November 26, 2008

Lori Drew not guilty of felony ... but convicted on 3 misdemeanors.

And there was a deadlock on the felony conspiracy charge.
[J]urors found Drew guilty only gaining unauthorized access to MySpace for the purpose of obtaining information on Megan Meier -- a misdemeanor that potentially carries up to a year in prison, but most likely will result in no jail time. The jury unanimously rejected the three felony computer hacking charges that alleged the unauthorized access was part of a scheme to intentionally inflict emotional distress on Megan....

The slap-on-the-wrist verdict is a rebuke to federal prosecutors, who elected to charge Drew federally even after authorities in Missouri -- where the hoax unfolded -- found that Drew's behavior did not violate any state laws at the time. Some legal experts and civil libertarians decried the prosecution as an abuse of computer crime laws.
Good. It was abusive.

ADDED: Orin Kerr -- one of Drew's attorneys -- explains the verdict:
The government's theory in the Lori Drew case is that it is a federal crime to intentionally violate the Terms of Service on a website, and that it becomes a more serious crime — a felony rather than a misdemeanor — if the Terms of Service are violated to further a criminal or tortious act. The tortious act the government alleged is intentional infliction of emotional distress, which in this case was alleged to have led to Meier's suicide.

The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website, and that Drew directly or indirectly did so, but it acquitted Drew of having violated Terms of Service in furtherance of the tortious act. That is, the jury ruled that Drew is guilty of relatively lower-level crimes for violating MySpacs Terms of Service (for being involved in the setting up of a fake MySpace account). It acquitted Drew for any role in inflicting distress on Meier or for anything related to Meier's suicide. The maximum allowed penalty for the misdemeanor violations are one year in prison for each violation, although the majority of federal misdemeanors result in a sentence of probation.
The phrasing "The jury agreed that it is a federal crime to intentionally violate the Terms of Service on a website" seems wrong, but Kerr, responding to comments, assures us he meant what he wrote. Why was the jury asked to define the crime?

AND: From the NYT article:
"As a result of the prosecutor’s highly aggressive, if not unlawful, legal theory,” said Matthew L. Levine, a former federal prosecutor who is a defense lawyer in New York, “it is now a crime to ‘obtain information’ from a Web site in violation of its terms of service. This cannot be what Congress meant when it enacted the law, but now you have it."
It is shocking to think that these website terms of service agreements -- which no one reads -- could could be incorporated into the criminal law this way.

50 comments:

Cedarford said...

There is a futility to society endlessly attempting to wage talmudic debates on "fine-tuning and disputing law" and making law perfectly fit any outrage that deserves a societal response.

Law is an inadequate tool. And we are properly cautious of twisting the law whan it turns out inadequate for each event.

Best that Lori Drew and her complicit daughter are dealt with outside the "officially sanctioned" legal arena. Made outcasts. Even minor law broken by individuals, not the State, in the course of exacting a toll on mother and daughter so that others do not pick up the lethal game they played.

LutherM said...

ANN wrote, regarding the prosecution and partial acquittal, "Good. It was abusive."
Mean-spirited actions, resulting in one dead teenager, with the accused being partially responsible.
And ANN finds the prosecution "abusive", and the partial acquittal "Good".

In the words of a very fine lawyer, ANN, "Have you no sense of decency,... ? At long last, have you left no sense of decency?"

Ann Althouse said...

Oh, bullshit. Criminal law prosecutions must be based on crimes defined in the statutes. Anything else is abuse. Being a disgusting, vindictive, cold-hearted person is not a crime.

mcg said...

I'm inclined to agree. I'm also inclined to think that this woman deserves to be shamed in as severe but legal manner as possible.

mcg said...

As it is, the misdemeanor counts are each punishable by a year in prison and a $100,000 fine. The article claims that she is unlikely to receive jail time but it's certainly possible.

Which reminds me, is there civil action pending in this case?

Meade said...

And now maybe Megan Meier's parents need to be held to account for allowing their daughter to go online without adequately teaching her that nothing on the internet should ever be believed until it is verified, verified, and verified five times more. Doubt everything, including the idea that suicide is a solution, believe nothing.

mcg said...

You may be right about their poor judgement, Meade, but I suspect they've already suffered a considerable penalty for it.

Shanna said...

Oh, bullshit. Criminal law prosecutions must be based on crimes defined in the statutes

Totally agree. This sounds fair, although I’m surprised that “unauthorized access” to freaking MySpace is a crime that could possibly carry any jail time.

The people who want more seem to want to charge her with someone else's suicide, which sounds like a bad idea to me.

mcg said...

To help illustrate the truth of Meade's caution, I shall disclose here for the first time that I am in fact a 60-year old lesbian atheist and communist in Ames, Iowa.

