Proving again the adage that “bad cases make bad law,” the federal U.S. Attorney in Los Angeles today obtained an indictment of a woman named Lori Drew, a mother in Missouri who is alleged to have created a false profile on MySpace (posing as a teenage boy) that led a neighboring girl to commit suicide. Background on the case can be found in the Washington Post. The incident is a horrible and tragic one, and if the allegations are true, Ms. Drew could certainly face civil liability for her actions, and – at least under some states’ laws – she could face state criminal liability as well. But just because a grievous wrong may have been committed does not mean under our system that there should be a federal case to address the wrong. If the theory of today’s indictment is allowed to stand, it would represent a gross and inappropriate expansion of federal power to regulate speech and communications over the Internet.
It is important to understand the underlying “crime” here. The indictment does not really have anything to do with the alleged mistreatment of the girl in this case – the alleged crime is the asserted fact that Ms. Drew did not follow MySpace’s “terms of service.” The charges are based on an anti-hacker statute, and in this indictment, the “victim” is MySpace, not the girl. The government’s theory is that if someone signs up for an online service and then does not follow the rules of that service, the use of the service is “unauthorized” and thus (according to this indictment) a federal crime. The underlying statute, 18 U.S.C. § 1030, is appropriately used to prosecute people who hack into a computer system. The federal government in this case is stretching this statute far beyond that scenario by saying that it is now a federal crime to use a public website if you do not follow every rule set by the website.
This indictment should make all Internet users wary of signing up for any online service without reading each and every “term of service” – because if you violate any term, you are committing a federal crime. This could seriously chill the robust interactivity of the Internet. The inappropriateness of this federal indictment is made plain by where it was brought – in Los Angeles. Both the alleged perpetrator and the true victim – the young girl – are in Missouri, but the indictment was brought in Los Angeles, because that is where MySpace is based. At the end of the day, this tragic – but decidedly local – situation is one that is appropriately dealt with in Missouri, under the laws of Missouri, and not in a federal courthouse a thousand miles away.