Lori Drew Case Hinges on Dangerous Technicality

Lori Drew was convicted of actions basically unrelated to what most people think she did, but even those convictions may not be what is best for you and me, or for the Internet.

According to court testimony, the 49-year-old Drew participated in an online ruse -- she pretended to be a 16-year-old boy on MySpace -- that ultimately led 13-year-old Megan Meier to hang herself in a bedroom closet. Assuming the testimony is accurate, the girl's death was a direct result of actions by Drew and a young woman who worked for her. It is hard to put into words the level of revulsion one feels about people who would do this sort of thing to another human, much less to an adolescent. It turns out, however, that acting in this vile way on the Internet is not illegal -- just immoral.

Drew lives in Missouri and accessed MySpace from there. Missouri law-enforcement officials decided to not bring charges in the case because they did not find enough evidence. Los Angeles U.S. attorney Thomas O'Brien, however, decided he would go after Drew because MySpace is based in L.A. and its servers are there.

O'Brien charged Drew, not with anything directly relating to Meier's death, but with accessing a computer without authorization because she violated MySpace's user agreement by, among other things, assuming a false identity. The case went to trial, and Drew was convicted of misdemeanor charges -- but found not guilty of similar felony charges.

There is a lot bad for the Internet in this case. A major issue is one that has plagued the 'Net since the days of dial-up bulletin boards: There can be total capriciousness as to where charges are brought. Drew was charged in Los Angeles despite the fact that both she and her victim lived near each other, more than 1,500 miles away from L.A.

The biggest issue, however, is that this case is attempting to make not reading and obeying a Web site's user agreement a criminal offence. The MySpace user agreement is almost 3,000 words long, hardly something that many MySpace users have even looked it, much less memorized.

At least MySpace has written its user agreement in English rather than in lawyer. The document stating Facebook's terms of use is more than twice as long as MySpace's -- and much less readable by ordinary, English-speaking humans. Before this case, the worst that would happen when you violated a Web site's terms of service is that you could get banned from the site. With this case, you could (theoretically) go to jail if you ignore or misunderstand a multi-thousand-word terms-of-service statement drafted by a paranoid legal intern drinking too much Jolt Cola.

If the conviction is not overturned on appeal, we will all be subject to the whims of publicity-seeking prosecutors half a continent away. That said, it looks as if the prosecutors may have a hard time making this conviction stick. They presented no evidence that Drew ever saw the user agreement -- in this case, ignorance of the rules may just be a viable excuse.

For the good of the 'Net, I hope the conviction is overturned. That does not mean I feel anything but revulsion when I think of what Drew and her helper did. They will not be able to escape the shame of their roles unless they again assume false identities. Maybe that is all the justice that can be expected in this case.

Disclaimer: There is a whole school at Harvard that deals with the difference between justice and the law, but I know of no statement from the school or the university about this case, so the above diatribe is mine.

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