MySpace Suicide Case Yields an Indictment . . . But Will it Hold Up?

[WSJ Law Blog]

Was Lori Drew surprised to learn that she committed a federal crime when she signed on to a social networking site using a fictitious identity? We wondered that today while reading an indictment that charges Drew — a 49 year-old resident of Missouri who registered on MySpace as “Josh Evans,” a 16 year-old boy — with violating 18 U.S.C. Section §1030, a broad statute that criminalizes computer fraud.

The backstory: As detailed in this January New Yorker article and today’s indictment, Drew — under the guise of “Josh” — struck up a flirtatious online relationship with Megan Meier, a 13-year old MySpace member, that lasted for several weeks. According to the indictment, “Josh” told Megan she was “sexi” and made other sexually suggestive overtures. Then, “Josh” told Megan he was moving away and that the world would be a better place without her. After “Josh” broke off the relationship, Megan hanged herself in her bedroom.

Here, the theory of the case seems to be that when Drew registered on MySpace she agreed to certain terms of service that required her to, among other things, provide “truthful and accurate registration information” and “refrain from promoting information that” she knew was “false or misleading.” For violating the terms of service, the feds have charged her with conspiracy to access MySpace without authorization.

“A very sympathetic set of facts,” concedes Orin Kerr, a cyberlaw prof at George Washington. “But highly dubious; a weak legal argument.” Kerr, who says he’s considering making an offer to represent Drew, told the Law Blog that there are two problems with the legal theory. First, the statute requires a conspiracy to intentionally access the site without authorization, and there’s no evidence that Drew read or knew the terms of service. Second, it needs to be a conspiracy to obtain information, and this was not. “It was a conspiracy to harass,” said Kerr, “but that’s not what the statue is about.”

He added: “It’s a dangerous theory because terms of service are violated so often, and that means there’s a choice courts must face: maybe any violation of any terms of service is a federal crime; maybe no violations are a crime; or maybe some violations are a crime. If a court allows it, then it means that if the government is looking for a criminal charge against someone, they just need to show someone violated a term of service. Do I expect the Ninth Circuit Court of Appeals to allow it? No.”