By Peter Whoriskey
Washington Post Staff Writer
Thursday, July 24, 2008
The lawyer for a Missouri mother accused of creating a fake MySpace page to harass a 13-year-old girl is arguing that charges should be tossed out of court because if she is guilty, then so are millions of Internet users every day.
Lori Drew became the focus of national outrage after the girl committed suicide. Court papers filed yesterday seize on a possible weakness in the prosecution case that has been noted by several legal experts since the May indictment: While Drew's alleged behavior may have been wrong, there is no legal sanction against it.
In charging Drew, prosecutors relied on their belief that she, like countless others on social networks such as MySpace, created a fake identity -- in this case, a 16-year-old boy, "Josh Evans," who flirted with and then rejected 13-year-old Megan Meier.
Because the false profile violated MySpace policy, prosecutors charged Drew with four counts based on her accessing a computer system "without authorization." In doing so, they relied on a statute commonly wielded against hackers and information thieves.
Drew was charged with one count of conspiracy and three counts of accessing a computer without authorization and via interstate commerce to obtain information to inflict emotional distress. Each count carries a maximum penalty of five years in prison.
"The government, in its zeal to charge Lori Drew with something, anything, has tried to criminalize everyday, ordinary conduct: the wayward or misuse of a social-network website," defense attorney H. Dean Steward wrote in a motion to dismiss that was filed yesterday.
A spokesman for the U.S. attorney's office declined to comment.
Drew's alleged harassment of Meier is often cited as an example of boorish behavior on the Web, where the freedom of electronic communication has often devolved into vitriol and vulgarity.
But whether such behavior can be or should be legally regulated is disputed.
Prosecutors say Drew created the "Josh Evans" identity in order to strike up a flirty conversation with Meier, who had been friends with her daughter. After a few weeks of chatting, "Josh Evans" began to send Megan nasty messages. Finally, her father said, one suggested that "the world would be a better place'' without her.
In October 2006, soon after allegedly receiving the message, Meier hanged herself in her bedroom.
The resulting public outrage led state and federal prosecutors in Missouri to examine the case.
After a meeting in March 2007, "it was decided that the case should be declined for federal prosecution," according to an internal memo from the FBI's St. Louis office.
Later, however, federal prosecutors in the Los Angeles area, where MySpace's servers are, picked up the case.
"To my knowledge, it is the first case of its kind in the nation,'' U.S. Attorney Thomas P. O'Brien told reporters. "But when an adult violates terms on a MySpace account to gain information that creates this type of reaction, it caused this office to take a really hard look.''
While acknowledging that public sentiment runs against Drew's purported Web behavior, some legal experts and civil liberties groups argue that the prosecution's case would mean that millions of people who violate the terms of service at the Web sites they visit could become criminally liable.
Many people gloss over or simply skip the legal documents they encounter on the Web. But in the Drew case, the essence of the prosecution is that by violating MySpace's terms-of-service agreement, she was accessing the MySpace system "without authorization."
"The problem with this case is it makes a criminal out of virtually everybody online," said Mark Rasch, a former computer crime prosecutor at the Department of Justice and now a privacy and security consultant. "This was a hackers' statute -- a break-in statute. When we start to apply it to other conduct, it puts other people's liberty at risk," he said.
"The conduct that is abhorrent is leading this girl on -- and if they want to prohibit that, they should pass a cyber-harassment law," Rasch said.
Experts in the field also said that if violating terms of service is a crime, then the Web sites that write the agreements essentially could function as lawmakers or prosecutors.
"The possibilities for abuse are endless because Web site terms of service are arbitrary," said Orin S. Kerr, a former federal computer crime prosecutor and now a George Washington University law professor, who has provided informal advice to the defense. "A computer owner could set up a public Web site; announce that only Christians can visit; and then refer for prosecution any Jews, Muslims or atheists who visit the Web site out of curiosity."
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