submit ‘truthful and accurate’ registration information when creating a MySpace profile. She would have been no less liable for misstating her height.”

Think about this. When using online registration systems, have you always, without exception, given utterly accurate information?

A jury acquitted Drew on a felony charge but found her guilty on a less-serious misdemeanor violation of the CFAA. But the judge overturned even that; as he explained in his ruling, allowing Drew’s verdict to stand would have made everyone who’s ever violated a terms of service agreement, no matter how minor the violation, guilty of a crime as well.

The prosecutor, Thomas P. O’Brien, didn’t care. As Wired News reported, he was proud of himself. Sure, he said, using the CFAA was “a risk,” but his office “will always take risks on behalf of children.”

The larger risk was, in fact, to liberty. O’Brien’s willingness to twist a law to serve even a well-meaning end deserves contempt, not praise, because he’s supposed to know better. We are fortunate that the judge rescued the rest of us—not just the despicable Drew—from a prosecutor whose legal theories would have made criminals of just about everyone who has ever signed up for just about anything online.

Can the law handle a case like Drew’s? Or what about the September 2010 suicide of a Rutgers University student who jumped off the George Washington Bridge after a video of him and a male friend having sex was posted online? Two fellow students were charged with invasion of privacy.

Harvard law professor John Palfrey—a friend and former colleague of mine when I was a Fellow at the Berkman Center, where he was executive director—advises caution. He wrote in the New York Times of the Rutgers case and a Massachusetts suicide also attributed to cyber-bullying:

In using the law to address this problem, we need first to examine whether the law is sufficient in this new hybrid online-offline environment to discourage this kind of behavior and whether we are acting in a just manner with respect to those who are harmed and those who do the harm. Second, we need to ask whether our law enforcement officials have the support they need to get the job done.

Most states have a series of laws that address criminal harassment, whether it happens online or offline. These laws ordinarily permit both criminal enforcement by the state and civil lawsuits. One challenge associated with these laws is to not criminalize behavior that amounts to ordinary teenager-to-teenager nastiness while drawing a line well before the kinds of behavior that might lead to a teenager’s suicide.

Again, anyone who is honorable isn’t going to do this kind of thing. Still, we need to be aware of so-called fixes to essentially moral problems—fixes that could make it harder for everyone to participate in our new collaborative environment.

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