« Gold Star Mother's Donations Stolen | Main | The Daily DimWit: White Boy Fails Nihlism 101 »

December 05, 2008

The Internet as a Responsibility-Free Zone

What we do in life
echoes in eternity...

- Gladiator

The Lori Drew verdict poses some fascinating questions about the intersection of technology, free speech, and personal responsibility.

There are several intertwined questions here. I'm not sure the charging statute/verdict addressed them all:

1. Is it a crime to verbally harass someone you know to be in a fragile mental state (in this case, a person on anti-depressants) under an assumed identity?

2. Does it make a difference if, as a result of that verbal harassment, the victim subsequently commits suicide?

3. Is it a crime if, in order to assume the false identity under which you harass the victim, you violate the service agreement (TOS) of a commercial service provider which explicitly prohibits use of their service under assumed identities and explictly prohibits harassment and bullying?

4. Do such service providers have a right to enforce their term of service agreements against users who use their services for fraudulent and/or criminal enterprises?

5. Does society have a right/interest in prosecuting misuse of commercial term of service agreements against users who use these services for clearly fraudulent and/or criminal enterprises?

Emily Bazelon argues that prosecution of Internet cyber-bullying is a scary slippery slope that will somehow lead to the government going after mischievous web surfers whose only crime was a desire for anonymity. As one of those "mischievous types", the Editorial Staff finds itself not entirely unsympathetic to this view:

In 2003, George Washington University law professor Orin Kerr wrote a prescient law-review article arguing for the former, narrower interpretation. The legislative history for the CFAA indicates that Congress wasn't trying to prosecute any or every breach of contract. Would lawmakers really want to go after people, even potentially, for giving a fake name to register for a Web site, for example (dressed up as the bad act of giving "false and misleading information")? Nor, for that matter, does it look as if Congress intended to base prison time on the MySpace contractual provision that bars use of the site that "harasses or advocates harassment of another person" or that is "abusive, threatening, obscene, defamatory, or libelous." It's one thing for MySpace to kick someone out for acting like a troll or even for the troll's target to sue her. It's another thing entirely to throw the weight of the government behind a criminal investigation and conviction for what usually just amounts to mischief in cyber-contracts.

In the Lori Drew prosecution, the theory was that Drew was on the hook for setting up the fake profile, then using it to inflict emotional distress. Three of the four counts against Drew were for "unauthorized access" of MySpace simply because Drew violated the MySpace terms of service to which she agreed, according to Los Angeles U.S. Attorney Thomas O'Brien's dubious interpretation. The jury didn't think the prosecutors proved the emotional distress and so dismissed the fourth count. And they knocked down the other charges from felonies to misdemeanors. But they did buy the idea that Drew "intentionally" broke the law, even though all that seems to mean is that she clicked "I agree" in response to a long series of legalistic paragraphs that just about nobody really reads. It's hard to imagine even these misdemeanor convictions standing up on appeal.

Kerr joined Drew's defense team, and his post last Friday on the Volokh Conspiracy blog gets at how just how ludicrous it is to imagine every breach of a Web site's terms of service as a federal crime. (Kerr: By visiting the Volokh Conspiracy, you agree that your middle name is not Ralph and that you're "super nice." You lied? Gotcha.) Of course, prosecutors aren't really going to investigate all the criminals Kerr just created with the terms of service in his post. But this is not a road we want to take even one baby step down. As Andrew Grossman argues for the Heritage Foundation, laws that make it seem as if "everyone is a criminal" are generally a bad idea. Most of the time, they're unenforceable, and then every once in a while, they're used to scapegoat someone like Lori Drew.

What about a law written expressly to address cyber-bullying? Such a statute could presumably direct prosecutors to go after only the worst of the Internet meanies. Or, then again, maybe not. A proposed bill before Congress is far broader. It targets anyone who uses "electronic means" to transmit "in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person." The penalty is a fine or imprisonment for up to two years.

On the other hand, (and I advance this argument not having read the government's case, which I understand may be overbroad) attorney Nick Ackerman makes an interesting case for prosecuting such acts:

Lori Drew, an adult woman, lied and misrepresented herself as a young boy to harass 13-year-old Megan Meier. Drew knew Megan was emotionally fragile. Instead of openly harassing Megan, Drew used her computer to hide behind the anonymity of a social networking website.

This type of computer crime is precisely what the Computer Fraud and Abuse Act was intended to address. The statute is not, as some have suggested, limited to hacking, nor does the Drew prosecution make a criminal out of everyone who lies on the Internet.

While this is the first time the statute has been used to prosecute cyberbullying, Drew's conviction was based on violating the express language of the statute — unauthorized access to the MySpace website by violating its terms of service, which are designed to protect the public.

Those terms required Drew to provide truthful registration information and to refrain from using the account to threaten or abuse others. Her willful violation of MySpace's terms in registering as a fictitious boy to harass Megan was unquestionably "without authorization."

Under the statute, website owners have the right, much like the property owner who posts a "No Trespassing" sign, to spell out, as did MySpace, what access or use is "unauthorized." The concept that Drew should not be held responsible if she did not read MySpace's terms of service is as absurd as arguing that if you default on your mortgage payments, your bank cannot foreclose on your house because you did not read your mortgage agreement.

If your irony meter spiked here, you're not the only one.

We would seem to live in a country where (as Ms. Bazelon indeed argued) no one can ever be held responsible for anything, including their own fecklessness.

I think we can all agree that reasonably competent adults of average intelligence understand that even if though they may choose not to read the terms of service on sites such as MySpace, those terms continue to exist nonetheless. We cannot simply wish them away, nor can we wish away our own fundamental dishonesty if we, having been asked to agree to something and further, having been asked if we've read it before going on, click "yes" when that is in fact not true. This is what is called, in the rude parlance of personal responsibility, a "conscious decision"; much like choosing not to familiarize yourself with the warnings in your car's owners manual and then complaining about not being warned when you do something the manual expliticly warns you NOT to do.

Ms. Drew, as it turns out, used someone else's MySpace account to harass young Megan; making the question of whether she violated the TOS agreement an interesting one. However, subsequent events leave no doubt whatsoever that she knew what she had done was wrong, nor that she tried to cover her tracks:

Krause said in the documents that Drew enjoyed describing the scheme to friends and even told her hairdresser about it, saying that Megan "may have had the hots for the fake guy."

