Lori Drew, My Take

Just feeling compelled to add my 2 cents to KC's post about the Lori Drew case FINALLY being thrown out.


This is a case that should never have gone to trial. Because, as the judge correctly (albeit way too belatedly) pointed out, Lori Drew is certainly not the only person ever to have violated the MySpace terms of service. In fact, millions of people on Myspace lie about their identities, their ages, their genders, etc. There are people on MySpace impersonating food items, cartoon characters, even celebrities.





Who is that masked bandit? Should this guy get 3 years in jail too?


The statute under which Ms. Drew was prosecuted is a hacking statute, intended to punish someone who unlawfully gains access to a computer network. Meaning, getting in and destroying files, or accessing personal information, business trade secrets or government secrets, etc. The statute was not intended to punish people who impersonate someone, or something, else on social networking sites, although an overly ambitious prosecutor - who used this case as a tool to get publicity - attempted to twist the hacking statute to fit the facts of the Lori Drew case. It was referred to as a "novel" legal theory. (Here's a tip: when prosecutors assert "novel" interpretations of the law? They're overreaching.)


The problem with this "novel" theory was that, if allowed, it would criminalize the behavior of anyone who lies about any bit of information they provide in order to participate on any kind of web site -- IF (and this is a big if) the website in question requires you to provide that information and to promise that the information you provide is true. In other words, it's ok to provide false information on some websites, so long as you don't have to check a box at the bottom of the registration page indicating that you filled out the form truthfully. As even Judge Wu recognized:

It basically leaves it up to a website owner to determine what is a crime...And therefore it criminalizes what would be a breach of contract.

The law simply cannot let the same behavior be legal in some instances and illegal in others, depending solely on the whims of "Tom." The law has to apply equally to everyone, and has to be clear enough so that everyone understands what is and is not acceptable, lawful behavior. To that end, the emotional argument - the outrage - regarding the result of Ms. Drew's conduct here is misplaced. If lying about your personal information, thereby violating a website's terms of service, is a crime, it's a crime - regardless of the outcome. If you point a gun at someone and pull the trigger and miss, you're just as guilty of the crime of attempted murder as you are if you shoot the victim in the head and cause permanent brain damage.

The prosecutor attempted this ridiculous theory in order to make a name for himself, and to appease public outrage that there was no criminal statute under which Lori Drew could be prosecuted in the state where all the events occurred - Missouri. What I don't understand is why the family of Megan Meier has never brought a civil lawsuit against Lori Drew for the tort of Intentional Infliction of Emotional Distress, which seems to fit these facts perfectly. The Meiers could prevail in such a lawsuit if they could show: (1) Drew acted intentionally or recklessly; (2) Drew's conduct was "extreme and outrageous"; and (3) the conduct was the cause (4) of severe emotional distress. The kind of "extreme and outrageous" conduct needed to support this kind of claim is more than just insults and hurt feelings, but rather must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Although this is a high standard, there seems to be so much outrage about Lori Drew's behavior that I think a judge would let the case go to a jury, and I think the Meiers would have a good chance of winning. This would be a much better use of judicial resources - not to mention the emotional resources of the Meier family - than the pursuit of a criminal conviction under a flawed legal theory.

Look, it's hard to have any sympathy for Lori Drew. She's clearly a shady character. While I'm not in favor of making loosely defined "cyber bullying" illegal or actionable (and good luck getting that past the First Amendment!), I think a grown woman taking on a 12-year-old girl like that is despicable. And I'd have absolutely no sympathy for her if she were being pursued for civil liability. But she should never have been prosecuted for a crime. And so the real villain in this situation is the coward in the black robe, Judge George H. Wu.

Judge Wu should have dismissed this case early in the proceedings. Instead, he let the prosecutor grand stand. He let the Meier family (and a large chunk of the public) get its hopes up. He let Lori Drew and/or her pro bono attorneys expend vast sums of money, needlessly, in her defense. He wasted judicial resources and he let the law get twisted into a pretzel. Judge Wu knew this result was coming for months, yet he kept putting it off and putting it off, delaying the inevitable because he didn't want to deal with the visceral public outrage that was sure to follow. What's worse, he apparently told the prosecutor that he would have allowed felony convictions under the anti-hacking statute to stand if the jury hadn't acquitted Drew of those charges. WHAT??? Proving that not only is Judge Wu spineless, he's also clueless.

A small victory for the rule of law. But a revelation that there's a lot going on in our justice system that's just, well, rotten.