"It basically leaves it up to a website owner to determine what is a crime," said Judge Wu, overturning the guilty verdicts against Lori Drew.

In the case that grew out of the suicide of Megan Meier, who was tricked on MySpace into believing that a nonexistent boy loved her and left her.

Well, yeah, I guess it was a tortuous act.

Lori Drew took a devious, circuitous path using MySpace to... oh, you mean tortious....

It's me and Emily Bazelon -- on the new Bloggingheads!

They've called this one "Playground Edition" -- because all the topics involve children -- also law, Lori Drew, suicide, dressing like stereotypical Indians, book-learning, and the Pledge of Allegiance:

"Trust me; I was so for this woman going away for twenty years," said the jury forewoman in the Lori Drew case.

Wired reports:

[Valentina] Kunasz said despite all the debate outside the courtroom about the prosecution's use of an anti-hacking statute to charge Drew for violating a web site's terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a web site's terms of service should be prosecuted.

"The thing that really bothered me was that (Drew's) attorney kept claiming that nobody reads the terms of service," she said. "I always read the terms of service. . . . If you choose to be lazy and not go though that entire agreement or contract of agreement then absolutely you should be held liable."

Should they be punished with a federal prison sentence?

"I guess that's an option for debate," Kunasz said. "When it's gross circumstances of someone killing themselves. . . . "

Should it be considered a serious, federal crime to violate a website's terms of service? Remember when a blogger set up a Facebook page using my name? That violated Facebook's Terms of Use. ("[Y]ou agree not to use the Service or the Site to... impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity....") The blogger in question appeared in the comments to my post and confessed and bragged about his behavior. (I've preserved all his comments in case he now thinks it's worth his trouble to delete them.)

Now, I pursued the remedy I cared about: I got Facebook to delete the page. But imagine if some federal prosecutor went after him. It would be utterly abusive, in my view, and a violation of freedom of speech, but how is it different from what happened to Lori Drew?

I expect you to say that the blogger's hoax didn't cause a death. Okay, then let's make it a hypothetical: His taunting is severe and it drives me to commit suicide.

But he right answer is that Lori Drew's case was different because she was accused of using the website in order to obtain information about Megan Meier:

Drew... was convicted of helping create a fake MySpace account for a non-existent 16-year-old boy named "Josh Evans" to woo Megan and determine if Megan was spreading rumors about Drew's then-13-year-old daughter Sarah. According to testimony during the trial, Ashley Grills a then-18-year-old employee of Drew, created the "Josh Evans" account with Drew's approval and conducted most of the communication between "Josh" and Megan.

The federal statute used by the prosecutor -- 18 U.S.C. § 1030 -- is about unauthorized access of a computer and obtaining information.

Orin Kerr makes having the middle name "Ralph" and failure to be "super nice" into a federal crime.

How can one lawprof, acting alone, rewrite federal criminal law?

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.

"If you hadn't heard the indictment read to you, you'd think this was a homicide case.... This, ladies and gentlemen, is a computer case..."

Closing arguments in the bizarre prosecution of Lori Drew:

The defense attorney insisted the only question is whether Drew violated the terms-of-service agreement of the MySpace social networking site. He said that Drew... never read the seven-page agreement.

"Nobody reads these things, nobody... How can you violate something when you haven't even read it? End of case. The case is over."

In the prosecutor's view: "The rules are fairly simple. You don't lie. You don't pretend to be someone else. You don't use the site to harass others."

Okay, fine, as a general rule, but should you go to prison for 20 years for lying and harassing and pretending to be a fictional person on line? Are we prepared to treat practical jokes like that across the board? Obviously not.

A 47-year-old woman pretended to be a 16-year-old boy on line and tormented a 13-year-old girl she knew.

After getting the girl to fall in love with this nonexistent boy, the middle-aged woman turned mean, argued, and said "The world would be a better place without you." The girl immediately committed suicide. Has the woman committed a crime?

But a St. Charles County Sheriff’s Department spokesman, Lt. Craig McGuire, said that what [Lori] Drew did “might’ve been rude, it might’ve been immature, but it wasn’t illegal.”

In response to the events, the local Board of Aldermen on Wednesday unanimously passed a measure making Internet harassment a misdemeanor punishable by up to a $500 fine and 90 days in jail.

"Give me a break; that’s nothing,” Mayor Pam Fogarty said of the penalties. “But it’s the most we could do. People are saying to me, ‘Let’s go burn down their house.’”

You need a statute if you want something to be a crime. Internet harassment is a crime in many states, including Wisconsin, but there are free speech limits on what can be criminalized.

Anyway, what was Drew's motivation? It looks as though she started out wanting to help her own daughter, who was rejected as a friend by the girl who killed herself:

In a report filed with the Sheriff’s Department, Lori Drew said she created the MySpace profile of “Josh Evans” to win Megan’s trust and learn how Megan felt about her daughter...

“Lori laughed about it,” {said a neighbor], adding that Ms. Drew and Ms. Drew’s daughter “said they were going to mess with Megan.”

After a month of innocent flirtation between Megan and Josh, Ms. Meier said, Megan suddenly received a message from him saying, “I don’t like the way you treat your friends, and I don’t know if I want to be friends with you.”

They argued online. The next day other youngsters who had linked to Josh’s MySpace profile joined the increasingly bitter exchange and began sending profanity-laden messages to Megan, who retreated to her bedroom. No more than 15 minutes had passed, Ms. Meier recalled, when she suddenly felt something was terribly wrong. She rushed to the bedroom and found her daughter’s body hanging in the closet.

A bizarre part of the story is that the police only heard about it because of a foosball table:

Shortly before Megan’s death, the Meiers had agreed to store a foosball table the Drews had bought as a Christmas surprise for their children. When the Meiers learned about the MySpace hoax, they attacked the table with a sledgehammer and an ax, Ms. Meier said, and threw the pieces onto the Drews’ driveway.

Drew went to the police about that. She filed a complaint that said she thought the hoax “contributed to Megan’s suicide, but she did not feel ‘as guilty’ because at the funeral she found out Megan had tried to commit suicide before.”

Incredible. It's hard to believe that a person who seems to be a functioning member of society could have such bad judgment, distorted perception, and pitilessness.