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My MySpace profile lists my age as 90. I did this at some point in 2005 to avoid the amount of messages I was receiving from men using the site to find prospective dates. This is my choice, and one that worked very well for me, even if I was, in fact, in direct violation of MySpace's terms of service, which state that all users must submit “truthful and accurate” information about themselves.
Imagine a world where a site's terms of service were enforceable by law. A world where my convenient lie about my age amounted to “unauthorized access” of MySpace servers under the Computer Fraud and Abuse Act—which was created in 1986 to deal with computer hackers. Under this act, the infraction could make me a felon.
It almost happened.
The case that would have set the precedent was that of United States v. Lori Drew, otherwise known as the case of the MySpace Mom.
REFRESHER
Lori Drew, a Missouri mother to a teenaged daughter, was concerned about alleged rumors being spread by Megan Meiers, a friend with whom her daughter had had a falling out. She, her daughter and an employee of hers, Ashley Grills, created a MySpace account for a fictitious boy named “Josh Evans” and used it to befriend Meiers, allegedly for the purpose of getting information from her regarding Drew's daughter. The messages, which began as friendly, quickly became cruel to Meiers, eventually leading the girl, who had been diagnosed with depression, to commit suicide.
The county prosecutor, Jack Banas, who reviewed the case, declined to press charges. According to Banas, there was no evidence that Drew had the criminal intent to harass or stalk Megan; more importantly, her behavior didn't violate any Missouri law. The same conclusion was reached by the local federal prosecutor. The result from the public and media was outrage, eventually leading California-based attorney Thomas O'Brien to step in, claiming that California had jurisdiction in the case on the grounds that MySpace's servers were located in Beverly Hills.
Early last year, a federal grand jury indicted Lori Drew on one count of conspiracy and three counts of accessing protected computers without authorization under the Computer Fraud and Abuse Act. The charge of “accessing protected computers” was related to Drew's breach of MySpace terms by creating a fictitious profile. In November, Drew was convicted of three counts of accessing protected computers, but the jury acquitted her on three felony charges and a count of conspiracy.
The case had the blogosphere holding their breath until Thursday, when US District Judge George Wu, who had delayed Drew's sentencing in May of this year to review the testimony of prosecution witnesses, overruled the jury and directed acquittal of all charges.
UR DOIN IT RONG
There is no question that what Drew did is shameful—even criminal. Cyberbullying is a very real, very malevolent form of abuse. The problem here is that there are no real laws in place to prosecute people who engage in this kind of harassment online.
The case against Drew did not fail because she is not guilty—it failed because it relied so heavily on the notion that violating MySpace’s terms of service was tantamount to computer hacking and thus a breach of the Computer Fraud and Abuse Act (which charges anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains... information from any protected computer if the conduct involved an interstate or foreign communication”).
This precedent, while helpful in punishing Lori Drew for her reprehensible behavior, spells disaster for everyone else using sites without adhering to their respective terms of service.
“It basically leaves it up to a website owner to determine what is a crime,” said Wu. “And therefore it criminalizes what would be a breach of contract.”
Wu's take echoes what many critics of the case have been saying for months, among them the Electronic Frontier Foundation (EFF), Center for Democracy and Technology, and the Heritage Foundation.
In an amicus brief filed by the EFF in conjunction with the Center for Democracy and Technology, Public Citizen and 14 law professors, the implications to the free speech of US citizens using the web was highlighted.
The brief had other examples of criminal misconduct under this definition: a married person using the services of Match.com could be prosecuted by using the site for breach of their terms, which state that all users must be single or separated to use the site; a minor under the age of 18 using Google could also be prosecuted for violating the search engine's terms of service;
