As a matter of law, the verdict against Lori Drew in the MySpace suicide case is fairly indefensible. A U.S. attorney in Los Angeles went after a misdeed in Missouri—when state and federal prosecutors there didn't think Drew's actions constituted a crime—with a crazy-broad reading of a statute written to punish computer hacking. Just about every single law professor and editorial writer to weigh in has condemned the prosecutorial overreaching. But the failure to make a valid case against Drew begs a larger question: Is there a better way to go after cyber-bullying? Or is this the kind of troublemaking, however nefarious, the government shouldn't try to punish?
Drew is the mother from hell who famously tried to defend her own teenage daughter against rumor-mongering on the Internet by creating the MySpace persona of fictional 16-year-old Josh Evans, then using that persona to fire off personal e-mail attacks (or sometimes spurring a young woman she worked with to do that). Twenty minutes after "Josh" sent 13-year-old Megan Meier, Drew's daughter's erstwhile friend, the message "the world would be a better place without you," Megan hanged herself in her bedroom.
Someone other than Drew apparently sent that last dreadful e-mail. Even if she had, it seems wrong to say she caused Megan's death. We're talking about an adolescent who must have been vulnerable and volatile and who was taking antidepressants. But the local sheriff's department's dismissal of Drew's MySpace foray as merely "rude" and "immature" doesn't seem proportionate, either. Drew was an adult who secretly entered a teenage world and made it more dangerous. A girl in that world died. The formulation that makes sense to me is that Drew at least contributed to Megan's suicide. So did the abstract verbal brutality of e-mail and the humiliation and shunning made possible by MySpace. But the vacuum cleaner that would cleanse the Web of its pseudonymous nastiness would also suck up a lot of free speech. Freedom often doesn't go with niceness.
The problems with the California case against Drew started with the poor fit between her wrongdoing and the law used to punish her. The federal Computer Fraud and Abuse Act makes it a crime to intentionally access "a computer without authorization." So what does that mean—is it a crime to hack past a password or a firewall? Or merely to violate a terms-of-service contract like the one MySpace users agree to?
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.
Missouri, where Meier lived, has already passed a cyber-bullying law. The Missouri statute extends the state's bar on phone harassment to computers. The problem with the analogy is that the computer context is more dangerous to free speech: On the phone, you talk to one other person. On MySpace or any other Web site, you broadcast to as many people as read you. Other states have passed laws giving schools more authority to address cyber-bullying. That sounds better, but it could get schools too involved in disciplining students for the IMs and posts they write from home.
All of this takes us back to earlier battles over prosecuting hate speech. As Eugene Volokh points out on his ever-vigilant blog, the cyber-bullying bill before Congress is a classic example of a law that's unconstitutional because it's overly broad. The Supreme Court has held that the First Amendment protects "outrageous" speech—from civil as well as criminal liability—even if it "recklessly, knowingly, or purposefully causes 'severe emotional distress,' when it's about a public figure." Volokh adds, "Many, though not all, lower courts have held the same whenever the statement is on a matter of public concern, even about a private figure."
That doesn't mean that a cyber-bullying statute as applied to a Lori Drew-like horror show would be unconstitutional; "Josh's" trashing of Megan was hardly a matter of public concern. But even if a better drafter could come up with a narrower law, since when do we want the government to go after bullies when the only weapon they wield is words? Other countries have experimented with prosecuting hate speech; they don't think their civil traditions are strong enough to withstand, for example, ethnically based calls to violence. But that's not a direction American law has ever taken. And wild and woolly though it may be, the Internet doesn't really call for rethinking our affection for the First Amendment. Cyber-bullying is scary. For some kids, MySpace isn't a safe place. But criminal convictions aren't the best way to clean up the neighborhood.
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