Posted by Orin Kerr:
Los Angeles Times, USA Today Run Editorials Opposing Lori Drew Verdict:
http://volokh.com/archives/archive_2008_11_30-2008_12_06.shtml#1228319830
Today both the Los Angeles Times and the USA Today are running
editorials against the government's prosecution of Lori Drew under the
Computer Fraud and Abuse Act. The [1]Los Angeles Times editorial is
titled "Government as CyberBully," and it argues that Judge Wu should
grant our motion to dismiss:
[T]he prosecutors' interpretation of Section 1030 would
"criminalize the everyday conduct of millions of Internet users."
The government should be particularly wary when the allegedly
criminal activity is speech, even when that speech leads to
something as tragic as Megan's death. Websites can and should do a
better job of responding to cyber-bullying and other abuses of
their terms of service, rather than relying on the federal
government to do it for them. Wu reserved judgment when Drew's
lawyer asked him to acquit Drew of the charges before the jury
began its deliberations. He should grant that motion now.
The [2]USA Today's editorial is titled "MySpace case bends the law":
Drew wasn't convicted of driving someone to suicide or showing
criminally poor judgment, but of violating the Computer Fraud and
Abuse Act, which makes unauthorized use of a computer a crime.
The law was written in the 1980s to deter computer hackers and
has been revamped several times, but this was the first time it was
used to punish cyberbullying. To find a way to charge Drew,
prosecutors might have stretched the law too far and made potential
criminals out of millions of Americans.
Any Internet surfer is familiar with the ritual it takes to join
many websites, including social networking ones such as MySpace,
which is where the bullying occurred. You're presented with
legalese known as the "terms of service" and asked to accept them.
Most people never bother to read them, but by clicking "Yes" or "I
accept," you've crossed a legal threshold. If you violate those
terms � even if you have no clue what they are � you're not just
breaking the website's rules, you also might be committing a
criminal act. Drew was convicted of violating MySpace's terms of
service.
This could create millions of "criminals," because Internet users
commonly violate terms of service for valid reasons. For example,
people worried about identity theft or online predators often join
websites under fake names, a practice explicitly prohibited by some
websites, including MySpace.
It's absurd to think that prosecutors busy with real crimes will
comb the country looking for people who violate website policies,
but it's a little less outlandish to imagine that a politically
motivated prosecutor could take advantage of an overly broad law.
. . . . [S]ince the Missouri tragedy shows how dangerous
cyberbullying can be, it makes sense to update harassment laws to
attack it directly. That could provide a way to hold the next Lori
Drew liable � without making potential criminals of innocent people
in the process.
(Incidentally, [3]click here for a prescient law review article that
foresaw the governemnt's theory in the Drew case five years ago and
explained the problems with such a theory.)
In an effort to achieve balance, the USA Today has also run an essay
in favor of the Lori Drew prosecution by[4] Nick Akerman, an attorney
at Dorsey & Whitney who appears from his firm bio to have built a
civil practice relying on broad constructions of the Computer Fraud
and Abuse Act. (Akerman is the co-chair of the Computer Fraud and
Abuse Practice at the firm.) As far as I know, Akerman is the only
self-described "expert" on the Computer Fraud and Abuse Act who
actually supports the government's theory in the Drew prosecution.
Akerman tries to make the case for the prosecution [5]here.
As an advocate in the Drew case, I'm certainly pleased by these
editorials. It's not every day that two of the most important
newspapers in the country take your client's side in litigation. And
as a scholar of computer crime law, I'm also pretty amazed: I can't
say I ever expected the LAT and the USA Today to run editorials on the
proper construction of 18 U.S.C. 1030 -- and to get it right!
References
1.
http://www.latimes.com/news/printedition/asection/la-ed-myspace3-2008dec03,0,1359199.story
2. http://www.usatoday.com/printedition/news/20081203/edit03_st.art.htm
3. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
4. http://www.dorsey.com/akerman_nick/
5. http://www.usatoday.com/printedition/news/20081203/oppose03_st.art.htm
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