Judge Throws Out Criminal Conviction of Missouri Woman for Computer Fraud in Cyberbullying Case

September 14, 2009 by David S. Seltzer

As a Fort Lauderdale cyber crime criminal defense lawyer, I have followed the Lori Drew case with interest. Drew is the Missouri woman charged with violating MySpace’s terms of service in order to set up a fake account to “cyberbully” a 13-year-old neighbor girl who later committed suicide. Because there was no criminal law applying to Drew’s behavior, prosecutors charged her under the federal Computer Fraud and Abuse Act with violating MySpace’s terms of service. A Los Angeles jury convicted Drew, but U.S. District Judge George Wu signaled his intent to overturn that verdict on the grounds that the law is unconstitutionally vague. Earlier this month, he did just that, and the New York Times published an approving editorial Sept. 8.

This prosecution was always controversial, criticized as a legal stretch that made relatively innocent behavior into a crime. Those concerns were shared by Wu, who said the Computer Fraud and Abuse Act was never meant to apply to cyberbullying. The Act, aimed at hackers and thieves, prohibits Internet users from knowingly accessing a computer without authorization for certain purposes or with certain negative results, including injury to another person. MySpace’s Terms of Service, the legal notice most Web sites include, prohibits users from doing some of the things Drew did. The prosecution construed this to mean that Drew had accessed MySpace’s computers without authorization and violated the Act.

Internet civil libertarians, South Florida cyber crime defense attorneys and Wu all saw serious problems with this approach. Wu wrote that making violations of terms of service into a crime would make a federal crime out of every violation, no matter how small or common. For example, he wrote, people looking for dates online might lie about their age and appearance; parents with Girl Scout cookies to sell might send “commercial” messages to friends. This is unconstitutionally vague, Wu said; under previous court decisions, criminal laws must be clear about what behavior is prohibited. In essence, he declared parts of the Act unconstitutional. The New York Times applauded that move, saying that the average Web user has no reason to believe violating a terms of service agreement breaks federal law.

As a Miami cyber crime criminal defense attorney, I strongly agree. If the prosecution’s interpretation of the law had prevailed, it would have put Web site owners, rather than federal law, in charge of what is and is not a crime. Companies may put almost anything they like in terms of service agreements, including rules that might later be voided by a judge as unenforceable as well as rules that are routinely violated. For example, the terms of service at yahoo.com say users may not use Yahoo!’s services to send unsolicited advertising, chain letters or content that is abusive or harassing. As anyone with a Yahoo! email account knows, these rules are violated almost constantly. Prosecuting every violator of every terms of service agreement would be impossible, a waste of prosecutors’ time and potentially a violation of Internet users’ civil rights. That’s why I am pleased with Wu’s decision, despite the tragic set of facts leading up to it.