The assistant, Ashley Grills, who is to testify for the prosecution, warned "they would get in trouble if the scheme was uncovered," according to the memorandum.

"However, defendant assured Grills that they would not and, in any event, many people created fake identities on the Internet," Krause wrote.

The prosecutor maintained that Drew was aware of Megan's vulnerabilities, knew she was on medication for depression and had even administered the medications when Megan was visiting Drew's daughter. He said Megan's mother confided in Drew that she was worried about her daughter's mental health.

When she learned of the suicide, Drew told her "co-schemers" to delete the MySpace account, Krause wrote. He also said she called another girl who had become part of the MySpace conversation and told her to "keep her mouth shut" and to "stay off the MySpace."

The other interesting aspect of this case is that Missouri prosecutors had concluded their state law was inapplicable to the case. The charges were eventually filed by a federal attorney in Los Angeles.

Normally the Editorial Staff are philosophically opposed to anything resembling the prosecution of hate speech. Words, in the end, no matter how hurtful, are just words. We alone can choose how much power they will have over us: unlike a bullet or a knife, we can erect defenses against them using no more than our minds.

We find ourselves more sympathetic to the government's argument regarding the enforcement of terms of service agreements. When a site is misused to defame or harass an innocent third party, it raises interesting property right questions. Does society have an interest in protecting the rights of site owners? Considering that they can incur significant monetary costs to run a web site (as well as the risk of lawsuits arising from the failure to police the actions of their commenters) it seems not unreasonable to assert a "trespassing" argument when users intentionally violate the terms of service to commit malicious or destructive acts.

Also, we find the idea that the Internet is some sort of "last frontier" where actors may say and do anything, no matter how harmful to real people, to be little short of ludicrous. Difficult as it may be, the law is going to have to deal with the fact that technology is becoming more and more invasive, making it easier for the Internet to be used as a weapon against innocent parties.

What say you?

Posted by Cassandra at December 5, 2008 07:43 AM

Trackback Pings

TrackBack URL for this entry:
http://www.villainouscompany.com/mt/mt-tb.cgi/2575

Comments

Lori Drew acted like a mentally stunted teenager herself.

One of the problems I've seen as I've read about this case in many places is that because of Lori's idiotic and malicious behavior and because it resulted in Megan killing herself, the real roots of the whole situation are not taken into account.

There was a teenage spat, and Megan was actively a part of it (not a mere victim of the spat, but an active participant in bad behavior of her own). What Lori did that made the situation end horrifically was intervene as though she were one of the teenagers herself, but with the experience and resources of an adult. At the very least, to me, that calls into question her parenting and ability to operate around minors.

We are all so horrified by the end result - that Megan killed herself and that it most certainly was connected to what Lori Drew did - that we want laws to prevent this. The thing is, cases like this are not what the law would be used to enforce. It never happens that way. Teenagers have been having nasty spats since teenagers were invented (and oh yes, they were invented - adolescence is not a historical fact). Parents who intervene as if they were teenagers rather than as the adult are setting kids up for massive fails.

It sounds hard hearted to say that really Lori Drew didn't do anything that would provoke a prison sentence because someone is dead. But in reality she didn't. She posed as someone else online and said mean things. She lied. That's probably at least half of MySpace right there.

Megan's parents want someone to pay and someone to blame, as would I. You don't just suck up or get over losing a child. But as much as we all want to ease their heartache, there isn't much case here.

There might be, however, something to legally limiting Lori Drew's contact with people under the age of 18.

Posted by: airforcewife at December 5, 2008 09:38 AM

I think it all depends on the language of the statute, actually.

She wasn't charged with causing Megan's death.

She was charged with fraudulently using MySpace in violation of the TOS agreement to harass another MySpace user.

Now we get into, "What constitutes harassment?"

If you intentionally try to make a mentally ill person believe something that is not true (and you know this person is impaired), this is not negligence. It's intentional infliction of emotional distress.

Doesn't matter whether you do it online or in real life, really. Machts nichts.

The question here is that there is a statute that prohibits Internet users from using the Internet in the commission of acts which are actionable in real life: fraud, intentional infliction of emotional distress, harassment, etc. This is similar to statutes which elevate ordinary crimes committed with a handgun to felonies - the means increases the severity of the act.

IMO, the statute is probably too vague. The fact that Orin Kerr had to make an argument at all as to what it says shows me it wasn't narrowly tailored, which is not uncommon with statutes coming out of Congress.

So the question is, what should be done? Amend the statute or allow this case to become precedent?

Posted by: Cassandra at December 5, 2008 09:49 AM

That's what's so troubling about this case, though.

Drew wasn't charged with causing Megan's death, however "but for" her suicide it's pretty obvious this case would never have seen the light of day.

That's what happens, though, when we stretch law to achieve social ends. I'm not sure if it was stretched too far here. I think it may have been.

I would have preferred a Missouri solution over a federal one, but that didn't happen. The thing is, these sorts of things are happening more often. How do we go after cyber stalkers? That's a real problem the law needs to address.

Posted by: Cassandra at December 5, 2008 09:54 AM

I think though, that her willful intent to get revenge on a child because her daughter's feelings were hurt is sick.

I *know* that she is being charged with violating the TOS. However, that is the way she sought revenge, so her motives for doing so should certainly be a part of this issue.

Posted by: Cricket at December 5, 2008 10:47 AM

I'll admit I read this pretty fast, but I don't understand how violating the TOS can or should have amy repercussions outside what the company imposes on her (revocation of service, etc).

HOWVEVER, I think that if a law were written well enough, it sounds like she could have been prosecutable under cyber stalking. IIRC, here in California what she did would fit all the parameters of cyber stalking.

Posted by: FbL at December 5, 2008 10:53 AM

I think everyone agrees that under normal circumstances, mere unpleasant words don't rise to an actionable level.

