Grand Jury Issues Subpoena to MySpace in Megan Meier Suicide Case

The Los Angeles Times reported yesterday that a federal grand jury in Los Angeles has begun issuing subpoenas in the Megan Meier case, the Missouri teenager who committed suicide after a "boy" she met on MySpace abruptly turned on her and ended their relationship. According to the Los Angeles Times, the boy was allegedly Lori Drew, a neighbor who had pretended to be 16-year-old "Josh Evans" to gain Megan's trust. (You can read more about the case in a post I wrote in November.)

According to anonymous sources who spoke to the Times:

Prosecutors in the U.S. attorney's office in Los Angeles, however, are exploring the possibility of charging Drew with defrauding the MySpace social networking website by allegedly creating the false account, according to the sources, who insisted on anonymity because they are not authorized to speak publicly about the case.

The sources said prosecutors are looking at federal wire fraud and cyber fraud statutes as they consider the case. Prosecutors believe they have jurisdiction because MySpace is headquartered in Beverly Hills, the sources said.

If you are interested in the legal issues involved in this case, you can participate in a online chat on the Washington Post website from 11:00 AM to noon EST today on privacy, free speech, and anonymity on the Internet. Daniel Solove, who has written extensively about these issues, will be one of the participants and he expects to spend some time discussing the Meier case.

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Wire Fraud Statute

I've done some poking around, and it seems to me that the prosecutors are probably investigating a potential violation of the federal wire fraud statute, 18 U.S.C. § 1343:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation affects a financial institution, such person shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.

In my view, it's quite a stretch to argue that Drew engaged in a "scheme or artifice to defraud" MySpace. Traditionally, a "scheme to defraud" applied to an effort to deprive someone of money or property (and presumably to gain that money or property for oneself), and it's difficult to see how Drew's conduct fits this understanding.

In 1988, Congress amended title 18 (federal criminal law) to broaden the scope of the wire and mail fraud statutes by adding 18 U.S.C. § 1346, which defines "a scheme or artifice to defraud" to include a scheme to "deprive another of the intangible right of honest services." Congress clearly meant to expand the term beyond tangible property, but even this expanded understanding of a "scheme to defraud" doesn't fit Drew's conduct. It's hard to say that MySpace had any "right" to Drew's honest services (whatever that would mean in this context). Congress added section 1346 in order to address things politicians and public employees engaging in bribery or kickback schemes in violation of the public's trust, a situation that bears no resemblance to the Drew scenario.

Maybe there is a way to read "scheme or artifice to defraud" expansively without relying on section 1346, but some quick research didn't suggest any promising routes. It will be interesting to see if the US Attorney's Office goes forward with the prosecution and , if so, what a court will have to say about it.

Putting aside this technical question, the case is potentially troubling from a policy perspective. As Duncan Riley points out today on TechCrunch: "any ruling that using a false identity online constitutes a federal felony as internet fraud could have a chilling effect for online anonymity."