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Lori Drew Opinion Handed Down -- Judge Grants Motion To Dismiss on Vagueness Grounds:
Readers who are following the Lori Drew case know that back on July 2, Judge Wu "tentatively" ruled that he was going to overturn the jury verdict. At the time, however, Judge Wu stressed that his decision was not final, and that he would eventually issue an opinion with his final ruling.

  Late yesterday, Judge Wu finally handed down his opinion. You can read it here: United States v. Lori Drew, Final Opinion. Judge Wu did in fact grant the defense motion to dismiss, ending the prosecution against Drew and overturning her misdemeanor convictions. (To my surprise, it seems that Friday's final ruling in the case has been entirely ignored by the press; I couldn't find any reference to it on the web.)

  The reasoning of the opinion is that whatever unauthorized access means, it cannot mean mere violation of Terms of Service without more. Such a reading of the statute would render the statute unconstitutionally void for vagueness because it would give the government almost unlimited power to prosecute any Internet user and wouldn't give citizens sufficient notice as to what of their Internet conduct was criminal. I'll probably have some more comments on the opinion soon, but for now I just wanted to post it so others could see it.

  As you might guess, given all the pro bono efforts I put into this case, I am very pleased by the result. This was an extremely important test case for the scope of the computer crime statutes, with tremendously high stakes for the civil liberties of every Internet user. I feel fortunate to have been able to argue the motion in January, and to have done what I could to bring about the correct result.

  Finally, I'm working on a draft article on the use of vagueness and overbreadth to challenge overly broad interpretations of 18 U.S.C. 1030, along the lines of the arguments we made (and Judge Wu accepted) in the Drew case. I'll post the draft when I have something ready enough to share.

Related Posts (on one page):

  1. Lori Drew Opinion:
  2. Lori Drew Opinion Handed Down -- Judge Grants Motion To Dismiss on Vagueness Grounds:
Mike& (mail):
Congrats, Orin.
8.29.2009 11:19pm
Texas Lawyer:
I note the judge uses the term "cyberbulling" twice (p. 2 n.2). Is that a typo for cyberbullying, or is that the preferred way to spell it.

I'm not saying my analysis is that profound, but it's what jumped out at me.
8.29.2009 11:32pm
2cents (mail):
Orin,

Well done. I have followed your blogs on this case and think you have done a great service by keeping the government from stepping over the line.
8.29.2009 11:39pm
A Law Dawg:
Orin, I want to make clear that the next sentence is not sarcastic or hyperbolic:

On behalf of all Americans, thank you. As you have stated in myriad ways, this case could have created a nightmare. Thank you for your role in averting it.
8.29.2009 11:39pm
Fub:
I second A Law Dawg's sentiment. Thanks immensely.

Texas Lawyer wrote at 8.29.2009 11:32pm:
I note the judge uses the term "cyberbulling" twice (p. 2 n.2). Is that a typo for cyberbullying, or is that the preferred way to spell it.
Then maybe he wasn't talking about VC comment threads. That's a relief.
8.29.2009 11:44pm
Soronel Haetir (mail):
As for the lack of news coverage I don't find it at all surprising. This just makes the earlier ruling official. The media isn't particularly interested in the underlying reasoning. This opinion would only have made the news if it had gone the other way after the judge had announced his decision. Now it is simply months old news.
8.29.2009 11:45pm
David Welker (www):
Good job Orin.
8.29.2009 11:53pm
krs:
Congratulations. Any word on whether the government intends to appeal?
8.29.2009 11:56pm
OrinKerr:
Thanks, all, for the kind words. I really appreciate them.

Krs, my understanding is that for the government to appeal, they would need to obtain the personal approval of the Solicitor General, currently Elena Kagan. Estimation of the chances that the SG would approve such an appeal are left as an exercise for the reader.
8.30.2009 12:01am
NatSecLaw Guy:
Congrats! If it comes, I hope you plan on helping on the appeal.
8.30.2009 12:03am
Soronel Haetir (mail):
Why appeal when this case could just be used as the basis for a new federal law? That does in fact seem far more likely.
8.30.2009 12:18am
SecurityGeek:
Thank you Orin for getting this done. This is one of the few decisions about the intersection of the law and the Internet that has been rooted in common sense, and I'm sure you had something to do with that.
8.30.2009 12:20am
Beth Macknik:
The lack of news coverage is normal. Friday afternoon is where news goes to die of obscurity.