What makes this different is that there was:

1.an intentional conspiracy (and that's not too strong a word)

2. by someone who knew the victim was mentally ill

3. to exacerbate her mental illness (depression) by means of fraudulent harassment

What you have to ask yourself here is, would a reasonable adult of ordinary intelligence realize that if you did such a mean thing to someone already on depression meds and in a fragile state, that suicide could (not WOULD, because that's not the legal test) but could be a possible result of your actions?

Let's face it: the harassment was not unintentional. It was both deliberate and malicious, and moreover calculated to produce pain and suffering (emotional distress).

If this is actionable in law and if the statute does indeed cover harassment via "unauthorized access", I'm not sure why violating the TOS isn't germane. It does, in fact, bring her actions under the charging statute.

Posted by: Cassandra at December 5, 2008 11:09 AM

...especially when MySpace could have incurred civil liability for Drew's actions. That is my point here: does society have an interest when something like this occurs in punishing the fraudulent offender, both to protect innocent victims AND site owners?

Posted by: Cassandra at December 5, 2008 11:12 AM

The question in my mind is why should there be a need for "Cyber" laws, per se, at all.

What Ms. Drew did was harrasment. That she did it on a computer is irrelevent. She committed a crime and can be prosecuted.

What Ms. Drew also did was breach of contract. That she did it on a computer is irrelevent. She committed a breach and can be sued.

"Cyber Crime" doesn't happen in "Cyber Space". It happens in "Meat Space" and should be treated accordingly.

Posted by: Yu-Ain Gonnano at December 5, 2008 12:31 PM

Having a daughter who is rapidly approaching this phase, this caught my attention a bit more than usual. It's my understanding that there was a series of chat sessions between Megan and Drew, and that the original plan was to first have her *fall for* the created persona and then *break up* harshly with her. (Sort of the cyberversion of the scene from "Carrie") If that is what happened, how can this be considered "harrassment"? My understanding of the line of demarcation for harrassment lies within the confines of "unwanted or unsolicited" actions. This was, at least in my opinion, not the case if they had been *chatting* frequently on MySpace.
Don't get me wrong, I'm not advocating for or against Drew. I know I would want to *do something* if it had been my daughter. I just don't think there is a criminal case here. A sad series of events with a tragic ending, yes.

Posted by: DL Sly at December 5, 2008 12:33 PM

The internet can be compared to a cyber version of Deadwood, the HBO series. Even in Deadwood there was the knowlege and understanding that behavior is either right or wrong. This being based on virtues, ethics, and morals defined as those behaviors and beliefs that enhance life as opposed to those behaviors and beliefs that are inimical to health and life.

Except maybe OJ's arrogance and ignorance which has finally caught up with him. Sometimes you can get your "stuff" back but it may be more stuff than you anticipated. Drew will be held captive by what little conscience she has for contributing to the destruction of another...Justice comes in many forms!

Posted by: vet66 at December 5, 2008 01:00 PM

That's an interesting point, Sly.

Drew was charged with:

1. one count of conspiracy
2. three counts of accessing protected computers without authorization to obtain information to inflict emotional distress

Drew admits she went onto MySpace "to get information about what Megan thought".

She did it under an assumed name (in violation of the TOS). She also admits intending to cause emotional distress.

"But for" her use of MySpace under these fraudulent terms, Ms. Drew would not have had that kind of access to Megan, would she? Essentially she used the Internet as a tool to do something she would never have been able to do in real life.

In my mind the only real question is whether violation of a TOS on MySpace fits the definition of a 'protected computer' for the purposes of the charging statute.

Posted by: Cassandra at December 5, 2008 01:26 PM

If that is what happened, how can this be considered "harrassment"?

But that's not what happened.

Megan did not knowingly invite interaction with Ms. Drew. That's the point here.

You are assuming voluntary consent where none exists.

Posted by: Cassandra at December 5, 2008 01:29 PM

...arguably for two reasons:

1. by virtue of Megan's mental state. (one could argue the entire conspiracy rested on her being unbalanced to begin with).

2. by virtue of the TOS contract (people agree that they are who they say they are when posting on MySpace).

Yes, an adult would have known better. But she wasn't an adult.

Just framing the arguments :p

Posted by: Cassandra at December 5, 2008 01:31 PM

FWIW, I'm not necessarily saying I like the idea of prosecuting this type of offense.

I just find it raises some interesting issues. How do we prosecute offenses conducted by Internet if we can't hold people criminally liable for fraudulent misrepresentation?

Posted by: Cassandra at December 5, 2008 01:33 PM

Note: I am NOT a lawyer, I just happen to work in the online space.

In my mind the only real question is whether violation of a TOS on MySpace fits the definition of a 'protected computer' for the purposes of the charging statute.

It shouldn't. A publicly accessible system with no safeguards against anonymous/world access (in fact, MySpace's model relies on world access to their system) is by definition NOT a protected computer. Had she used someone else's username and password to access their account, you could make a better case for that.

Now, I do believe this should fall under "cyber-stalking" which really should already be covered (as suggested by Yu-Ain) by existing stalking statutes. And honestly, what this really looks to me is an excellent civil case that should have been sought with an eye towards destroying Ms. Drew financially. Not all crime needs to have the People as an aggrieved party. True justice CAN come from the civil courts.

And finally, the TOS agreement should NEVER be enforceable through criminal law. Frequently, software companies can and do put completely unenforceable legal requirements into their TOS and EULAs. The benefit of the TOS and EULA is that it provides legal protection (in civil court) to the webhost, so that they cannot be found guilty of negligently allowing behavior like that which Ms. Drew engaged in. In other words, the TOS is there to cover MySpace's ass. Nothing more.

To use a TOS as proof of "unauthorized access" is laughable. Access was granted (and even encouraged by MySpace), she merely misused their website in an effort to harass (and ultimately kill... intentionally or not) Megan. Without the TOS in place, Megan's parents could have (more than likely) sued MySpace for providing a venue to allow Ms. Drew to do what she did. In fact, I'd argue that without the TOS, they could be considered an enabler of the activity.

Posted by: MikeD at December 5, 2008 01:45 PM

"But that's not what happened."

I beg to differ.

"Krause previewed the government case in court documents filed this week, portraying Drew as a scheming conspirator who enlisted her own daughter and an 18-year-old assistant to taunt Megan and entice her into an Internet romance with a boy who did not exist."

