Megan Meier Case Update — Drew Indicted
posted by Daniel Solove
I’ve blogged about the Megan Meier case a while ago. This is the case where Megan Meier, a teenager, committed suicide after her online friend from Myspace suddenly started to reject her and say mean things to her. The “friend” on Myspace was actually Lori Drew, the mother of one of her classmates, and some other individuals. They created the fake profile and were pretending to be Meier’s fictional friend.
Now, Drew has been indicted by a federal grand jury for a violation of the Computer Fraud and Abuse Act (CFAA). Here’s the indictment.
Drew was charged with conspiracy as well as three counts of accessing protected computers without authorization. According to the indictment:
On or about the following dates, defendant DREW, using a computer in O’Fallon, Missouri, intentionally accessed and caused to be accessed a computer used in interstate commerce, namely, the MySpace servers located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of interstate commerce obtained and caused to be obtained information from that computer to further tortious acts, namely intentional infliction of emotional distress on [Megan Meier].
From the AP:
Each of the four counts carries a maximum possible penalty of five years in prison.
Drew will be arraigned in St. Louis and then moved to Los Angeles for trial.
The indictment says MySpace members agree to abide by terms of service that include, among other things, not promoting information they know to be false or misleading; soliciting personal information from anyone under age 18 and not using information gathered from the Web site to “harass, abuse or harm other people.”
Drew and others who were not named conspired to violate the service terms from about September 2006 to mid-October that year, according to the indictment. It alleges that they registered as a MySpace member under a phony name and used the account to obtain information on the girl.
Drew and her coconspirators “used the information obtained over the MySpace computer system to torment, harass, humiliate, and embarrass the juvenile MySpace member,” the indictment charged.
UPDATE: Over at the Volokh Conspiracy, Orin Kerr believes that the indictment should be dismissed. Kerr believes that it is a stretch to apply the CFAA to violations of a site’s terms of service.
If the computer owner says that you can only access the computer if you are left-handed, or if you agree to be nice, are you committing a crime if you use the computer and are nasty or you are right-handed? If you violate the Terms of Service, are you committing a crime?
Kerr also argues that the prosecution will have a ver yhard time demonstrating that Drew intended to violate MySpace’s terms of service. He writes: “But here there is no evidence that Drew even read the TOS. Most people don’t, of course; I would be surprised if 1 person in 100 actually tried reading it. If Drew wasn’t aware that she was violating the TOS, she couldn’t be exceeding her authorized access intentionally.”
I agree with Kerr on these first two reasons. While Drew’s conduct is immoral, it is a very big stretch to call it illegal.
Kerr offers a third reason why the indictment is faulty — it is unclear whether the goal of the conspiracy was to obtain information, as was charged in the indictment. Kerr writes: “[I]t doesn’t seem that Drew had the intent to obtain information from her victim. Her apparent goal was to harass her victim and to cause emotional distress, not to obtain information from her.” On this reason, however, I’m not so sure I agree. The news accounts I read about the case indicated that one of Drew’s primary motivations for creating the fake profile was to learn information from Megan Meier. She wanted to know information from Megan that pertained to her own daughter, who was a classmate of Megan’s. The harassing came later on.
May 15, 2008 at 5:46 pm
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Gossip & Shaming), Social Network Websites
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Responses (5)
tessieroo - May 16, 2008 at 2:58 pm
You haven’t read the original police reports…Drew DID admit she created the account to “find out what Megan was saying about her daughter” so she was trying to obtain information.
tessieroo - May 16, 2008 at 2:59 pm
You are correct…in the original police reports, Drew DID state that she created the account for the purpose of “finding out what Megan was saying about her daughter” so she was attempting to gather information.
Jon Garfunkel - May 18, 2008 at 10:39 pm
Dan,
Sorry to be gone a while from this site. This post came across my radar.
Indeed, it is troubling that the Justice Department may set the precedent of making a breach of ToS a crime. But people wanted some remedy, and it’s not clear whether a proactive remedy will exist in the future (beyond the low probability of it; there are 1.3 suicides per 100,000 people aged 10 to 14 in the U.S., while 32% of teens have experienced cyberbullying).
One of the outcomes of the incident was the formation of the Internet Safety Task Force last January, which the Berkman Center has begun coordinating.
I’ve been asking whether the ISTF will cover the governance issues about injurious speech in general, but I haven’t heard.
Jon
B.Frank - May 20, 2008 at 5:08 am
In order for this alleged incohate offence (conspiracy) to qualify as criminal behaviour, must not the prosecutor prove beyond reasonable doubt to a jury the defendant’s contemporaneous morally culpable mental state (Mens Rea) consisted of an actual deliberate intention to commit the substantive tort alleged … namely, ‘Breach of ToS’?
i.e. To succeed in this, they must prove
1. that ‘Breach of ToS’ is a recognised/recognisable tort for which damages or other reliefs can be secured in civil law.
[As a 'Breach of ToS' was only ever envisioned as a legal safeguard to enable the termination of a contract for a (in this case, free) service to an unwanted user, not to recover damages, etc. - this would seem an impossible threshhold to cross.]
2. that accused actually knew the ToS and willfully breached them, which, unless she implicates herself, should again be impossible to prove.
——
Having said that, I think there is a preponderant risk this unfortunate lady will be unjustly convicted through legalistic contortions setting a new precedent in arbitrariness, and that this is more a symptom of the crisis/hysteria gripping the US public and the apparently boundless determination of the USGovernment to terrorise the citizenry into abject submission in their shiny, happy-clappy, born-again Police State by and for Oil-Pirates.
Good luck with that in any case.
Eric - May 20, 2008 at 7:25 pm
Just about any website that accepts user input (not just MySpace but many forums, blogs and news sites that allow comments) has some kind of Terms of Use or Terms of Service. Hardly anyone reads these things, and even fewer people care (what’s the worst that could happen if I post a nasty comment? It gets deleted and maybe I’m banned from posting again.) What if I went to a discussion forum about China and posted a “Free Tibet” comment? If the site included in its Terms of Use a clause prohibiting pro-Tibet comments, would I be guilty of “unauthorized access to a protected computer”? There must be millions of ToS violations like this every day, but only in extraordinary circumstances would someone be prosecuted for it. (I hope there aren’t any prosecutors out there who own stock in companies sponsoring the Beijing Olympics and are out to get me because of my penchant for criticizing China and thereby hurting their stock returns!)
If violating a ToS agreement is in itself enough to constitute a federal crime, it would turn the Internet into a minefield. Any blog owner could respond to objectionable comments not by deleting them, but by calling the police! The law could now be applied on the whim of anyone who alleges a ToS violation. Clearly, a recipe for disaster!
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