Thank you for putting in the pro bono effort on behalf of the community. And congratulations on your success!
8.30.2009 12:28am
Leo Marvin (mail):
Another thank you and congrats.
8.30.2009 1:20am
einhverfr (mail) (www):
Congrats! And on Constitutional grounds too!
8.30.2009 1:44am
The Sitzpinkler:
From footnote 1:

There is some disagreement as to whether the words "Internet" and "website" should be capitalized
and whether the latter should be two words (i.e. "web site") or one. "Internet" is capitalized as that is how
the word appears most often in Supreme Court opinions. See, e.g., Pac. Bell Tel. Co. v. linkline Comms.,
Inc., 555 U.S. ___, 129 S.Ct. 1109, 1115 (2009).

Well, I'm glad we got that cleared up.
8.30.2009 1:48am
Tim Nuccio (mail) (www):
Great work, Professor. I've linked to you and blogged about this, here:

http://wp.me/pmF0P-6V
8.30.2009 4:08am
Tim Nuccio (mail) (www):
Oops...

That was:

8.30.2009 4:09am
Tim Nuccio (mail) (www):
8.30.2009 4:09am
Tim Nuccio (mail) (www):
Link

Ahh, there it is! Third one's a charm!
8.30.2009 4:10am
Curt Fischer:
Congrats to you Professor Kerr. Your work on this was pro bono publico in the truest sense of the words.
8.30.2009 4:45am
eyesay:
Great work, Professor Kerr!

["The media isn't are't particularly interested in the underlying reasoning."]
8.30.2009 5:55am
eyesay:
aren't
8.30.2009 5:57am
Timmo:
In the United States, media is typically a singular noun when used it that sense.
8.30.2009 8:11am
RichC:
A bit off topic, but something I've always wondered...

With respect to Ms. Drew herself, is the result final (i.e. is she irrevocably acquitted of all the charges)? In other words, if the govt appeals and wins, does she go back to being legally convicted of the misdemeanor charges (if so, what about the rule that acquittals, be they by judge or jury, being final?) or does she, personally, remain acquitted but the law survives and can be used to prosecute for such conduct in the future?
8.30.2009 8:55am
Toby:
Thank You!

This was an egregious over-reach, and one that had potential long term coat-tail effects that could only be bad. It was unpopular, as the defendant was such an unsympathetic figure. I am delighted your arguments helped sway the outcome.

I read this post just after reading some local news about a local parasailing accident (Who knew that being 150 feet in the air being towed behind a boat could be dangerous? ). I put it also in the context of the article in the Friday WSJ on why there are no guard-rails everywhere in national parks.

Somehow the impulse to make sure there is a legal remedy for every bad behavior and the impusdle for absolute safety are some fo the more dangerous impulses for our society. Perhaps the absolute liability McDonalds Coffee fits in this same box. There is no legal solution for every misbehanior. The world cannot be made safe. Sometimes peiople cannot be made whole. The impulse to solve these issues, through law and regulation, seems nearly irresistable to our society today. The after-effects of following through on these impulses is always worse than the original problem.
8.30.2009 9:04am
Philistine (mail):

With respect to Ms. Drew herself, is the result final (i.e. is she irrevocably acquitted of all the charges)? In other words, if the govt appeals and wins, does she go back to being legally convicted of the misdemeanor charges (if so, what about the rule that acquittals, be they by judge or jury, being final?) or does she, personally, remain acquitted but the law survives and can be used to prosecute for such conduct in the future?


If the Government appeals and wins, the conviction is reinstated.

The Government is entitled to appeal a decision on a motion to dismiss (or a Rule 29 judgment of acquittal or new trial). However, the Government cannot appeal an actual acquittal--whether by a jury or, if a non-jury, by the Court making a decision as a fact-finder.

In this case, the difference is illustrated by the fact that the jury's acquittal of the felony charge cannot be appealed, while the decision on the motion to dismiss the misdemeanor charges can.

And I echo the congratulations to Orin!
8.30.2009 9:26am
Art Johnson:
The after-effects of following through on these impulses is always worse than the original problem.