Posted by: DL Sly at December 5, 2008 01:46 PM

Oh, damn, hit the enter button before I was done......

"Drew enjoyed describing the scheme to friends and even told her hairdresser about it, saying that Megan 'may have had the hots for the fake guy.'"

How would she know if Megan had the hots for her fake *boy* if they weren't communicating in some fashion? And wouldn't this communication presuppose that the conversations from that point on were therefore solicited?

Posted by: DL Sly at December 5, 2008 01:51 PM

Like I said, I'm not advocating for or against Drew. I'm just wondering whether or not this can really be considered harrassment as defined by every *Sensitivy Training Seminar* I had to attend. Surely a violation of the TOS, so delete her ID and ban her IP from the website. But criminal prosecution? I. Just. Don't. See. It. Especially from an LA prosecutor for a Missouri case -- and one, I might reiterate, the Missouri prosecutor's office didn't see a need to pursue at all.

Posted by: DL Sly at December 5, 2008 01:55 PM

MikeD -
The dead girl's profile was "friends only", and as the login was not for the scum's own name, that sure sounds like a username not her own.

Posted by: Foxfier at December 5, 2008 01:59 PM

DL Sly,
If Ms. Drew had hired a 13 year old boy in her neighborhood to woo Megan into a relationship for the express purpose of later inflicting emotional harm would you not call that harrasment?

Posted by: Yu-Ain Gonnano at December 5, 2008 02:30 PM

How would she know if Megan had the hots for her fake *boy* if they weren't communicating in some fashion?

Huh???? Communicating with whom?

The mother WAS the boy. But Megan didn't "consent" to communicate with the mother. She thought she was communicating with a boy.

Your whole "defense", such as it is, rests on arguing that a teenaged girl consented to communicate with an adult woman who had entered into a conspiracy to hurt her.

But this isn't the case at all.

And wouldn't this communication presuppose that the conversations from that point on were therefore solicited?

Again, by whom?

Did Megan "ask" to talk to Drew?

No. She clearly did not. Would any of this have happened, had she realized she was talking to the mother of a schoolmate?

Probably not.

The entire "conspiracy" rested on gaining the confidence of a girl Drew *knew* to be emotionally unstable as well as underage. Not hard for an adult to do, is it, especially if you're willing to lie and violate the TOS agreement of an online community to do so.

How do you have such communities if people can get away with using them to prey on each other? The fact is that this wouldn't have worked in real life.

It required the cloaking anonymity of the Internet.

Now I may agree with Mike that this makes a better civil case.

I'm not sure there aren't (or shouldn't be criminal sanctions here too - what this woman did was unconscionable). The interesting question, as I said before, is: was this statute stretched too far to accomplish that?

FWIW, different jurisdictions, different statutes. Not sure MO "didn't want to" prosecute. The fact that they are amending their law implies they DO feel there is a strong public policy interest in preventing this type of thing from happening again.

They may just not have had a statute that allowed them to. The LA atty. had a different statute to work with.

Posted by: Cassandra at December 5, 2008 02:31 PM

Not all crime needs to have the People as an aggrieved party.

True. But civil lawsuits are extremely expensive, and having lost a daughter to suicide, few parents are going to want to take on the stress and expense of one.

My question, additionally, was whether there is a public policy interest here that ought to be protected (and that is not the purpose of civil suits - compensation of the victim is).

Posted by: Cassandra at December 5, 2008 02:35 PM

MikeD -
The dead girl's profile was "friends only", and as the login was not for the scum's own name, that sure sounds like a username not her own.

No, she registered the username herself. As for the "friends only", that feature of MySpace prevents users from looking at the personal profiles of the friends only account unless the account owner makes them a 'friend'. This is normally done by request from the new person to the account holder to 'make me a friend'. It just so happens that I personally know everyone on my "friends list". Not everyone can say that.

Let me try it like this.

Drew didn't need to see Megan's private data to know what her account was, her daughter had that information and told her what Megan's account name was. Drew then creates her 'fake profile' and messages Megan portraying herself as a 15 year old boy. Technically, so far none of this violates the TOS set up by MySpace. The TOS violation occurred when Ms. Drew began harassing Megan. There was no "unauthorized access" as the account of "the fake boy" belonged to Ms. Drew. Megan freely granted "the fake boy" friend status, there was no hacking involved. To treat this as an unauthorized access case is ridiculous.

The closest you could claim is phishing.

Posted by: MikeD at December 5, 2008 02:49 PM

My question, additionally, was whether there is a public policy interest here that ought to be protected (and that is not the purpose of civil suits - compensation of the victim is).

True enough, I have not really answered this or clearly answered the main question.

Did they stretch the existing law too far? Yes. There was no "unauthorized access". If I give you a username and password to enter and use my site, you have authorization. If you misuse it, that's your fault, and I can remove your access, but you are still an authorized user who abused your access... NOT a hacker (in my reading, the intent of the original law).

Is there a societal good in preventing actions like Ms. Drew's. Absolutely. I consider this to be nothing more than an advanced version of yelling "fire" in a crowded theater. You are exercising free speech in an irresponsible way that is very likely to cause physical harm to another person. However, I'd simply charge her with the same crime as you would had she yelled "fire" in that theater (public disturbance?). The medium used is immaterial, the result is the same.

Posted by: MikeD at December 5, 2008 02:57 PM

Posted by: Obloodyhell at December 5, 2008 02:58 PM

> here in California what she did would fit all the parameters of cyber stalking.

The whole concept of cyberstalking is itself ludicrous.

Stalking is socially disallowed because it, often enough to be of concern, results in a violent act at the end. Beyond that, its an invasion of privacy issue -- hardly a major social threat.

"Cyberstalking"? What, am I going to stab you with my cyberknife? Shoot you with my virtual reality gun? Rape you with my 3D graphic penis? What?

Cyberstalking is one more bullshit law which adds to the vast number of other recently (as in the last 50-odd years) defined but utterly ridiculous laws which the government can throw at you at a bureaucrat's whim.

Either you did harm to someone or you didn't. That's battery.

Either you threatened someone, or you didn't. That's assault.

Either you deceived someone, or you didn't. That's fraud.

