Govt: Cyberbullying is a New Phenomenon, as is Social Networking

[WSJ_law_blog]

Last month, when H. Dean Steward, the lawyer for Lori Drew in the MySpace suicide case, filed his three motions to dismiss, he wrote: “If the government’s statutory construction is correct and the [Computer Fraud & Abuse Act] criminalizes violating a website [terms of service], then the statute is void for vagueness because it fails to provide warning of what is prohibited and ensures discriminatory enforcement . . .”

Yesterday, the government, represented by AUSA Mark Krause, shot back, filing three oppositions to the failure to state a claim motion, to the vagueness motion and to the unconstitutional delegation of prosecutorial power motion.

Find background on the MySpace suicide case here.

In the government’s opposition to dismiss for vagueness, AUSA Krause writes that terms in the CFAA, such as “access” and “unauthorized” are “not so imprecise that people of common intelligence must guess at their meaning.” As for claims that the statute is susceptible to being arbitrarily enforced, Krause writes: “Cyberbullying is a relatively new phenomenon, as is social networking. It is, therefore, not surprising that there have been relatively few prosecutions in this area. . . . the statute does not threaten to criminalize widespread conduct. Because the government must show that defendant acted with the requisite criminal scienter, there is no risk of criminalizing innocent, let alone negligent behavior.”

As for the particular MySpace terms of service — or TOS, as they’re commonly referred to — that Lori Drew potentially violated, Krause ticks off the following:

using any information obtained from [MySpace services] in order to harass, abuse, or harm another person

soliciting personal information from anyone under 18

harass[ing] or advocat[ing] harassment of another person

promot[ing] information that the member knows is false or misleading

The trial in the MySpace case is set for October.