Yeah, Lori Drew going to jail is much worse than having her taunt a fragile teenager into suicide.

This is simply another case of lawyers helping evil people avoid punishment for their evil acts. Are Volokh and Kerr now going to dedicate their intellects to freeing Phillip Garrido?
8.30.2009 9:27am
Toby:
Art

The after-effects of prosecutors making up laws to get one bad actor establish precedents way beyond the initial case. Case law that says anything that you do anywhere on the internet can become prosecutable if you do something else that offends society moves us toward a society in which all are lawbreakers, trembling lest someone in auhtority glance in our direction. Our ancesters came to America to escape the Leviathan...with good reason.
8.30.2009 9:50am
arbitraryaardvark (mail) (www):
medium coverage:/.
8.30.2009 10:23am
ReaderY:
Rather than striking down the statute outright, I would have construed it to limit "unauthorized access" to accessing the site in a forbidden manner -- i.e. by stealing a password -- without regard to how one uses the site once one has accessed it. Under such a rule, accessing a publicly available web site could never be unauthorized and would never violate the statute even if one didn't abide by a posted terms of service while visiting. If Congress wished to make specific uses of a site or the posting of specific content on a site a crime even if publicly accessed, it could say so.

It seems to me a court has a duty to find a reasonable narrowing construction for a statute and to uphold it if it can. It doesn't seem to me reasonable to consider only a maximalist definition for certain terms when there are reasonable less maximal definitions available.

I don't think this would be a stretch. The access/use distinction seems the more reasonable construction. The public wouldn't tend to think that using a publicly accessible web site in violation of terms of use is authorized access in part because such an application goes beyond the ordinary meanings of the words. Contract cases giving the terms a different meaning as used in business settings should not have been given the weight they were in this case, because fair public notice requires that criminal law stay closer to ordinary English than the terms of voluntary (and often confidential) contracts between sophisticated business entitities.

Finally, I would have placed more emphasis on the First Amendment aspect of the case rather than relying solely on general vagueness considerations. However, with this said, even in a First Amendment case, the narrower reading was a very reasonable definition and would have avoided First Amendment issues, and the court should have adapeted it rather than giving the statute an unreasonably broad reading and then striking it down.

I'm not suggesting it occurred here, but I'll point out that the practice of giving statutes unreasonably broad readings and then striking them down in toto for vagueness is one way judges can impose policy preferences on statutes they happen not to like without doing so overtly.
8.30.2009 10:27am
krs:
Art, the girl's family can always sue, and if the facts of what Lori Drew did fit the elements of a real crime, the government would be free to charge that and I doubt very many people would complain.

The government hasn't charged Drew with taunting a fragile teenager into suicide. Rather, they've charged her with violating MySpace's terms of service, and we're supposed to trust their discretion that they'll only do that when something bad happens.

I'm no fan of Lori Drew or of lawyers in general, but what her defense team did in this case is definitely for the greater good... in my opinion, at least.
8.30.2009 10:37am
troll_dc2 (mail):
So how should a statute be written that would catch the Lori Drews of the world without going too far? I find it disgusting that she caused a girl to commit suicide by engaging in what, in any other context, would be deemed fraudulent conduct and yet cannot be found to be a criminal.
8.30.2009 10:55am
JohnKT (mail):
Congrats, and my gratitude, Prof Kerr. Also thanks to Judge Wu.

I urge readers to realize that not only TOSs could have been the basis of arbitrary prosecutions, but EULAs too.

Again, this note is no approval of Lori Drew or cyberbullying. This note is relief that over-reaching failed, at least so far.
8.30.2009 11:29am
A Law Dawg:
Perhaps the absolute liability McDonalds Coffee fits in this same box.


No.
8.30.2009 12:21pm
Bruce:
Congrats Orin on the win, which is the right result. I hope the Meiers file a tort suit, if they haven't already.
8.30.2009 12:54pm
einhverfr (mail) (www):
Art:


Yeah, Lori Drew going to jail is much worse than having her taunt a fragile teenager into suicide.

This is simply another case of lawyers helping evil people avoid punishment for their evil acts. Are Volokh and Kerr now going to dedicate their intellects to freeing Phillip Garrido?


