Constitutional Law

How Law Enforcement Overreached in Lori Drew Case

By Dan Gillmor

When public officials start talking about "protecting the children," watch out. Those are often code words for whacking civil liberties -- and in the Internet age, they go directly to core liberties such as free speech.

A breaking-news example is the ugly case of Lori Drew, in which a federal judge is in the process of rescuing us from a prosecutor whose legal theories would have created criminals of just about everyone who ever signed up for just about anything online. The judge said last week he's overturning a jury verdict that prosecutors won by abusing the law while appealing to emotion.

The case is ugly not only because of the law-enforcement overreach, however. It started that way because of Drew's actions. She was a ringleader in a cruel online hoax against a teenaged girl in Missouri, Megan Meier, that may well have contributed to the girl's suicide. (See the Citizen Media Law Project's compendium for details.)

Boiling it down, Drew, whose daughter was fighting with Meier, and several others created a bogus MySpace account for a fictitious teenaged boy who wooed and then rejected Meier. It was a heartless act, and Drew and her helpers deserve at least contempt if not a civil lawsuit.

Using Hacking Law

Officials in Missouri had no cause for criminal action, however. But federal prosecutors hauled Drew off to Los Angeles and tried her for violating a federal law, the Computer Fraud and Abuse Act (CFAA), which had been used in the past to go after hackers who'd plundered others' computers for financial gain. Using a computer, prosecutors said, Drew had:

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 [Meier].

As the Citizen Media Law Project reiterated last week, Drew's alleged crime was, boiled down to the actual law as opposed to the emotional element of the case, "nothing other than failing to submit 'truthful and accurate' registration information when creating a MySpace profile. She would have been no less liable for misstating her height."

Think about this. Is there anyone using online registration systems who has always, without exception, given utterly accurate information? As the judge explained in his ruling, allowing Drew's verdict to stand would make everyone who's ever violated a terms of service, no matter how minor the violation, guilty of a crime as well.

The prosecutor, Thomas P. O'Brien, didn't care. As Wired News reported, he was proud of himself. Sure, he said, using the CFAA was "a risk," but his office "will always take risks on behalf of children."

The larger risk was, in fact, to liberty. O'Brien's willingness to twist a law to serve even a well-meaning end deserves contempt, not praise, because he's supposed to know better.

So, one might imagine, would a member of Congress. One would be wrong. Rep. Linda Sanchez, a California Democrat, has praised O'Brien for his overreach even as she urges passage of her federal legislation against "cyberbullying" -- a bill that could looks like a dramatic overreach of its own.

Make no mistake. What Drew did was despicable. But what the federal prosecutor did was, in its own way, just as bad.

Full post as published by MediaShift Idea Lab on July 07, 2009 (boomark / email).