Pogo said...

The outrage expressed is really the lamentation that there no longer exists anything except the law to deal with people like this.

Shame no longer exists, nor does shaming, nor shunning. We are fully atomized as people. Thus when the law is inadequate to deal with what it can never quite proscribe, we have legal over-reach, as here.

Lacking religion or any other substitute for it, how can anyone say this action of Lori Drew was "bad"? She can quite easily counter that she has done nothing at all meriting approbation. The absence of any true community makes any threat for shaming ludicrous and ineffective.

Meade said...

"I am in fact a 60-year old lesbian atheist and communist in Ames, Iowa."

Like we didn't already know that by doing a quick google search?

mcg said...

Well, maybe shaming is no longer possible, it didn't stop people from trying. Per the article:

The Drews and their business associates received harassing calls and death threats. Sarah Drew testified that her school asked her to leave after officials concluded they could not control the bullying she was receiving from other students. A former business associate of Drew testified that a parent at her child's school asked her why she did business with a "murderer."

Bissage said...

Criminal law prosecutions must be based on crimes defined in the statutes.

I'm sure the trial judge would agree one-hundred percent.

Thus, the mere fact that the judge submitted the case to the jury is reason enough to leave that special bottle of champagne where it is.

mcg said...

The five most guilt-inducing video games that do not involve causing a teenager to commit suicide in real life.

Meade said...

That was funny,mcg. Nintendogs reminds me of this very blog in that I feel such a heavy burden of responsibility to return over and over again to straighten out the skewed thinking of so many of my adorably codependent commenter puppies here.

Pogo said...

mcg

I heard about those efforts. Missouri's still got a lot of old-timey small town nature left to it, so if there's any shaming left, you'll find it there.

Assholery is far easier in the big city, hence their disproportionate number.

jaed said...

"She can quite easily counter that she has done nothing at all meriting approbation."

Opprobrium, I think you meant. (I really shudder to think at the kind of mind that might believe her actions merited approbation!)

Should there be a statute to cover this sort of thing? I can see one that would make "deception in the service of deliberately causing emotional distress" a crime. Maybe. The element of deception seems to be what sets this apart from ordinary bullying.

(That, and that Drew's actions and attitude convince me that she meant to cause harm. Maybe even the exact harm she caused.)

halojones-fan said...

If Drew had sent letters through the actual mail, then this would be open-and-shut; she'd be guilty of mail fraud and that's a felony crime.

But oh nooo, it's on the internet, and everyone knows that nothing on the internet means anything. Because the internet is different from other forms of communication.

Geoff Matthews said...

1)_halojones-fan

How is this not wire fraud then?

2) MCG

Sucks to deal with this, but this sounds like a fair form of shaming for driving a girl to suicide.

Pogo said...

jaed:

oops.

Pogo said...
This comment has been removed by the author.
Tibore said...

As appalled as I am at Ms. Drew's behavior - and believe me, she engaged in an utterly callous act - I agree with Professor Althouse: This prosecution was wrong. It's trying to twist the concept of "unauthorized access" in a bad direction, and could have conceivably made any identity obsfucating method of accessing online forums questionable.

Ms. Drew deserves all the judgement against her that can possibly be made in a civil case, and maybe there's another law that doesn't pertain to electronic/internet access that's applicable. But the specific prosecution that was undertaken was bad and wrong. Professor Althouse is correct in saying it was an abusive prosecution. It was. And that's no defense or condonement of Ms. Drew's action in the least; it's an implication of the method chosen by the federal prosecutor in this circumstance, no more, no less.

If someone can find an law that covers this case, by all means, make the argument that Ms. Drew should be charged with violating it. But be careful about conflating the desire to punish her for causing Megan Meier's suicide - something I feel she is culpable in - with the specific computer "hacking" crime she's being charged with. Jennifer Granick of the Electronic Frontier Foundation said it best: "The real problem is that something tragic happened, but the harm that occurred doesn't have anything to do with the way they've charged the offense".

Kirk Parker said...

Cedarford,

"Law is an inadequate tool."

Indeed it is.

"And we are properly cautious of twisting the law whan it turns out inadequate for each event."

Hmmm, I wish I saw more evidence of this caution.

Big Mike said...

Discovering that the only crime on which one can convict Lori Drew is violation of the MySpace ToS is like convicting Al Capone of tax evasion. Oh! Wait!

The notion that this is a just verdict calls to mind Dickens: The law is an ass.

Duscany said...

"Should there be a statute to cover this sort of thing? I can see one that would make "deception in the service of deliberately causing emotional distress" a crime."