But here is why you should care. She was convicted not because she said anything cruel to Megan (she was acquitted of the related charges here) but rather because she violated the terms of service of the web site.

Now, consider the following. Suppose we read your comments as somewhat uncivil as a personal attack on the bloggers at this site. The Comments Policy states:

Comments must be relevant and civil (and, especially, free of name-calling).


Wouldn't that make you guilty of a misdemeanor by the government's logic?
8.30.2009 1:04pm
einhverfr (mail) (www):
troll_dc2:

So how should a statute be written that would catch the Lori Drews of the world without going too far? I find it disgusting that she caused a girl to commit suicide by engaging in what, in any other context, would be deemed fraudulent conduct and yet cannot be found to be a criminal.


I see two issues here. The first is that I am not at all certain this is a case of actual "bullying" in the normal sense. Hence "cyberbullying" laws IMO to catch folks like Drew would have to be unacceptably overbroad. (I think it is reasonable to criminalize harassment after the individual has been asked clearly and unambiguously to stop, for example.)

The second issue is whether some other form of law might allow for one to catch what she was accused of doing. Interestingly, Judge Wu's opinion suggests he might have reached a different decision had Drew been convicted of the felony charges (because mens rea would have been an element which would have undermined vagueness grounds). The fundamental issue is that it isn't clear whether Drew was just strying to get information from Megan or whether she was trying to hurt her and the jury did not convict her beyond a reasonable doubt of the latter (the unauthorized access as part of an IIED scheme).
8.30.2009 1:17pm
Tim Nuccio (mail) (www):

So how should a statute be written that would catch the Lori Drews of the world without going too far? I find it disgusting that she caused a girl to commit suicide by engaging in what, in any other context, would be deemed fraudulent conduct and yet cannot be found to be a criminal.


1. She did not "cause" this girl to commit suicide. She was a disturbed and deranged little girl who should have never been on Myspace.com to begin with.

2. You might find it disgusting that free speech and free expression exists in cyberspace, and I find it repulsive that you don't support these freedoms. With that said, the cost of living in a free society is that I must tolerate your repulsive behavior and you must tolerate mine, even if you do not "accept" it.
8.30.2009 1:54pm
mums (mail):
Congrats Professor
8.30.2009 2:08pm
einhverfr (mail) (www):
Tim:

1. She did not "cause" this girl to commit suicide. She was a disturbed and deranged little girl who should have never been on Myspace.com to begin with.


And, according to the Government's theory, a criminal too, since she was in violation of the terms of service (the ToS stated one had to be at least 14 to use the site). She was thus not authorized to use MySpace...


You might find it disgusting that free speech and free expression exists in cyberspace, and I find it repulsive that you don't support these freedoms. With that said, the cost of living in a free society is that I must tolerate your repulsive behavior and you must tolerate mine, even if you do not "accept" it.


Personally, I think that deliberate misrepresentations of fact calculated to cause emotional distress to someone else might fall outside the First Amendment just as they would if used for financial gain. Judge Wu's ruling seems to suggest that had Lori been convicted of the felony counts, that the mens rea in those counts might have been sufficient to overcome the vagueness grounds. However, this is speculation since Lori was acquitted of such conduct. Nor do I think such an answer would prevent as-applied first-ammendment challenges in cases either.
8.30.2009 2:13pm
David M. Nieporent (www):
1. She did not "cause" this girl to commit suicide. She was a disturbed and deranged little girl who should have never been on Myspace.com to begin with.
Indeed, as the judge points out, under the prosecution's theory of the case, she too was a criminal -- merely by being on Myspace, because she was too young for the TOS.
8.30.2009 2:30pm
Shelley (mail) (www):
Finally, Judge Wu ruled.

It was a good decision. I'm just surprised it took the Judge so long to finally make the decision.
8.30.2009 3:16pm
einhverfr (mail) (www):
ReaderY:

I don't know. After carefully considering a large number of cases, I think "access" has to be defined broadly, but "unauthorized" needs to be defined narrowly.

For example, I think that if someone does something fundamentally harmful in a repeated manner after being told to stop in no uncertain terms, that access may be seen as unauthorized. Otherwise, I think limiting it to code-based constraints raises similar problems to the access control clause of the DMCA-- any codebased constraint no matter how easy to circumvent could end up with criminal sanctions for getting around it.

