MySpace Verdict Could Extend Criminal Liability to Most Internet Users, Observers Say
The verdict in the MySpace suicide case troubled some who followed it, and the decision should worry all Internet users, they said. A Los Angeles jury on Wednesday found Lori Drew guilty of three misdemeanor counts of unauthorized access to a computer and deadlocked on a conspiracy charge (WID Nov 28 p5). The prosecutor had sought felony convictions in the case. Drew used an account and the persona of a teenage boy to attract her daughter’s friend, who later hanged herself. Missouri prosecutors said Drew hadn’t violated any laws, but U.S. Attorney Thomas O'Brien in Los Angeles brought the case, arguing that the MySpace servers were located in California and that Drew had accessed them for purposes not allowed in the terms of service.
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The jury rendered a moral decision rather than a legal one, said Andrew Grossman of the Heritage Foundation. The case was “emotionally overwhelming” and prejudicial, he said, including, as it did, lots of information about the victim. Drew was charged under the Computer Fraud and Abuse Act, up to this point considered an anti-hacking statute, and the case raises questions about how much the law covers. By charging Drew under the act for violating the MySpace terms of service, the prosecutor criminalized a civil contract, Grossman said. Any Internet user could now potentially be criminally liable -- even by lying about one’s height on Match.com, he said. While it’s unlikely prosecutors will resort to trolling Internet sites for fudging and misrepresentation, people shouldn’t have to rely on the good graces of prosecutors, Grossman said. The case is also questionable from the standpoint of proving Drew’s intent to violate the terms of service, he said. That the jury returned with misdemeanor rather than felony verdicts probably speaks to its apprehension about the prosecutor’s case, Grossman said. “At the same time, it’s very disappointing,” he said.
Marc Rotenberg, executive director of the Electronic Privacy Information Center, called the verdict “troubling.” The Computer Fraud and Abuse Act was incorrectly applied in this case, Rotenberg said. The act was meant to criminalize electronic trespass and unauthorized access to computers, not to enforce terms of service agreements against giving untruthful information, he said. By interpreting the law so broadly, prosecutors end up prosecuting for charges unrelated to the underlying act, he said.
Identification on the Internet has always been a concern, Rotenberg said, but the idea that someone would be prosecuted for not disclosing information is worrisome. This issue is clearly a big theme for online privacy, he said.
Increasingly, regulators will look at the online environment and attempt to determine where rules and regulations for how to behave are needed, said Kathryn Montgomery, professor of communications at American University. The Internet and social networking sites can be wonderful places, she said, “but it can’t just be a free- wheeling frontier where you can do anything you want.” People will inevitably say this is the beginning of the end of the Internet as we know it, Montgomery said, but there needs to be a national dialogue on the rules of the road.