In very few cases do you need "special versions" of the laws which deal with the mechanisms involved.

Either find an actual thing to charge 'em with, that can be reduced to one word that anyone 100 years ago could understand, or chances are, it's complete bullshit.

What Lori did was reprehensible, and she should be shunned by society wherever she goes -- She deserves an "A" tattoo on her face -- for asshole.

And I'm sorry, if Megan had problems, then it's rather clear that her parents weren't doing their duty, either, watching over her properly -- the internet is a wild and wooly place, not a children's playground. It's the responsibility of the individual, and those responsible for that individual in cases like this -- not that of the other denizens of the internet.

If what Lori did is actionable under normal state law, then that's the law that should be applied.

Using an idiotic abortion of an interpretation of the "terms of service agreement" claim to bypass rational limits of the law is ludicrous.

But this sort of crap isn't new. There was that case of that woman out in Texas who was juuuuust a bit overzealous with her daughter's cheerleading competition, you might recall.

"Anonymity" has a purpose, and it dates back to the time of the Founders. The Federalist papers were published anonymously at the time -- they did not want the weight of their names to sway the opinions of the people reading them. Treatises against this or that tyrant have been published without appellation because such types tend to take a disliking to being criticized. And that's not going to stop -- look at critics of Obama in Missouri, pre-election.

It's highly relevant to whistle-blowers, too. The downside to preventing anonymity is far, far worse than the upside. And the SCotUS has repeatedly reaffirmed this in decision after decision. God forbid that attitude should change.

Posted by: Obloodyhell at December 5, 2008 03:18 PM

> Megan did not knowingly invite interaction with Ms. Drew. That's the point here. You are assuming voluntary consent where none exists.

Really? Someone was forcing her to read and pay attention to whatever Ms. Drew was doing? Sounds like THAT person is the one with the greatest responsibility, then.

Acting on the internet is ALWAYS a voluntary action. If you don't like it, don't go there.

And yes, I believe that if Megan was so irresponsibly out of balance that she could not make a rational choice about that, then the real criminals were the parents who did not supervise her more closely and/or prevent her from having access in the first place.

I concur -- Ms. Drew is inarguably SCUM. But that's not now nor should it ever be a crime in itself.

Posted by: Obloodyhell at December 5, 2008 03:22 PM

<Nit>It is quite legal to yell fire in a crowded theater if there is, in fact, a fire. If there is no fire, it is not "irresponsible", it is fraud. You cannot commit fraud and then claim protection by asserting 1A rights anymore than you could murder someone with a gun and claim protection by asserting 2A rights.</Nit>

That being said, I'd tack on fraud to the list of crimes. What's that libertarian motto? People should be able to do whatever they want absent force or fraud.

Posted by: Yu-Ain Gonnano at December 5, 2008 03:30 PM

Someone was forcing her to read and pay attention to whatever Ms. Drew was doing? Sounds like THAT person is the one with the greatest responsibility, then.

She wasn't forced, but she was tricked.

It is easy for you to say "she didn't have to listen". Real people, though, don't suddenly stop listening to other people they've formed an attachment to. This defies all we know about human behavior.

I think Yu-ain's analogy holds here: it's no different than if she'd hired a young man to intentionally inflict distress on her (which she'd have had to do in real life).

You are ignoring the fact that this woman fraudulently misprepresented who and what she was in order to gain the confidence of a minor and harm her.

Society punishes fraud in all sorts of contexts, especially when it is malicious and demonstrable harm results from it. There are also civil penalties for most of those offenses, but the State recognizes a public policy interest in discouraging that sort of behavior and often brings charges too.

Posted by: Cassandra at December 5, 2008 03:37 PM

The conversations were solicited, but the girl didn't *know* it was her former friend's mother, now did she?

She was an innocent who badly needed some help.

Posted by: Cricket at December 5, 2008 03:41 PM

I'm not sure I agree with you on the cyberstalking thing, OBH.

You are not going to like this, but too bad. Men don't get cyberstalked the way women do so it's easy for you to say, "no harm, no foul - you people who are being bothered should just stay the hell off the Internet". What a load of crap.

But then this is one of the benefits of being a guy - you really haven't the slightest idea what it's like, do you? There are drawbacks to beign both male and female, but most male bloggers I know (John Donovan is one) admit women are treated very differently on the 'Net. IMO, there are two reasons for this:

1. There's a pronounced sexual component to cyberstalking that just plain lends itself more to traditional male sexual roles (i.e., the man as hunter/pursuer) than it does to female sexuality, which tends to be more the pursued/seducer than the aggressor.

2. Women often overreact and reward the stalker with precisely what he/she (and there are female stalkers) desires: attention and a feeling of power over the victim.

But a determined stalker can make your life pretty unpleasant. I've had my site repeatedly hacked. I've had files deleted. I've been harassed to the point where I wondered why I should bother with blogging? The negatives outweighed the positive aspects.

And your answer is: if you don't like having your site repeatedly hacked, your Inbox flooded with filth, finding out that your readers are bing harassed because of you and being threatened, get the hell off the 'Net?

Nice. I don't complain about that nonsense because it doesn't do any good. But I also don't know any male bloggers who have the same problems. And I've been fairly lucky in that respect, as I've escaped or managed to control the worst of it.

Personally, I'd like to know I had some legal recourse if one of these people comes after me. But if you have your way, I won't - I have no rights.

Posted by: Cassandra at December 5, 2008 03:48 PM

unlike a bullet or a knife, we can erect defenses against them using no more than our minds.

That's not totally true. Meaning, if you believe that you will be rendered non-functional by a bullet or a knife then this expectation will make your body react as if it had gotten wounded when it is still pretty functional. They call this psychosomatic, I believe, or how hypochondriacs can actually make themselves sick because they believe totally in their sickness.

But then this is one of the benefits of being a guy - you really haven't the slightest idea what it's like, do you? There are drawbacks to beign both male and female, but most male bloggers I know (John Donovan is one) admit women are treated very differently on the 'Net. IMO, there are two reasons for this:

That's true, but it also applies to men who are vulnerable as well. Take Corporal Matt Sanchez as one example. It would have been worse had he been a woman, but that didn't prevent the campaign of harassment from being initiated.

