United States v. Lori Drew
Encyclopedia
United States v. Lori Drew was a criminal case in which Lori Drew was convicted and then subsequently acquitted of violations of the Computer Fraud and Abuse Act
(CFAA) over the "cyber-bullying
" of a 13 year old, Megan Meier. Meier died by suicide as a result of the bullying.
, was the mother of one of Megan Meier's former friends. Meier, also a Missouri resident, lived only four houses down the street from Drew.
Meier met Drew's daughter while she was in 7th grade at Fort Zumwalt West Middle School
and the two became friends. However, Meier was miserable at the school and transferred to a local Catholic school the following year. At this time, Meier informed Drew's daughter that she no longer wanted to remain friends.
During the summer of 2006, Drew became concerned that Meier was spreading rumors about her daughter. Drew, her daughter, and Drew's employee, Ashley Grills, came up with the idea of using a fake MySpace profile for a fictitious 16 year old boy with the alias "Josh Evans" to find out what Meier was saying about Drew's daughter.
Around September 20, 2006, the MySpace
account for the "Josh Evans" alias was created. At the time Drew operated the Josh Evans MySpace account, she was aware that Meier had been taking antidepressant medication.
Throughout September 2006, Drew used the fake MySpace account to contact Meier. Meier believed she was in contact with a 16 year old boy, Josh Evans. Around September 22, 2006, Drew, using the Josh Evans alias, told Meier she was "sexi". Continuing into early October, Meier and "Josh Evans" engaged in a flirtatious relationship.
Around October 16, 2006, the fictitious Josh Evans told Meier that the world would be a better place without her. Other MySpace members whose profiles were linked with the Josh Evans profile also began to harass Meier. Approximately fifteen minutes after this exchange, Meier's mother, Tina, discovered that her daughter had hanged herself from her bedroom closet.
Drew, after hearing about Meier's death, caused the Josh Evans MySpace account to be deleted. Drew also instructed another minor who knew about Drew's activities to "keep her mouth shut".
of the United States District Court
for the Central District of California on four separate counts. Thomas O'Brien, U.S. Attorney for the Central District of California, personally oversaw the prosecution of the case. The first count of the indictment was an allegation of conspiracy arising out of a charged violation of 18 U.S.C. § 371. The government alleged that around September 2006 through October 16, 2006, Drew and her co-conspirators agreed to violate the CFAA by intentionally accessing a computer used in interstate commerce "without authorization," in "excess of authorized use," and by using interstate communication to obtain information from the computer in order to inflict emotional distress in violation of 18 U.S.C. §§1030(a)(2)(c).
Counts Two through Four allege Drew violated the CFAA by accessing MySpace servers to obtain information regarding Meier in breach of the MySpace Terms of Service
on September 20, 26, and October 16, 2006.
filed an amicus brief in support of Lori Drew's legal position. The brief asserts that Lori Drew's indictment was wrongful because Drew's alleged violation of the MySpace terms and conditions does not constitute an "unauthorized access" or a use that "exceeds authorized access" under the CFAA statute, applying the CFAA to Drew's conduct would constitute a serious encroachment of civil liberties, and the application of the CFAA to a breach of a websites’ Terms of Service violates Due Process
and thereby voids the statute on the grounds of vagueness and unfair notice.
In his opinion, Judge Wu examined the jury's misdemeanor conviction by discussing each element of the offense. Judge Wu clarified that a misdemeanor conviction under 18 USC § 1030(a)(2)(C) requires that (1) the defendant intentionally accessed without authorization or exceeded authorized access of a computer, (2) the access of the computer involved an interstate or foreign communication; and (3) by engaging in this conduct, the defendant obtained information from a computer used in interstate or foreign commerce or communication.
Judge Wu found that many courts have held that any computer that provides a web-based application accessible through the internet would satisfy the interstate communication requirement of the second element. In addition, the Judge noted that the third element is met whenever a person using a computer contacts an internet website and reads any part of that website.
The remaining conflict centered on the first element. Specifically, the conflict revolved around the meaning of the undefined term of "unauthorized access." Judge Wu acknowledged that the government conceded that its only basis for claiming that Drew had intentionally accessed MySpace's computers without authorization was the creation of the false "Josh Evans" alias in violation of the MySpace Terms of Service. Therefore, Wu reasoned, if a conscious violation of the Terms of Service was not sufficient to satisfy the first element, Drew's motion for acquittal would have to be granted for that reason alone. However, Judge Wu held that an intentional breach of the MySpace Terms of Service could possibly fit the definition of an unauthorized or exceeding authorization access to MySpace computers.