I would hate to see more things be made a crime. Right now if you express a political opinion at a time or in a place that offends anyone else there they call the cops, assert that you said something racist, anti-Semetic, homophobic or otherwise criticized someone else's culture/ethnicity/religion/sexual orientation/dress or speech, and the cops show up and charge you with "disorderly conduct."

Nowadays wearing a McCain T-shirt to school is disorderly conduct, as is holding up an anti-Bush sign along the Bush motorcade route. Calling someone a water buffalo can get you thrown out of school for "racist speech" on the grounds that "water buffalo come from Africa and are black." In fact, they mostly come from Asia and are generally gray or tan. But, hey, what does a campus diversity officer know?

Duscany said...

As far as wanting to punish Lori Drew for being mean, that's throwing a pretty wide net. What about all the people who have killed themselves because their former lovers have told them to get out, leave me alone or hit the road, Jack? Surely we are not going to go around prosecuting all their significant others.

I also find it strange that people think Drew deserves punishment because she used a computer to conduct her mischief. Would her moral offense been less severe if she had just slipped notes into the girl's locker?

holdfast said...

Yet somehow Conrad Black was "guilty" of wire fraud (because he does not use carrier pigeons) and obstruction of justice for vacating his CANADIAN offices (from which he had been evicted) and taking with him documents, copies of which had already been furnished to the SEC.

dick said...

The Amish handle this by shunning the person. Her husband must be so proud of her.

Stephen Snell said...

Jaed, thank you, good save. Normally it would be lame to point out a vocab slip, but this one screamed for correction.

If someone gives me the bitch woman's address, I'll order a bunch of pizzas to be delivered to her household.

I would hope that the departed lass' parents succeed in a civil action, which would seem the more apppropriate venue -- though I don't know and am not inclined to do the work to find out.

Hypo for the group: if the father of the departed lass shot the bitch woman to death and was charged with voluntary manslaughter, murder, and involuntary manslaughter, and you were a juror, how would you vote (with acquittal as the 4th choice)?

Meade said...

Hypo for Stephen Snell: If Lori Drew reads your comment and your comment triggers a depression that leads her to commit suicide, would you want us to cut your balls out,
shoot you like a dog,
or
cut your balls out AND shoot you like a dog (with breed of dog your choice)?

Stephen Snell said...

Sorry the hypo was too difficult for you to answer. Do you get a headache watching Law and Order?

I'd prefer that you leave my balls alone (I'm going with my own option, D, because you neglected to provide one).

Meade said...

Oh come on, this is your big chance to be a rare clumber.

Ann Althouse said...

halojones-fan said..."If Drew had sent letters through the actual mail, then this would be open-and-shut; she'd be guilty of mail fraud and that's a felony crime."

Can you cite any cases where wire fraud was applied to causing emotional distress? I thought wire fraud was only about cheating people out of money and the like. I'm no expert on white collar crime, so correct me if I'm wrong.

Duscany said...

The most recent New York Times story on the trial said that after the verdicts were read Lori Drew left the courtroom with her face "red and twisted with rage." I guess she was furious that she was convicted of anything, even if it was only a misdemeanor. The way she saw it apparently, getting rid of the Meier girl was just cleaning up the gene pool.

Even so I hate the way prosecutors twist the law to convict people of things that are not crimes. The prosecutor obviously didn't care that Drew set up a false MySpace account, otherwise he'd be prosecuting everyone else who ever did that. What he really wanted to do was punish Drew for was using the account to humiliate a troubled girl who subsequently killed herself.

This seems to me a lousy way to run the US Attorney's office. I wonder what the prosecutor would have done if Lori Drew had arranged to have some real teenage boy set up the account in his real name, but then send exactly the same messages. The MySpace rules would have been met. The only charge left, it would seem to me, would be that the teenage boy sent the Meier girl messages in which he falsely claimed to like her when in fact he thought she was some overweight teen with drama issues.

Well, that opens up a whole can of worms. How many guys have claimed to be interested in girls when all they really wanted was to get the girl in bed? Unless you can now prosecute guys for uttering false endearments I can't see how in that case you could convict Lori Drew of anything.

Guesst said...

Megan Meier's mom created the MySpace account for her, because Megan was too young to use MySpace.

Why hasn't anyone commented on her violation of TOS?

Of course Lori Drew did something heinous, but people ignore that Megan's mom was intimately involved in helping her establish a "romance" on the Internet with a screen ID who claimed to be nearby.

WTF was the mom thinking? She put her child at risk. Why can't we notice that Mrs. Meier wasn't a very good parent?

This is NOT all about Lori Drew.

Ann Althouse said...

Since no one reads the Terms of Service, why aren't we all cowering in fear about all the federal crimes we may have committed?

