Feds Appeal Dismissal of Charges in MySpace Suicide Case

Government prosecutors are asking a federal appeals court to overturn a judge's dismissal of criminal-hacking charges stemming from a cyber-bullying incident that culminated in a teen's suicide.

U.S. District Judge George Wu of the Central District of California ruled in August that prosecuting a woman for violating MySpace.com's terms of service is an unconstitutionally overbroad use of federal law. United States v. Drew, No. 08-CR-00582-UA, 2009 WL 2872855 (C.D. Cal. Aug. 28, 2009).

The judge's ruling followed his earlier "tentative" grant of defendant Lori Drew's motion for judgment of acquittal. The decision was a major setback for the federal government's efforts to criminally prosecute her for using an online social networking site to harass a rival of her teenage daughter.

Drew, 49, of St. Louis, was to be sentenced July 2 after a federal jury convicted her of three misdemeanor violations of the Computer Fraud and Abuse Act. The law, which bars anyone from accessing a computer without authorization, typically is used to prosecute computer hackers.

Federal prosecutors sought a three-year prison sentence and $300,000 fine, the maximum allowed under the CFAA. Drew's lawyers sought acquittal or, alternatively, a sentence of probation with no fine.

The indictment originally charged Drew with three felony counts under the CFAA and one count of conspiracy.

According to the indictment, Drew's lack of authorization stems from her alleged violation of MySpace's terms of service, which require users to provide "truthful and accurate" information when registering for an account.

The TOS also bar users from harassing other site users, soliciting personal information from users under age 18 and posting another person's photograph without consent.

The charges were filed in California because MySpace's computer servers are located in Los Angeles.

According to the indictment, in September 2006 Drew and unnamed co-conspirators created a MySpace account using the name "Josh Evans," a fictitious 16-year-old. They posted a teenage boy's photograph with the profile.

Drew used the account to communicate with a 13-year-old girl who lived in her neighborhood, the indictment said. Published reports identify the girl as Megan Meier.

According to the reports, Meier and Drew's daughter were friends at one time but had grown apart. Drew allegedly created the account and the fictional character to find out what Meier had been saying about her daughter.

Josh's messages to Megan initially were flirtatious and friendly but later became cruel, the charges said. The last message sent to Meier in October 2006 said the world would be better off if she were dead.

Meier hanged herself in her bedroom shortly after seeing the message, prosecutors said. She reportedly had been treated for depression and attention deficit disorder.

In an effort to cover their tracks, Drew and her co-conspirators deleted the Josh Evans account, and Drew told an unidentified minor to "keep her mouth shut," the indictment said.

In his ruling Judge Wu said Congress never intended the CFAA to apply to terms-of-service violations. He noted that the law does not state, implicitly or explicitly, that it applies to breaches of contracts such as MySpace's TOS.

Applying the law in such a manner potentially could criminalize such trivialities as posting pictures of friends without their consent or lying about one's age on a dating site, he said.

The judge noted that Meier herself would have been in violation of CFAA because she lied about her age to obtain a MySpace account. She was 13 when she opened her account, although MySpace requires users to be at least 14.

"Given the 'standardless sweep' that results, federal law enforcement entities would be improperly free to 'pursue their personal predilections,"' Judge Wu wrote.

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The government is represented by assistant U.S. attorneys Mark Krause and Yvonne Leticia Garcia in Los Angeles.Drew is represented by H. Dean Steward in San Clemente, Calif., and Orin S. Kerr in Washington.