I've found a couple of really interesting and fun stalkers that came over to my blog at blogspot and then had some of them migrate to wordpress.com. They were one of the regular troll stalkers at Neo-Neocon's blog, insulting her, harassing her commenters, and what not.

What I noticed right off was that when I took off the gloves, sucked them into an ambush at wordpress (where I could edit their comments and not just approve/spam comments like at blogspot), and starting editing their comments to say whatever I wanted, setting them up for falls by laying down deception traps, and numerous other things... they started to go away. And my fun ended, sad to say.

That's an interesting difference between men and women that I have noticed, Cass. There are far more men like me than there are women like me. There are far more people who want to engage the enemy and annihilate them, soul, body, and mind, in the male population than there is in the female population. The level of aggression is just not the same. The level of cruelty, again, not the same. The level of joy found in annihilating a concrete enemy, also not the same for men as opposed to women. Women have to have an emotional connection, like envy or something, to enjoy taking down others a notch. I just need a target that I believe deserves it. Or they just need to annoy me enough.

It is true and I can empathize somewhat with women being attacked, because I understand the psychology of it and I also have felt the drain on one's mental energies. I've told Bookworm this many times: it is easier to be the one choosing the time and place to attack than it is to be the one on the defensive, forced to be eternally vigilant against attacks on all sectors and fronts. It is easier mentally and psychologically.

The internet, however, is like the real world (without police, laws, social inhibitions, or cultural inhibitions). You either learn to deal with such people or you need to go retreat.

Natalie Holloway is only one example out of many that have been confronted by the real world and been demonstrated to have been unprepared. Both the good, the bad, and the neutral can all fall prey to this.

Personally, I'd like to know I had some legal recourse if one of these people comes after me.

I've looked at some uses of these cyberstalking laws when the FBI did Q-ship runs to grab sexual predators. Without these laws, the FBI or out law enforcement branches wouldn't put resources into such things because they know they wouldn't get a conviction. They want to protect minors from sexual predators on internet sites and chatrooms that lure them into a real world "meeting", but they are cops and cops need Laws. They just can't wave a wand and get rid of criminals they don't like, at least not normally.

These laws provide police the "tool" to do their job. Either we give them the tools to let them do their jobs or we get rid of the police and give their mission to the average citizens. The latter is not going to happen any time soon, even though it is my preferred state for human beings.

The Patriot Act gave law enforcement the tools they needed. That became extraordinarily important in stopping future terrorist attacks. And prevention, in my view, is always better than the police being 3 steps behind the criminals and having to clean up the bodies left by those criminals. One of those bodies may be mine, you know.

Posted by: Ymarsakar at December 5, 2008 05:05 PM

I'm curious....if we *run* with Yu-Ain's analogy: Say that Drew had gotten a young boy to befriend and then break up with Megan with the end result being the same, what, exactly would have been done prosecutorially?

Posted by: DL Sly at December 5, 2008 05:06 PM

There's a big difference between simply breaking up with someone and harassing a person you know to be mentally/emotionally impaired and then telling them everyone hated them and world would be a better place if they were dead.

First of all, not the same situation. But secondly, I don't know what would happen. It would depend on applicable laws.

Posted by: Cassandra at December 5, 2008 05:12 PM

There's always the civil suit if laws don't suit.

Does that rhyme?

Posted by: Ymarsakar at December 5, 2008 05:37 PM

If I interpret OBH's view on "cyberstalking", it's not that OBH doesn't view it as a crime. OBH just believes that the regular stalking laws make cyberstalking a crime already so there's no need to make it illegaler.

IOW, sending 30 emails a day saying "I hope you get raped" is no different than if they stood outside your house and yelled "I hope you get raped" at you 30 times a day.

That it was done over a computer doesn't make it better or worse. Regardless of the use of a computer, it all happens "In Real Life".

Posted by: Yu-Ain Gonnano at December 5, 2008 05:39 PM

DL,
To my mind, what should happen is that the boy would be charged (as a juvenile) with harrasment (or intentional infliction of emotional distress) and Ms. Drew with conspiracy to commit same.

Again, to my way of thinking since "the boy" and Ms. Drew are the same person, then Ms. Drew get's charged (as an adult) with harrasment (or intention infliction of emotional distress) along with fraud (you hire someone for a crime it's conspiracy when you misrepresent yourself for a crime it's fraud).

Posted by: Yu-Ain Gonnano at December 5, 2008 05:45 PM

OBH just believes that the regular stalking laws make cyberstalking a crime already so there's no need to make it illegaler.

Given how courts and lawyers work, that's not exactly defensible. I mean, we are talking about the real world here and real lawyers. Sometimes without special laws, you may as well not prosecute in the first place; it would save people a lot of time and money.

Posted by: Ymarsakar at December 5, 2008 05:46 PM

Exactly.

In court, people often get off on technicalities. When a law isn't narrowly tailored to allow police to go after criminals for a *specific* offense committed in a specific way and prosecutors to prosecute and WIN cases, they don't bother because they can arrest all they want and the cases will just get thrown out of court.

Cops don't like wasting their time filling out mounds of reports for no reason when they could be out on the streets doing their jobs and court time comes out of THEIR free time - usually sleep time. Prosecutors don't like wasting taxpayer money on no-win cases.

Posted by: Cassandra at December 5, 2008 05:50 PM

Yes, there is that breaking up/harrassing a mentally ill person difference.

But the first question I have then is, do all relationships now have to be subject to laws designed for the protection of mentally ill persons? Because that is the end result of what would happen with such laws.

Lori Drew did something revolting, but not everything revolting is illegal.

Megan herself was not supposed to be on MySpace at all, but was defying her parents' orders. It is very nearly impossible to keep a teenager off the computer if they want to use it - there are too many opportunities outside the home and you can't put the kid in a cell 23 hours a day. Although I'm no slouch at "blaming" parents, I'm not sure I could say that this is all due to the parents' lack of attention.

Like I said, I can see that Lori Drew should have a legal penalty that requires her to remain distant from minors. But adding more laws to make government MORE invasive in an area of life that is really a choice not a requirement (you don't have to use the computer, nor do you really have any "right" to use the internet) is not going to help the vast majority of people in the long run.

