Wednesday, December 03, 2008

12.2.08 Lori Drew

This article was originally published in the 12/3/08 issue of Metroland.

The CRUMBS Night Out Concert / Lecture Series at the Linda last month was fabulous, with a good crowd, a killer set of music and a (so I’m told) compelling and interesting panel discussion about music licensing. We’re back again next week, Thursday December 11, with The Ramblin’ Jugstompers and an expert panel discussion about selling music in the digital age. So, if you like your music crusty and your information crisp; if you like your music really, really old and your business strategy modern as tomorrow; if you like your music moribund and your knowledge cutting edge; well, git yer lil’ butt down to the Linda Norris Auditorium next Thursday at 7.

The old adage “hard cases make bad law” refers to situations in which a court struggles to find a just solution but, given some some hole in the law or a quirk in the facts (which make it a “hard case”), the court mangles logic and precedent to come up with a result that might make a little sense for the case before it, but also sets in motion dangerous unintended consequences for future cases (which make it “bad law”).

This has nowhere been more true than in the case of Lori Drew, the Missouri lady who helped her teenage daughter and some friends set up a fake MySpace page for a fake hunky teenage boy, and then perpetuated a fake MySpace romance with a 13-year old neighbor girl they didn’t like. After heating up the ether with puppy love for a couple of weeks, Drew and her crew had their fake dreamboat dump the girl, cruelly, telling her that the “world would be better off without her.” Crushed, the neighbor girl committed suicide.

Could it get worse than this? No! Is Lori Drew reprehensible? Yes! Isn’t there a law that deals with situations like this?

Well, no, apparently there’s not. Criminal prosecutors (and, to be sure, criminal defense lawyers, too) secretly love cases like this, because the pinhead press goes ga-ga: you’ve got teenage romance, an evil Mom, suicide, and that awful, awful internet! Nancy Grace is holding, please pick up! But try as they might, and as much as they would have loved the national media spotlight, Missouri state prosecutors couldn’t find an indictable criminal offense in Lori Drew’s cruel hoax.

Like a sage Colonie cop told me once when I wanted to press charges against somebody who was being a complete idiot to me: “there’s no law against being an idiot.”

But wait, an enterprising young Federal prosecutor in Los Angeles figured if he could twist a federal computer hacking law just enough, maybe he could go for the gold. And he did. He grabbed a federal anti-hacking law, the Computer Fraud and Abuse Act, which makes “intentionally accessing a computer without authority” in order obtain things like national security data or information from a protected computer across state lines a criminal offense, and then somehow convinced a California grand jury that the law applied to Lori Drew.

The theory apparently was that by creating this fake boy and tormenting the poor 13-year old girl, Drew had violated the MySpace terms of service, and therefore Drew’s use of MySpace’s computer servers constituted “intentionally accessing” MySpace’s computers “without authorization” and a criminal offense under the CFAA. And MySpace’s computer servers are sitting in Los Angeles, so that’s why Lori Drew was charged there—it was the “scene of the crime.”

Does this sound right to you? Well, Lori Drew was convicted last week of misdemeanor counts under CFAA, as the jury rejected several more serious felony counts, but she’s still facing some serious jail time and fines. The headlines yesterday were blasting that the poor mom of the 13-year old girl wants Drew to get the max. And typically, there is virtually no critical analysis in the mainstream media of the idiocy, the charade-like nature of the whole proceeding. Why screw up a good blood-lust story with the truth?

Don’t get me wrong. If it was my 13-year old who’d died I’d be screaming for Lori Drew’s head, too, and I wouldn’t give a good goddamn how I got it. And the general idea of Lori Drew going to jail for what she did strikes me as just.

But not this way. This is a monumental abuse of the legal process. As some commentators have pointed out, the same logic used to prosecute Drew, based on her violation of a computer site’s click-through terms of service, would support a criminal conviction if you simply looked at a website that had terms of service that you had to give the website owner a beer, and you didn’t. If the website prohibited people named Ralph, and your name was Ralph. Off to jail for you!

Expect Drew’s conviction to be overturned, correctly. And then expect the mainstream media and Nancy Graces of the world to go berserk about lenient judges. Uh-huh. Whatever.


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