Judge Wu's opinion also discussed the issue of whether rooting a CFAA misdemeanor violation in an individual's conscious violation of a website's Terms of Service would render the statute void due to vagueness. Wu concluded that this would render the statute void because there would be an absence of minimal guidelines to govern law enforcement, and there would be a lack of actual notice to the public.
Judge Wu cited several reasons for why an individual would be lacking in actual notice. First, Wu argued that an individual would not have notice because the statute does not explicitly state that it is criminalizing breaches of contract. Most individuals would be aware that a contract breach is not typically subject to criminal prosecution. Second, if a website's Terms of Service controls what is an "authorized" use or a use that "exceeds authorization," the statute would be unconstitutionally vague because it would be unclear if any or all violations of the Terms of Service would constitute an "unauthorized" access. Third, allowing a conscious violation of website's Terms of Service to be a misdemeanor violation of the CFAA would essentially give a website owner the power to define criminal conduct. This would further increase vagueness problems.
Judge Wu summed up his opinion by stating that allowing a violation of a website's Terms of Service to constitute an intentional access of a computer without authorization or exceeding authorization would "result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals." For these reasons, Judge Wu granted Drew's motion for acquittal. Government eventually decided not to appeal .
The Meiers do not plan to file a civil lawsuit over Megan's death. They do, however, want to see the law changed to criminalize behavior similar to that which led to the death of their daughter.
The federal Megan Meier Cyberbullying Prevention Act was introduced to Congress on April 2, 2009 by Rep. Linda Sánchez
. This bill was designed to set a federal standard definition for the term cyberbullying. According to Rep. Linda Sánchez, the behavior must be repeated, hostile, and severe to fall under the cyberbullying definition. However, the Act has been criticized for its broad language. If passed, the law would criminalize any online communication done "with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." This language would potentially implicate those who enjoy engaging in "trolling
" or "flame wars" on message boards.
, said "If this verdict stands ... it means that every site on the Internet gets to define the criminal law. That's a radical change. What used to be small-stakes contracts become high-stakes criminal prohibitions."
Professor Orin Kerr
, one of Drew's pro bono
attorneys, commented that he was "very pleased" with the overturned conviction as the case was "an extremely important test case for the scope of the computer crime statutes, with tremendously high stakes for the civil liberties of every Internet user."
While academics seem to view the outcome in a positive light, Tina Meier was disappointed by the outcome. After hearing about the overturned conviction, Tina Meier stated that she wanted to see Drew go to jail because she wanted the case to set a precedent: "I think it needed to let people know: You get on the computer, you use it as a weapon to hurt, to harm, to harass people, this is not something that people can just walk away from. This is many times the teen's lifeline." However, Tina Meier was glad that this case has brought about new and proposed legislation to deal with the issue of cyberbullying.
Computer Fraud and Abuse Act
The Computer Fraud and Abuse Act is a law passed by the United States Congress in 1986, intended to reduce cracking of computer systems and to address federal computer-related offenses...
(CFAA) over the "cyber-bullying
Cyber-bullying
Cyber-bullying is the use of the Internet and related technologies to harm other people, in a deliberate, repeated, and hostile manner. As it has become more common in society, particularly among young people, legislation and awareness campaigns have arisen to combat it.-Definition:The term...
" of a 13 year old, Megan Meier. Meier died by suicide as a result of the bullying.
Events leading up to the indictment and trial
Drew, a 49 year old woman living in MissouriMissouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
, was the mother of one of Megan Meier's former friends. Meier, also a Missouri resident, lived only four houses down the street from Drew.
Meier met Drew's daughter while she was in 7th grade at Fort Zumwalt West Middle School
Fort Zumwalt School District
Fort Zumwalt School District is headquartered in O'Fallon, Missouri, United States.The school district serves Saint Paul and portions of O'Fallon, Saint Peters, and Dardenne Prairie.-High schools:* Comprehensive** Fort Zumwalt North High School...
and the two became friends. However, Meier was miserable at the school and transferred to a local Catholic school the following year. At this time, Meier informed Drew's daughter that she no longer wanted to remain friends.
During the summer of 2006, Drew became concerned that Meier was spreading rumors about her daughter. Drew, her daughter, and Drew's employee, Ashley Grills, came up with the idea of using a fake MySpace profile for a fictitious 16 year old boy with the alias "Josh Evans" to find out what Meier was saying about Drew's daughter.
Around September 20, 2006, the MySpace
MySpace
Myspace is a social networking service owned by Specific Media LLC and pop star Justin Timberlake. Myspace launched in August 2003 and is headquartered in Beverly Hills, California. In August 2011, Myspace had 33.1 million unique U.S. visitors....
account for the "Josh Evans" alias was created. At the time Drew operated the Josh Evans MySpace account, she was aware that Meier had been taking antidepressant medication.