For example, consider IP blocking like this site supports. Would getting another account on another ISP in order to post from a different IP be criminal? How about taking a trip to the library? How would this be different than ROT-13 applied to a PDF (as in the Sklyrov case)?

At the same time, if someone posts a bunch of spam, and that person is tracked down, and Prof. Kerr tells that person in a certified letter "If you continue to do this, we will refer the matter for prosecution" and that person continues to do so, that seems to my mind like a legitimate use of this law.

In short I would argue that "unauthorized" should be seen as an equivalent to trespassing on physical property. Furthermore, that contracts should have penumbras around them which prohibit criminal sanctions from reasonable violations (BTW, I hold that software licenses should have penumbras around them shielding from copyright infringement claims as well). Thus the force of law should not make every contract violation subject to additional sanctions.

In short, I think this is a reasonable decision.
8.30.2009 4:04pm
whit:

So how should a statute be written that would catch the Lori Drews of the world without going too far? I find it disgusting that she caused a girl to commit suicide by engaging in what, in any other context, would be deemed fraudulent conduct and yet cannot be found to be a criminal.


she did not CAUSE the girl to commit suicide any more than marilyn manson, ozzy osbourne (both of whom have been blamed for past suicides) did.

life is full of examples of people being mean to you, and while i feel bad for the young girl (and her family), finding a CRImE here is a stretch.

the law is a blunt instrument and trying to criminalize every example of "mean" behavior just results in grossly overbroad (and thus prone to abuse) laws.

iow, i take issue with your assumption that laws SHOULD be written to catch the lori drews of this world.
8.30.2009 4:06pm
David Schwartz (mail):
ReaderY: The statute is pretty clear that that isn't what it means. It draws a distinction between unauthorized access and exceeding authorized access. Your construction wouldn't cover, for example, someone authorized to access a computer for auditing purposes who then maliciously deletes data.

However, IMO, I don't think the statute can be saved. *Criminal* actions have to be defined by criminal law and subject to legislative review and clear statements of scope. Any law that makes it criminal to violate what is essentially a contract will fail.
8.30.2009 5:14pm
David Schwartz (mail):
(It draws a distinction and criminalizes both.)
8.30.2009 5:15pm
Bruce:
She did not "cause" this girl to commit suicide. She was a disturbed and deranged little girl who should have never been on Myspace.com to begin with.


Let's not confuse a good result with good facts. Drew's behavior was indefensible. Even if you accept the testimony (as I do) that the worst message was actually sent without her knowledge, she was an active participant in a conspiracy to cruelly deceive a 13-year-old girl. I believe she deserves a fair amount of the opprobrium she's received.
8.30.2009 5:55pm
Kara:

She was a disturbed and deranged little girl who should have never been on Myspace.com to begin with.


What a good description of this heinous Drew person.
8.30.2009 6:59pm
Tim Nuccio (mail) (www):

Personally, I think that deliberate misrepresentations of fact calculated to cause emotional distress to someone else might fall outside the First Amendment just as they would if used for financial gain. Judge Wu's ruling seems to suggest that had Lori been convicted of the felony counts, that the mens rea in those counts might have been sufficient to overcome the vagueness grounds. However, this is speculation since Lori was acquitted of such conduct. Nor do I think such an answer would prevent as-applied first-ammendment challenges in cases either.


Fraud is much more complicated than sending a few messages on Myspace. Your analogy is good, but not great.



Let's not confuse a good result with good facts. Drew's behavior was indefensible. Even if you accept the testimony (as I do) that the worst message was actually sent without her knowledge, she was an active participant in a conspiracy to cruelly deceive a 13-year-old girl. I believe she deserves a fair amount of the opprobrium she's received.


I never said that Drew's conduct was "defensible." That doesn't mean that I'd convict her of a criminal act.

The media and our politicians are active participants of an evil conspiracy to deceive the American people on a daily basis. We call that "freedom of speech," not "crime."

While I'd put the potential tort liability in the hands of a jury (which is a complicated case anyway since IIED is not often accepted as a cause of action by itself), it seems clear to me that this is and ought not be a criminal act.

