Judge Weighing Dismissal in Cyberbullying Case

Perhaps federal prosecutors in Los Angeles are starting to get the message that not every bad act should be a federal crime. At what was meant to be a sentencing hearing, a federal judge indicated yesterday that he needs more time to weigh dismissing the indictment against Lori Drew, the St. Louis woman convicted under the Computer Fraud and Abuse Act-an anti-hacking law-for cyberbullying. “Using this particular statute in the particular way is so weird,” said Judge George Wu, according to an online Wired article. CDT couldn’t agree more, as we and others argued in an amicus brief last August. Drew created a fake MySpace profile to flirt with and taunt her daughter’s classmate, who tragically killed herself after being rejected by Drew posing as the teenage boy “Josh Evans.” As reprehensible as her conduct was, the theory prosecutors used to hold her responsible was nothing short of absurd-that by violating MySpace’s terms of service (lying about her identity) she had gained unauthorized access to the MySpace servers, a misdemeanor under a statute aimed at combating computer hacking. While the suicide was tragic and it is regrettable that Missouri’s harassment law did not at the time allow a state prosecution of Drew, allowing this conviction to stand would set a precedent that would turn any terms-of-service violation into a federal crime.

Perhaps federal prosecutors in Los Angeles are starting to get the message that not every bad act should be a federal crime. At what was meant to be a sentencing hearing, a federal judge indicated yesterday that he needs more time to weigh dismissing the indictment against Lori Drew, the St. Louis woman convicted under the Computer Fraud and Abuse Act – an anti-hacking law – for cyberbullying. “Using this particular statute in the particular way is so weird,” said Judge George Wu, according to an online Wired article. CDT couldn’t agree more, as we and others argued in an amicus brief last August. Drew created a fake MySpace profile to flirt with and taunt her daughter’s classmate, who tragically killed herself after being rejected by Drew posing as the teenage boy “Josh Evans.” As reprehensible as her conduct was, the theory prosecutors used to hold her responsible was nothing short of absurd – that by violating MySpace’s terms of service (lying about her identity) she had gained unauthorized access to the MySpace servers, a misdemeanor under a statute aimed at combating computer hacking.

While the suicide was tragic and it is regrettable that Missouri’s harassment law did not at the time allow a state prosecution of Drew, allowing this conviction to stand would set a precedent that would turn any terms-of-service violation into a federal crime. Under the government’s theory, anyone who uses a false name, age or address to protect his or her privacy, avoid spam, or just joyride on a social media service under an assumed name and identity, commits a federal crime. Thankfully, it seems Judge Wu is catching on: During the proceeding yesterday, he challenged the government by asking whether “conduct . . . done every single day by millions and millions of people” really is a misdemeanor. Well, it shouldn’t be.