Let's take the way rape accusations are treated now as an example. There is no person I've ever talked to who doesn't think rape is vile and disgusting and needs to be punished by the harshest sentence we can think of. I, for one,would be in favor of castration in some instances.

However, as strict as laws, codes, and enforcements for rape prevention have become, what has really happened is that the presumption of innocence for men has become void. Men accused of rape, even if found "not guilty" (never innocent, right?) have their lives ruined. People believe the worst about them - and in the military the mere accusation can get you booted from a career (if not outright, then through not getting promoted).

Some deranged women have started to use the rape laws and procedures to take revenge on men they felt wronged by or to garner attention for themselves (Duke LaCrosse, anyone?).

I believe that the same thing will happen if special laws are enacted for cyber-bullying, specifically for cases like Lori Drew.

Posted by: airforcewife at December 5, 2008 05:54 PM

There's a big difference between simply breaking up with someone and harassing a person you know to be mentally/emotionally impaired and then telling them everyone hated them and world would be a better place if they were dead.

But not if your purpose for breaking up was to engage in harassing a person you know to be mentally/emotionally impaired and then telling them everyone hated them and world would be a better place if they were dead.

Posted by: Yu-Ain Gonnano at December 5, 2008 05:54 PM

I believe that the same thing will happen if special laws are enacted for cyber-bullying, specifically for cases like Lori Drew.

Given that the rape law situation has only been recent but the law itself has been on the books for awhile, the problem isn't the law. It is social expectations, risks, and rewards.

Every civilization that enacts laws and raises the rule of law will have the same thing happen to them as happened before: decadence, decay, corruption, lack of vigilance, etc.

That, however, is no reason not to do so. It only means that you will cross the bridge when you come to it.

Neo described it as a pendulum from which people may swing one way and then later on, another way, on either extremes. Rape laws favored men before and now they favor women, with the middle point only a slice dot in comparison. What this means is that you need to keep the pendulum swinging and not let it sit in one place for too long because people don't want historic cycles to repeat in the future. It will repeat and it will happen, there is no use worrying about it now. What people should focus on is the problem at hand. Not the problem that may exist in the future.

So long as the American system is stable and balanced and largely uncorrupted, the pendulum will keep on swinging. If it breaks, however, bad things will occur.

Posted by: Ymarsakar at December 5, 2008 07:23 PM

If we accept the fact that laws should be conformed to and subject to local population concerns (rather than a one law rule for every human on the planet) then we must also accept that laws are malleable and can be changed to fit the local situation. Since local situations can be different, different laws will result. If men are being favored and this presents a legal inequality, then laws making up the difference would be needed. If women are being favored and the law has now rendered men legally unequal, then change the law to correct the balance.

Posted by: Ymarsakar at December 5, 2008 07:26 PM

Seems to me that technicalities come from laws being too narrowly tailored, not from them being too broad.

For instance, if I have a law against murder with a gun, one against murder with a knife and one for murder with a hammer, I can simply point to those laws and make the case that my client should be acquitted because there is no law against murdering someone with a piano wire.

It seems the technicality here is that the lawyers claim "Well, since a computer was used, all those other laws don't apply. I mean, there's no law specifically banning the use of computers to harass someone so my client should be let off.

Posted by: Yu-Ain Gonnano at December 5, 2008 07:51 PM

1. Actually Mike, creating an account using a fake name violates MySpace rules, so that's a violation of the Terms of Service right there. That's an integral part of MySpace's conditions for using their site, so if you use it in violation of the terms, it's hard to see how you can claim you are "authorized" to be there, doing what you are doing.

You aren't.

Whether this is criminally actionable under this statute? Another question. But it's not as big a stretch as you're making out.

***************

You're right, Yu-Ain.

I didn't really put that all that well, did I? But I don't agree with your 'narrowly tailored' argument in whole.

The technicality here (it seems to me) is that the law says "unauthorized access of a protected computer" but declines to spell out exactly what that constitutes.

When statutes are too vague, often it becomes difficult if not impossible to prosecute (IOW, a defense is raised by the vagueness of the statute - defense counsel can claim "this law was never meant to apply to what my client is being charged with".)

As in this case.

Posted by: Cassandra at December 5, 2008 08:05 PM

Seems to me that technicalities come from laws being too narrowly tailored, not from them being too broad.

When the subject is the internet, a new invention, I believe you will find the problems are from both. Too broad in the sense that the broadness doesn't cover internet details and can be ruled that the police "mishandled" evidence or certain procedures. Too narrowly tailored because previous laws were dealing with stalking physically, and not stalking being able to access these new tech.

Posted by: Ymarsakar at December 5, 2008 10:22 PM

It would have to be both narrowly tailored and ambiguous for the police to make a mistake on it. The more narrow it is, the less ambiguous it usually gets, and thus the less opportunity for lawyers, judges, or police to create a mis trial.

A technicality would more likely occur if a law specifies a long list of criteria and standards, thus being narrowly tailored, but would also produce ambiguity and conflict.

New laws dealing with specific details would be narrowly tailored to fit a specific type of incident, rather than a long list of criteria and standards designed for other situations that police are now trying to adapt to new problems.

Posted by: Ymarsakar at December 5, 2008 10:26 PM

No, she registered the username herself.

That's a bit like saying if I make up a fake name and SSN, and get a loan under it, that's not fraud because I'm the one who got the loan....

Posted by: Foxfier at December 6, 2008 02:35 AM

It comes down to intent.

There's nothing wrong with getting a userID for normal 'net use. If you get one for nefarious purposes -- even for spamming -- and use it for such, it's a whole different ball of wax.

Posted by: BillT at December 6, 2008 06:17 AM

Another thing here is "don't tell people outside the family about the particular vulnerabilities of your family members".

Posted by: Ymarsakar at December 6, 2008 09:39 AM

The technicality here (it seems to me) is that the law says "unauthorized access of a protected computer" but declines to spell out exactly what that constitutes.

Well, to my mind, the unauthorized access issue seems to me to be missing the point. To go back to my previous example, it seems to be worrying about the murder weapon and not the murder itself (if you can't tell, I'm generally opposed to laws making it a greater offense to use a gun in a murder than a knife: the person isn't twice as dead because a gun was used).

