Federal authorities sidestep state prosecutors, experts fear long-term ramifications

A federal grand jury indicted 49-year-old Lori Drew of Missouri last Thursday, for allegedly masterminding an online hoax that ended with the suicide of her 13-year-old neighbor.

FBI investigators, working in a joint effort between branches in Los Angeles and St. Louis, accused Drew of masquerading as 16-year-old “Josh Evans” to befriend Meiers on MySpace in October of 2006, touching off a close friendship with the with the emotionally-vulnerable girl via the fake account. News reports indicate that Drew intended to gain insight into Meier’s thoughts on her daughter, after the two had an earlier falling out. When the relationship turned sour, however, Meiers was found to have hanged herself, due to a series of messages that included comments that the world would be better off without her.

Drew now faces four charges: one for conspiracy, and three for accessing protected computers without authorization, and each charge is punishable by up to five years in prison. Drew says that she didn’t create the Josh Evans account, and that she never used it to send messages to Meiers.

The case represents the first time that federal laws on unauthorized computer access were invoked in a social-networking case, as previously they only saw use in cases against hackers. Given the lack of federal laws against cyberbullying – a fact that state officials cited when they refused to press charges despite considerable pressure – FBI investigators chose to prosecute Drew’s alleged violation of MySpace’s Terms of Service (TOS), which prohibits registrants from, among other things, providing false information about themselves, and using MySpace to harass, harm, or solicit information from other people – especially minors.

Legal experts fear a potentially dangerous shift in precedent, as the successful prosecution of Drew would allow authorities to press criminal charges for violating a site’s TOS, which many web surfers do on a regular basis:

“Empowering terms of use to be key pieces of evidence in criminal matters – when [they] are generally thought of by the people who are entering into them as purely contract or civil matters – is something that should be done carefully,” said University of Pennsylvania law professor Andrea Matwyshyn. “I think you're going to have strong disagreement as to whether this is an advisable course to take.”

Jennifer Granick, who works as the civil liberties director for the Electronic Frontier Foundation, thinks such a prosecution would be far-reaching: “Theoretically, it applies to any use of a service in violation of the terms of service,” she says.

For example, if a website prohibits users from making negative comments about its owner, are users who choose to disregard this rule in violation of criminal law? When a user links a webpage that prohibits linking in its terms of service, are they subject to criminal prosecution?

Existing law does not provide an immediate solution, says Granick; rather, prosecutors are acting on outside pressure and the case’s emotional gravity.

If given the option to litigate, Granick told Wired’s Threat Level that she would be more than willing to fight on Drew’s behalf: “I think there is such an extreme reading here, and I do think it's dangerously flawed for other cases. I think it's scary and it's wrong and something should be done about it.”

For now, authorities scheduled Drew for arraignment in St. Louis, after which they will deport her to Los Angeles – MySpace’s headquarters and the location of its main server farm – for trial.

"And boy have we patented it!" -- Steve Jobs, Macworld 2007

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