Posted by Orin Kerr:
Lori Drew Opinion Handed Down -- Judge Grants Motion To Dismiss on Vagueness
Grounds:
http://volokh.com/archives/archive_2009_08_23-2009_08_29.shtml#1251601962
Readers who are following the Lori Drew case know that [1]back on July
2, Judge Wu "tentatively" ruled that he was going to overturn the jury
verdict. At the time, however, Judge Wu stressed that his decision was
not final, and that he would eventually issue an opinion with his
final ruling.
Late Friday, Judge Wu finally handed down his opinion. [2]You can
read it here: United States v. Lori Drew, Final Opinion. Judge Wu did
in fact grant the defense motion to dismiss, ending the prosecution
against Drew and overturning her misdemeanor convictions. (To my
surprise, it seems that this news development has been entirely
ignored by the press; I couldn't find any reference to it on the web.)
The reasoning of the opinion is that whatever unauthorized access
means, it cannot mean mere violation of Terms of Service without more.
Such a reading of the statute would render the statute
unconstitutionally void for vagueness because it would give the
government almost unlimited power to choose who to prosecute and
wouldn't give citizens sufficient notice as to what of their conduct
was criminal. I'll probably have some more comments on the opinion
soon, but for now I just wanted to post it so others could see it.
Also, I'm working on a draft article on the use of vagueness and
overbreadth to challenge overly broad interpretations of 18 U.S.C.
1030, along the lines of the arguments we made (and Judge Wu accepted)
in the Drew case. I'll post the draft when I have something ready
enough to share.
References
1. http://www.wired.com/threatlevel/2009/07/drew_court/
2. file://localhost/files/LoriDrew.pdf
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