Throughout September 2006, Drew used the fake MySpace account to contact Meier. Meier believed she was in contact with a 16 year old boy, Josh Evans. Around September 22, 2006, Drew, using the Josh Evans alias, told Meier she was "sexi". Continuing into early October, Meier and "Josh Evans" engaged in a flirtatious relationship.
Around October 16, 2006, the fictitious Josh Evans told Meier that the world would be a better place without her. Other MySpace members whose profiles were linked with the Josh Evans profile also began to harass Meier. Approximately fifteen minutes after this exchange, Meier's mother, Tina, discovered that her daughter had hanged herself from her bedroom closet.
Drew, after hearing about Meier's death, caused the Josh Evans MySpace account to be deleted. Drew also instructed another minor who knew about Drew's activities to "keep her mouth shut".
Indictment
On May 15, 2008, Lori Drew was indicted by the Grand JuryGrand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
of the United States District Court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
for the Central District of California on four separate counts. Thomas O'Brien, U.S. Attorney for the Central District of California, personally oversaw the prosecution of the case. The first count of the indictment was an allegation of conspiracy arising out of a charged violation of 18 U.S.C. § 371. The government alleged that around September 2006 through October 16, 2006, Drew and her co-conspirators agreed to violate the CFAA by intentionally accessing a computer used in interstate commerce "without authorization," in "excess of authorized use," and by using interstate communication to obtain information from the computer in order to inflict emotional distress in violation of 18 U.S.C. §§1030(a)(2)(c).
Counts Two through Four allege Drew violated the CFAA by accessing MySpace servers to obtain information regarding Meier in breach of the MySpace Terms of Service
Terms of Service
Terms of service are rules which one must agree to abide by in order to use a service. Unless in violation of consumer protection laws, such terms are usually legally binding...
on September 20, 26, and October 16, 2006.
Amicus brief in support of defendant
On September 4, 2008, the Electronic Frontier FoundationElectronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
filed an amicus brief in support of Lori Drew's legal position. The brief asserts that Lori Drew's indictment was wrongful because Drew's alleged violation of the MySpace terms and conditions does not constitute an "unauthorized access" or a use that "exceeds authorized access" under the CFAA statute, applying the CFAA to Drew's conduct would constitute a serious encroachment of civil liberties, and the application of the CFAA to a breach of a websites’ Terms of Service violates Due Process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
and thereby voids the statute on the grounds of vagueness and unfair notice.
Jury trial and split verdict
This case was brought before a jury, and the verdict was announced on November 26, 2008. The jury was deadlocked on Count One for Conspiracy and unanimously found Drew not guilty of Counts Two through Four. The jury did, however, find Drew guilty of a misdemeanor violation of the CFAA.Misdemeanor conviction set aside
On November 23, 2008, Drew filed a motion for acquittal. Judge George H. Wu issued an opinion that granted Drew's motion for acquittal and overturned the jury's misdemeanor conviction on August 28, 2009.In his opinion, Judge Wu examined the jury's misdemeanor conviction by discussing each element of the offense. Judge Wu clarified that a misdemeanor conviction under 18 USC § 1030(a)(2)(C) requires that (1) the defendant intentionally accessed without authorization or exceeded authorized access of a computer, (2) the access of the computer involved an interstate or foreign communication; and (3) by engaging in this conduct, the defendant obtained information from a computer used in interstate or foreign commerce or communication.
Judge Wu found that many courts have held that any computer that provides a web-based application accessible through the internet would satisfy the interstate communication requirement of the second element. In addition, the Judge noted that the third element is met whenever a person using a computer contacts an internet website and reads any part of that website.
The remaining conflict centered on the first element. Specifically, the conflict revolved around the meaning of the undefined term of "unauthorized access." Judge Wu acknowledged that the government conceded that its only basis for claiming that Drew had intentionally accessed MySpace's computers without authorization was the creation of the false "Josh Evans" alias in violation of the MySpace Terms of Service. Therefore, Wu reasoned, if a conscious violation of the Terms of Service was not sufficient to satisfy the first element, Drew's motion for acquittal would have to be granted for that reason alone. However, Judge Wu held that an intentional breach of the MySpace Terms of Service could possibly fit the definition of an unauthorized or exceeding authorization access to MySpace computers.
Judge Wu's opinion also discussed the issue of whether rooting a CFAA misdemeanor violation in an individual's conscious violation of a website's Terms of Service would render the statute void due to vagueness. Wu concluded that this would render the statute void because there would be an absence of minimal guidelines to govern law enforcement, and there would be a lack of actual notice to the public.