Meade said...

Is it a federal crime to use blogger to try to get a girl into bed? And by girl I mean fully grown woman half my age plus 30. If I use my real name and only lie about things like how rich I am and how big a muscle I can make? Maybe I'd better go back and read those terms of service again. I'm getting too old for prison.

Theo Boehm said...
This comment has been removed by the author.
Duscany said...

Althouse: "It is shocking to think that these website terms of service agreements -- which no one reads -- could could be incorporated into the criminal law this way."

All the stories I've seen seem to see this as a lousy outcome. What should have happened when a prosecutor overreaches as everyone seems to think he did in this case? Was it the obligation of the judge to throw the case out of court? If so, I wonder why he didn't. I also wonder why there weren't any friend of the court briefs saying, yes, Lori Drew is a terrible neighbor, lousy mother and all-around despicable insect but even she can't be convicted of something which is not illegal.

Daryl said...

It is shocking to think that these website terms of service agreements -- which no one reads -- could could be incorporated into the criminal law this way.

Anyone who downloads a video from YouTube (using a video downloader program) would be violating the TOS and would be committing a tortious act (copyright infringement).

Millions of Americans are in violation of this statute. It's a joke.

The only reason Lori Drew was prosecuted was because of an extremely unfortunate outcome that was not one of the elements of the crime. They wanted to put her in prison for decades on fake murder charges. The jury exercised common sense--this is why we have a jury system.

Zeb Quinn said...

Clearly the prosecutor believed Drew's actions in this case to be so far beyond the pale that existing law could be shaped to cover these facts. And the trial judge was more willing to risk the appellate courts disagreeing than agreeing.

Duscany said...

" the trial judge was more willing to risk the appellate courts disagreeing than agreeing."

But what if she doesn't appeal the case? Then this afterbirth of a case stands as precedent, right?

Zeb Quinn said...

But what if she doesn't appeal the case? Then this afterbirth of a case stands as precedent, right?

Do you mean the next time a 42-year old woman who believes her daughter was called a name then rains down a 4 week concocted scheme of harassing payback upon a mentally unstable 13-year old who kills herself as a result, could this case be cited as approving authority for prosecuting her for those acts? Yeah, I suppose that could be.

Meade said...

Theo Boehm said...
Does this mean Sir Archy and blogging cockroach might be in trouble??

Only if they use their covers as ruses to bed unsuspecting women who have a thing for roaches and dead guys.

reluctantoptimist said...

Since no one reads the Terms of Service, why aren't we all cowering in fear about all the federal crimes we may have committed?

I don't know if there was anything in the TOS that would, if violated, constitute a federal crime or not, but if something did, since when is "not reading the fine print" a defense? Ignorance of the law is no excuse and stupidity isn't either.

Read the TOS. I do.

Zeb Quinn said...

Ivory tower lawyers sneer at pedestrian things like facts, but the truth is most most cases are made or lost on the facts. Certainly true here. A little of both going on.

paul a'barge said...

Why am I not surprised that Orin Kerr was one of her attorneys?

This is the man who extolled the virtues of Eric Holder for AG under Obama. Holder, of course is the man who shepherded the Marc Rich pardon under Clinton. And Kerr thinks that Holder would make a great US AG.

Orin Kerr is a walking, two legged morality-free zone.

Synova said...

It acquitted Drew for any role in inflicting distress on Meier or for anything related to Meier's suicide.

No, it didn't.

It really didn't.

The whole *point* of the defense was that this wasn't about deciding if Lori Drew was responsible for inflicting distress on Meier or for contributing to her suicide.

The whole point was that there was no law that applied to harassing a minor over the internet.

I dare say that there *will* be in the future. I dare say that laws will be passed to make sure that someone who pretends to be someone else, who stalks a person on-line, and who inflicts emotional distress, will have a law that applies to them even if they never follow up in person.

halojones-fan said...

@Daryl: Millions of people drive faster than the speed limit every day, but I'll still get a ticket if the cops catch me doing it. de facto is not de jure.

@Ann: Financial harm? Well, there's the foosball table. And, while there wasn't any immediate demands for money, one could probably argue that CAUSING A MINOR TO COMMIT SUICIDE ought to be guilty of at least a manslaughter charge.

Darcy said...

I agree Synova. I think there will be some kind of law that addresses this kind of predatory behavior, specifically by adults towards minors.

This child was 13. 13! Yes, yes, YES her mother should have protected her from this. But that doesn't change the fact that Lori Drew is a dangerous predator of children.

I'm glad, at the very least, that she has been scorned by society and had to pay (hopefully more than she could afford)for her defense. It won't make up for the young life so sadly extinguished, but it is something.