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.

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Hap tip to the LA Times. My only question is - what took so long?

A federal judge tentatively decided today to dismiss the case against a Missouri woman who had been convicted of computer fraud stemming from an Internet hoax that prompted a teenage girl to commit suicide.

Lori Drew of Dardenne Prairie, Mo., was convicted in November of three misdemeanor counts of illegally accessing a protected computer.

The decision by U.S. District Judge George H. Wu will not become final until his written ruling is filed, probably next week. Wu said he was concerned that if Drew was found guilty of violating the terms of service in using MySpace, anyone who violated the terms could be convicted of a crime.

Drew 50, was to be sentenced in May but Wu had delayed the sentencing until today, saying he wanted to consider the defense motion to dismiss the entire case.

A federal jury convicted Drew in November of the three misdemeanor charges but deadlocked on a felony conspiracy charge that would have carried a sentence of up to 20 years in prison.

The verdict was a blow to prosecutors who indicted Drew on what some called tenuous legal grounds after authorities in Missouri declined to file criminal charges. Drew was widely criticized after the 2006 death of eighth-grader Megan Meier, an acquaintance of Drew's daughter.

Prosecutors said Drew, her daughter and her 18-year-old employee used a fake profile of a teenage boy to flirt with Megan online via Beverly Hills-based MySpace. Megan hanged herself with a belt after getting a message, purportedly from the boy, telling her that "the world would be a better place without you."

At the May hearing, Wu grilled Assistant U.S. Atty. Mark Krause at length about whether the government had prosecuted Drew under the appropriate laws when they asserted that violating MySpace's terms of service amounted to a crime.

"Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?" Wu asked. "If these people do read [the terms of service] and still say they're 40 when they are 45, is that a misdemeanor?"

Krause argued that Drew's acts were criminal because she signed up for the fake account with the intention of harming Megan by humiliating her. Drew knew her acts were illegal and deleted the account shortly after Megan's death to cover up her crime, he contended.

Prosecutors had asked Wu to impose a sentence of three years. Defense attorneys argued for probation and vehemently criticized the prosecution in court filings, calling its argument "utterly absurd."

Megan's parents, Ron and Tina Meier, made statements in court in May describing their daughter as a loving but vulnerable girl who went fishing with her father and cared deeply for her friends. They asked Wu to impose the maximum prison sentence.

"It just sickens me that it was an adult playing with the mind of a 13-year-old child," Ron Meier said in May.

To resurrect a phrase from my adolesnce - no duh, Judge Wu. I still don't understand why it took him the better part of a year to come to this (in my opinion) very obvious conclusion that Ms. Drew was charged, tried, and convicted as a result of bloodlust, selective prosecution, and prosecutorial overreaching. Thank goodness he (or his law clerks) finally allowed their common sense to prevail in this matter.

And I'll bet my bottom dollar that SOMEONE will be OUTRAGED!!1!11! tonight! Any guesses who?

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