Believe it or not, the criminal case against Lori Drew heads to trial next Tuesday. Federal prosecutors in Los Angeles indicted Drew last May for her alleged role in a hoax on MySpace directed at Megan Meier, a 13-year-old neighbor of Drew's who committed suicide in October 2006. Prosecutors claim that Drew violated the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, by accessing MySpace servers "without authorization" or "in excess of authorization" because she violated the social networking site's terms of service by creating an account with inaccurate registration information and engaging in hurtful speech.
Federal district judge George H. Wu still has not decided Drew's motion to dismiss the indictment for failure to state an offense, in which she argued that the CFAA does not apply to mere violations of website terms of service. According to Drew's attorney Dean Steward, who spoke with the Wall Street Journal Law Blog a few weeks ago, Judge Wu wants to hear additional testimony "regarding the MySpace terms of service and the way MySpace works" and apparently intends to bring this information out at trial. Why the court does not require the parties to present this evidence as part of a pre-trial hearing on the motion to dismiss the indictment is not clear -- the judge's approach seems to blur his responsibility for ruling on the proper interpretation of the CFAA with the jury's responsibility for determining Drew's factual guilt.
In recent developments, distinguished computer crime expert and law blogger Orin Kerr joined the defense team in mid-October. Just this week, Judge Wu indicated in a pretrial conference that he was inclined to grant Drew's motion to exclude evidence of Megan Meier's suicide at trial. The court apparently agrees with Drew's arguments that this is evidence is not relevant to the issue in the case (whether she accessed MySpace server's without authorization) and would unfairly prejudice her before the jury. This is obviously good thing for Drew, especially because the government successfully blocked her attempt to waive her right to a jury trial. (Under Federal Rule of Criminal Procedure 23, a criminal defendant cannot waive a jury trial without the consent of the government.)
As bad (and hopefully unusual) as Ms. Drew's conduct is alleged to have been, this case has important implications for all Internet users. If applied beyond the confines of this prosecution, the government's theory would impose criminal penalties for ignoring or violating a website's terms of service, something that probably millions of Internet users do every day, often without even knowing it.
We'll monitor the progress of the case in our database entry, United States v. Drew.