Lori Drew Tentatively Acquitted
Judge George Wu has ruled that he is planning to dismiss the charges against Lori Drew, the woman involved in the MySpace suicide case involving Megan Meier. Background about the case is here. According to an article by Kim Zetter of Wired, who has provided terrific coverage of the case:
“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.” . . . .
Wu told Assistant U.S. Attorney Mark Krause that if Drew had been convicted of the felonies, he would have let the convictions stand, and would have already sentenced her. But the misdemeanor convictions troubled him, because of the vague wording of the statute. . . .
To convict Drew of the felonies, prosecutors would have needed to prove two things: that Drew accessed MySpace “without authorization,” and did it for the purpose of committing a tortious act — in this case, to intentionally cause harm to Megan Meier.
But for the misdemeanors, the jury just had to find that Drew obtained the unauthorized access. Wu said that language, standing on its own, was too vague to pass constitutional muster in this case.
“I don’t see how the misdemeanor aspect would be constitutional,” he said. “That is the issue I’m wrestling with at this time.”
Wu also doubted that MySpace provided sufficient notice to members to hold them responsible. If a user didn’t read the terms of service, the judge asked prosecutor Krause, could they still be charged with violating them?
In previous posts (here and here), I argued that the CFAA should be held to be unconstitutionally vague. I’m encouraged that Judge Wu agrees, though I believe the CFAA is unconstitutionally vague not only in its misdemeanor provisions, but in its felony ones as well.
Congratulations to my colleague, Orin Kerr, who assisted in Lori Drew’s defense.
The AP story is here.