Posted by: Yu-Ain Gonnano at December 6, 2008 12:02 PM

Background Link

More on women as targets.

Posted by: Ymarsakar at December 7, 2008 01:16 AM

Some deranged women have started to use the rape laws and procedures to take revenge on men they felt wronged by or to garner attention for themselves (Duke LaCrosse, anyone?).

I believe that the same thing will happen if special laws are enacted for cyber-bullying, specifically for cases like Lori Drew.

My tiny school district in PA would be one of the first to jump on this new band wagon. Already, printouts of pages from MySpace are arriving daily to our guidance counselor with parents and students demanding that something be done about the bullying.

Our practice has been to apply the same penalty in the handbook for "real world" behavior to the cyber behavior IF the behavior was done on school time/property. If it was done at home and no school computers were involved, we take a less litigious route to deal with the problem.

When we have found that students have gotten on and posted the comments while they were at school, we have revoked their internet rights for getting around our firewall as per our rules. MySpace, FaceBook, and other sites like that are blocked; students use a proxy server which is clearly prohibited in our handbook rules. In one case, we did give a student a suspension because a threat was made on MySpace during school hours from one of our computers. The guidance counselor usually just pulls the offending and offended parties in to talk to them if the postings occurred outside of school. He also makes the faculty aware of the issue so that we can keep an eye on things.

However, I can easily see these students and their parents, many of whom are living high school all over again vicariously, taking it up a notch if it were easy to accuse someone of a crime based solely on the written posts. That would lead to the kind of "guilty-even-when-proven-innocent" scenario that airforcewife envisions. We're perilously close to that now, with Zero Tolerance policies leading to kindergarteners getting slapped with sexual harrassment labels for hugging or kissing other students.

Posted by: UinenMaia at December 7, 2008 09:29 PM

The guidance counselor usually just pulls the offending and offended parties in to talk to them if the postings occurred outside of school. He also makes the faculty aware of the issue so that we can keep an eye on things.

If I had done something like that when I was a kid, I would have had to learn to write with a pencil held between my teeth, because my father would have broken my fingers with a ball peen hammer.

Posted by: BillT at December 8, 2008 05:39 AM

it's hard to see how you can claim you are "authorized" to be there, doing what you are doing.

Authorization has a VERY specific meaning when it comes to computer security. If I (as a sysadmin) set you up with an account for your use on the server, you are an authorized user. If someone hacks into your account, or uses your credentials to log into the server, they are an unauthorized user.

If you use your credentials and do something prohibited by our terms of service, you don't become an unauthorized user magically, you're still authorized (until I pull your credentials), you're just violating the TOS. They're two very different situations.

That's a bit like saying if I make up a fake name and SSN, and get a loan under it, that's not fraud because I'm the one who got the loan....
I didn't say it wasn't fraud. I said it didn't make her unauthorized. They provided her with login credentials. She did not hack into someone else's account, or use someone else's credentials. MySpace made her a set of credentials based upon the false information she provided. She defrauded them, but she used the credentials (i.e. the authorization) they provided. Thus, she was an authorized user.

Again, this sounds like technicalities, but that's the very specific meaning of "authorized". Go after her for fraud if you care to try. But unauthorized access is a false accusation.

And one final note, if anyone here has ever filled out a web form without using their actual full name (when requested) and their actual email address, you're just as guilty of fraud as this woman was. And I doubt there's anyone who has NEVER used an alias or a fake email in order to sign up for something. Spam avoidance alone means most folks do this as a routine exercise.

Posted by: MikeD at December 8, 2008 12:08 PM

As much as I'd like to see this woman punished, it would seem the penalty for violating Myspace's TOS is forfeiture of your account. That's it.

I don't think this woman ought to be prosecuted for a TOS violation if the specific law against her activity is not already on the books (separate from the TOS).

Posted by: Tony at December 8, 2008 04:48 PM

Hello! I found a social action band you might be interested in called 'Truth On Earth' --

www.truthonearthband.com
www.myspace.com/truthonearthband

they have a song about cyberbullying and have a rock sound of the early '70's. this is the only song of its type that tells the story about cyberbullying and presents a solution. They are awesome.

download some of their music on iTunes - a whopping 70% of their profits go to charties and organizations

supporting the subjects they sing about.
dont forget to add them on facebook and myspace!
Email them at their contact page, they like to link up with anyone who wants to promote their cause
- Beckie

Posted by: Beckie at December 8, 2008 05:59 PM

Oh, way cool, Cass!

The Castle only gets real estate spam -- *you* get the social action stuff!

You are awesommmmmmmmme!

Posted by: BillT at December 8, 2008 06:39 PM

It's just a short jump from here to social justice...

Posted by: No justice, no peace... at December 8, 2008 06:47 PM

> But then this is one of the benefits of being a guy - you really haven't the slightest idea what it's like, do you?

Uh, yeah, Cass, 'cause women are known as bastions of stability and honesty... right? They would NEVER "cyberstalk" a man. Or another wom...

:oP

You know better. It's not a gender thing. Don't try and paint it as one. I don't argue against physical "stalking" laws, though I suspect that often they are probably dealt with too extremely one way or another (both too lenient and too stringent), depending on venue and individuals involved.

As far as the case in subject, from everything I've heard, it sounds as though the parents have an easy civil action that should ruin that bitch... There is no reason to make it into a criminal action, and I don't believe, from what I've heard, that it warrants it. That opens yet another can of worms for bureacrats to use against the individual at whim. I'm not a fan of giving more power to bureaucrats, and never will be.

Posted by: Obloodyhell at December 8, 2008 11:41 PM

> It's just a short jump from here to social justice...

Unfortunately, there's that precipice right next to social justice on the other side...

Posted by: Obloodyhell at December 8, 2008 11:42 PM

Post a comment

To reduce comment spam, comments on older posts are put into moderation 5 days after the last activity. Comments with more than one link also go into moderation. If you don't see your comment after posting it, try refreshing the screen. If you still don't see it, your comment is probably in the moderation queue.




Remember Me?

(you may use HTML tags for style)