Judge Wu cited several reasons for why an individual would be lacking in actual notice. First, Wu argued that an individual would not have notice because the statute does not explicitly state that it is criminalizing breaches of contract. Most individuals would be aware that a contract breach is not typically subject to criminal prosecution. Second, if a website's Terms of Service controls what is an "authorized" use or a use that "exceeds authorization," the statute would be unconstitutionally vague because it would be unclear if any or all violations of the Terms of Service would constitute an "unauthorized" access. Third, allowing a conscious violation of website's Terms of Service to be a misdemeanor violation of the CFAA would essentially give a website owner the power to define criminal conduct. This would further increase vagueness problems.
Judge Wu summed up his opinion by stating that allowing a violation of a website's Terms of Service to constitute an intentional access of a computer without authorization or exceeding authorization would "result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals." For these reasons, Judge Wu granted Drew's motion for acquittal. Government eventually decided not to appeal .
Related proceedings
In early December 2007, Missouri prosecutors announced they would not file charges against Lori Drew in connection with Megan Meier's death. At a press conference, St. Charles County Prosecutor Jack Banas stated there was not enough evidence to bring the charges. As a result, the federal government decided to pursue the case in Los Angeles, where MySpace is based.The Meiers do not plan to file a civil lawsuit over Megan's death. They do, however, want to see the law changed to criminalize behavior similar to that which led to the death of their daughter.
Legislative responses
After the Megan Meier incident, Missouri quickly updated its existing harassment law to cover bullying via the internet. The bill was approved on May 16, 2008. The updated version of the law removes the requirement for illegal harassment to be either written or over the telephone. These changes make the law applicable to harassment from computers, text messages, and other electronic devices. Within the past few years, over twenty states have enacted legislation to address bullying that occurs through electronic media. These laws include statutes that mandate that school boards must adopt policies to address cyberbullying, statutes that criminalize harassing minors online, and statutes providing for cyberbulling education. California, for example, has enacted Cal. Educ. Code §32261 that encourages schools and other agencies to develop strategies, programs, and activities that will reduce bullying via electronic and other means.The federal Megan Meier Cyberbullying Prevention Act was introduced to Congress on April 2, 2009 by Rep. Linda Sánchez
Linda Sánchez
Linda T. Sánchez is the U.S. Representative for , serving since 2003. She is a member of the Democratic Party.-Early life, education and career:...
. This bill was designed to set a federal standard definition for the term cyberbullying. According to Rep. Linda Sánchez, the behavior must be repeated, hostile, and severe to fall under the cyberbullying definition. However, the Act has been criticized for its broad language. If passed, the law would criminalize any online communication done "with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." This language would potentially implicate those who enjoy engaging in "trolling
Troll (Internet)
In Internet slang, a troll is someone who posts inflammatory, extraneous, or off-topic messages in an online community, such as an online discussion forum, chat room, or blog, with the primary intent of provoking readers into an emotional response...
" or "flame wars" on message boards.
Reactions
Reactions to the prosecution and verdict varied widely. Some legal experts expressed concerns that the initial jury verdict effectively criminalizes any violation of web site terms of service. For example, Andrew M. Grossman, senior legal analyst for the Heritage FoundationHeritage Foundation
The Heritage Foundation is a conservative American think tank based in Washington, D.C. Heritage's stated mission is to "formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong...
, said "If this verdict stands ... it means that every site on the Internet gets to define the criminal law. That's a radical change. What used to be small-stakes contracts become high-stakes criminal prohibitions."
Professor Orin Kerr
Orin Kerr
Orin S. Kerr is a professor of law at the George Washington University Law School, legal representation for the MySpace "cyber bullying" pioneer Lori Drew and a leading scholar in the subjects of computer crime law and internet surveillance. In the fall of 2006, he visited as an associate professor...
, one of Drew's pro bono
Pro bono
Pro bono publico is a Latin phrase generally used to describe professional work undertaken voluntarily and without payment or at a reduced fee as a public service. It is common in the legal profession and is increasingly seen in marketing, technology, and strategy consulting firms...
attorneys, commented that he was "very pleased" with the overturned conviction as the case was "an extremely important test case for the scope of the computer crime statutes, with tremendously high stakes for the civil liberties of every Internet user."
While academics seem to view the outcome in a positive light, Tina Meier was disappointed by the outcome. After hearing about the overturned conviction, Tina Meier stated that she wanted to see Drew go to jail because she wanted the case to set a precedent: "I think it needed to let people know: You get on the computer, you use it as a weapon to hurt, to harm, to harass people, this is not something that people can just walk away from. This is many times the teen's lifeline." However, Tina Meier was glad that this case has brought about new and proposed legislation to deal with the issue of cyberbullying.