You May Already Be a Criminal

Earlier this month, the U.S. Department of Justice brought criminal charges in Los Angeles against Lori Drew, the suburban St. Louis woman at the center of the widely reported MySpace suicide case. Not surprisingly, many people have voiced support for the indictment and relief that Drew had finally been brought to justice.

It's hard to find much sympathy for Drew, who allegedly created a false profile on MySpace, posing as a teenage boy, to engage a 13-year-old neighborhood girl, Megan Meier, in conversation.

Drew's twisted scheme was to "gather intelligence," she claims, regarding what was being said at school about her own teenage daughter. But Drew's conversations with Meier were allegedly cruel and harassing, and finally unbearable; Meier hanged herself, turning every parent's nightmare into a real-life horror.

But, beyond the heartbreak and emotion of the moment, there is a dangerous scenario developing in the margin of this tragic story, and anyone who uses the Internet should be extremely wary.

The Justice Department has blundered terribly in this case. By reaching for the same statute used to prosecute computer hackers, this indictment has turned the law into a blunt legal instrument that turns every violation of a site's terms of service into a federal crime.

Usually, a case like Drew's would be handled under state or local law, but Missouri did not, at the time, have a criminal statute that would reach Drew's conduct, unlike many other states that, for example, have criminal statutes against intentional infliction of mental distress.

So, into this murky legal gap wades the Justice Department. Finding nothing appropriate in federal statutes to charge Drew with, the Justice Department decides to file the serial numbers off a federal computer hacking law and charge her with breaching the MySpace "terms of service" agreement, on the grounds that she accessed protected computers without authorization.

The indictment cheapens a tragic circumstance with its legal sideshow. If the allegations are true, Drew could certainly face civil liability for her actions, and -- at least under many states' laws (including a newly passed Missouri law) -- she could face state criminal liability as well. But the wrongness of Drew's alleged actions, however, does not and should not make this a "federal case."

If the theory of this 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 that 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 uses an Internet Service Provider or signs up for a Web site or other 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.

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