November 16, 2008

posted by Daniel J. Solove

Could you talk a little, for the benefit of the non-lawyers in the audience, about how the CFAA might be limited (either judicially, or by amending it) in a way that wouldn't completely gut it?

The original purpose is, I think, to say that I have the right to set the rules for accessing my computer. That seems reasonable.

And if you lie about who you are in order to use my computer, you're committing fraud. Still seems reasonable.

But at first blush, I can't think of any way to codify that concept without giving me free reign to declare rules that effectively become criminal statute - which is behind all the furor in the Lori Drew case.

I've seen dozens of posts proclaiming that this law is a good idea, but way too vague; I haven't seen a single one proposing how to fix it. Any ideas?

I am coming late to this, but I see nothing absurd about this. First, you say that it is vague. But it isn’t. it says, you access websites on their terms. What is vague about that?

Second, you say it allows them to write the criminal code. Um, so? We often allow the permissions of others to define lawful conduct. A woman can say “you can have sex with me, but only if you dress as little bo peep,” and if the guy forces himself in any other attire, he is in jeopardy for rape.

You also say: “If the government's interpretation stands, it means that hundreds of thousands--perhaps millions--of Internet users are criminals.”

Really? Now, look, I am sure there is a lot of lying going on, on the internet. Okay. But all of it is related to crimes or torts? I doubt it.

Also a few other points.

“Why is this case being prosecuted at all?” Because a girl is dead.

“Why is this case going to trial?” see above.

“he will allow evidence of Meier's suicide, even though it isn't relevant” how exactly is it irrelevant? It seems that the severity of the emotional distress is utterly relevant, since after all we are taught in law school that the emotional distress has to reach a unique level of cruelty to count. Also, the fact that some of the statements that the prosecution wish to enter into evidence occurred after the girl’s death makes it pretty hard to avoid mentioning it.

> It shouldn't be a tool that prosecutors can use whenever they don't like a particular person.

Wow, that is a laugh. It is, and it is all the time. Statutory rape laws, for instance, are frequently used as a short cut for when the District Attorney thinks actual forcible rape occurred, but can only prove sex beyond a reasonable doubt. It goes on and on. Really, the naiveté in that sentence is stunning.

By the way, as simple justice points out, but pretends is sinister, the judge merely said originally that he was not sure it was relevant, but would rule on the subject later. Apparently simple justice holds him to it like it is a commitment, but actually that would be unfair to the government to do that.

I always tell my clients that the simplest way to avoid legal trouble is this: if it seems like it ought to be illegal, it probably is. “You might think you are clever, that you found some loophole that means that although it is wrong, it ain’t technically illegal. Don’t believe it. Do not underestimate the ability of a determined prosecutor to close any loopholes you think you found. The bad guys almost never get away with it.”

This is a classic example of that principle in action. And more power to the government for doing so.

While I agree this is a bit of a strange use of the law, given the increasing pressure that social networking sites are under to stop child predators from creating fake profiles, I can see why MySpace would have an interest to take this as far as it can go. When you join, you sign a ToS claiming you are who you say you are and MySpace is probably trying o find ways to legally enforce that contract beyond simply canceling your service. So I would look to MySpace rather then the 'ambitious prosecuter' as the source of this.

Having said that.. I'm actually kinda confused about why other laws did not apply in this case. It seems like old classics like child endangerment, corruption of a minor, accessory to suicide, etc,... any of those could have kicked in. They could even have brought in some of those anti-grooming laws since, regardless of outcome, you basically had an adult pretending to be a minor who was romantically interested in another minor. If Drew had been a male this probably would have been exactly what they did.

Congratulations on your Textualism-based reasons why this is a bad prosecution. I trust you will incorporate this reasoning into your opinions on Con Law, where such reasoning is even more vital because, of course, Congress could modify the CFAA following a boneheaded decision, but cannot modify the Constitution after a similarly boneheaded decision.

If Lori Drew did nothing else, she sexually harassed a minor. But she did do something else. She doesn't deserve life in prison or anything, but she should spend a few years behind bars.

With respect to the admissibility of evidence of the suicide, it appears to me that Professor Solove is asking the obvious question: Is the suicide probative of an element of the crime of unlawful access under CFAA? I think not and that its admission has potential only to inflame the jury. Poor evidentiary decision.

Charles:

See my comment above. In order to be intentional infliction of emotional distress, it has to be a severe amount of distress. that has to be proven. the fact she killed herself tends to show it was pretty severe. Thus its relevant.