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Prosecutor in Lori Drew case said to have gone too far

This article first appeared in the St. Louis Beacon, July 3, 2009 -  The U.S. attorney who prosecuted Lori Drew reached too far in trying to apply a federal anti-hacking law to bad behavior that the law never was meant to criminalize.

That is the view of media and Internet law experts here and around the country in the wake of U.S. District Judge George Wu's tentative decision to throw out Drew's conviction in the notorious MySpace suicide case from St. Charles County.

"The prosecutor had to reach too far to find a basis" for prosecution, wrote Mark Sableman, a media lawyer at Thompson Coburn.  "Criminal law has to give citizens fair notice of its reach, and no citizen would reasonably believe that signing up with MySpace could allow a prosecutor to bring criminal charges over any conduct that arguably violated MySpace's terms - especially considering the vague ... nature of many of those terms."

That is essentially what Judge Wu said in court on Thursday. If Drew's conviction on misdemeanor charges were to stand, "you could prosecute pretty much anyone who violated terms of service," Judge Wu said, according to Wired.com. "It basically leaves it up to a web site owner to determine what is a crime ... and therefore it criminalizes what would be a breach of contract."

The prosecutor wasn't apologizing however. U.S. Attorney Thomas O'Brien said he was "proud" of having brought the case even though he knew it “was a risk,” adding, he “will always take risks on behalf of children.” Drew's lawyer, H. Dean Steward said O'Brien should be ashamed. Steward noted that state and federal prosecutors in Missouri had decided that Drew hadn't violated any state or federal laws then on the books.

“Missouri prosecutors got it right” by not filing charges, he said. “How is it that Tom O’Brien’s people are that much smarter?”

Sableman said the connection "between MySpace terms of service and the misconduct Lori Drew was accused of was just too tenuous and unclear to support criminal liability. "What if MySpace's terms required users to 'be nice' to one another?" Sableman continued in an email. "Under the prosecutor's theory, Ms. Drew would clearly be in violation - she certainly wasn't nice - and therefore she would be subject to prosecution. That theory is just not consistent with the basic rules of what constitutes criminal conduct."

Nationally, other legal experts made the same points about the prosecutor going overboard and criminalizing conduct for which almost everyone is guilty, violating terms of service.

Drew was prosecuted under the Computer Fraud and Abuse Act for fake MySpace messages to 13-year-old Megan Meier, who committed suicide after reading them.

The CFAA was passed to prosecute computer hackers. Sableman said the law has occasionally been used beyond the classic hacker situation. It has been use against people who access a computer without authorization to steal or alter data.

The prosecution's theory in the case was that Drew had violated the CFAA by violating the terms and conditions imposed by the MySpace website, and that she used the site to inflict emotional harm on Meier.

But, from the time the prosecution was announced last year, Sableman and others questioned whether the law could be used in a criminal prosecution of a person for disseminating "inappropriate" content on a social networking site that encourages users to post content.

This doesn't mean that terms of service are irrelevant, Sableman wrote. "Terms of service can even tie in with criminal law in appropriate cases. For example, terms of service that limit one's access to a computer network tie in very clearly with laws that prohibit unauthorized access to a computer network. In that case, unlike the Drew case, computer users have a clear and reasonable notice that their breach of certain service terms may lead to criminal liability."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute.

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.