Considering that what was done to this girl fails to even meet the legal definition of "harassment," I fail to see how anyone could suggest that this woman's acts, no matter how horrible, are criminal.

On and the truth comes out--I love it. 13 isn't even old enough to have a Myspace account. How adorably peachy.
8.30.2009 7:09pm
George Weiss (mail) (www):
funny. judge wu takes forever to rule then issues an opinion that completely ignores the fact that drew never agreed to the terms of service of MS, (someone else did) and thus his analysis that

1) the TOS violation is a breach of contract and that
2) that breach of contract is a violation of the statue criminalizing unauthorized access but that

3) that statute as applied is unconstitutionally vague

is wrong b/c it ignores the facts. she was not convicted of the "conspiracy" charge-so the argument that she helped a co conspirator violate the TOS thus breaking the statute is also out.

same result. but bad decision technically.
8.30.2009 11:12pm
edjay (mail):
What amazes me is that the "intent to harm or cause distress" which is obviously apparent, is completely ignored and the case is then turned into purely an Internet rights issue?

It seems to me that there are two separate cases concerning two very different issues - It has now become legal to taunt and influence someone to death.

I do not disagree with the Rights issue, but I strongly disagree that the more important issue is being ignored.
8.31.2009 4:34am
David Schwartz (mail):
edjay: Using true speech to cause deserved harm or distress is not and should not be criminal. How can you criminalize influencing someone to commit suicide (without lying or harassing them) without destroying some of the most important speech freedoms?

I can warn everyone that you are a liar and a thief, so long as I don't upset you too much in the process? When you start to get really upset, I have to back off? Does that make sense?

Remember, Drew was not even charged with harassment, much less convicted of it.
8.31.2009 5:19am
Leo Marvin (mail):
DS, I assume you meant undeserved.
8.31.2009 5:34am
Ken Arromdee:
Using true speech to cause deserved harm or distress is not and should not be criminal.

The speech in question was not true, since Lori Drew was not really a teenage boy who dumped her because he suddenly hated her, but an adult woman who hated her all along. The entire harassment was done under false pretenses.
8.31.2009 9:46am
Gabriel McCall (mail):
It has now become legal to taunt and influence someone to death.

If someone is so emotionally frail that it is possible to taunt her to death, then she is not competent to communicate with strangers without supervision. I think there's a case to be made that at least some of the liability here falls on the girl's parents.
8.31.2009 10:31am
DennisN (mail):
Ken Arromdee:

The speech in question was not true, since Lori Drew was not really a teenage boy who dumped her because he suddenly hated her, but an adult woman who hated her all along. The entire harassment was done under false pretenses.


Drew was acquitted of harassment. The facts, therefore, indicate that no harassment occurred.

If the victim was driven to suicide because of such a trivial "assault," then she arguably should have been institutionalized. She was clearly a danger to herself, and allowing her access to the Internet, or probably society in general, was irresponsible. If anyone murdered the child, it was her parents.

The World is mean. Live with it, or die with it.
8.31.2009 12:45pm
David Schwartz (mail):
Ken Arromdee: I was responding to the statement that "It has now become legal to taunt and influence someone to death." You can taunt and influence people without ever telling a falsehood. If we are going to ban taunting people in a way that results in them committing suicide, we will chill an awful lot of protected true speech.
8.31.2009 1:25pm
whit:

It seems to me that there are two separate cases concerning two very different issues - It has now become legal to taunt and influence someone to death.



get the facts right. it has not NOW BECOME LEGAL to do this. it NEVER WAS ILLEGAL, specifically , it never was a crime.

if you claim otherwise, please cite a case where somebody was criminally prosecuted for such behavior.

assuming that lori did even "taunt and influence" somebody to death, which is a big stretch in itself, she engaged in mean but not criminal behavior

and trying to mccoy a crime where none exists to punish somebody who is "bad" is always wrong
8.31.2009 1:39pm
Leo Marvin (mail):
DennisN

Drew was acquitted of harassment. The facts, therefore, indicate that no harassment occurred.

No, the legal conclusion is that no harassment occurred.

If the victim was driven to suicide because of such a trivial "assault," then she arguably should have been institutionalized. She was clearly a danger to herself, and allowing her access to the Internet, or probably society in general, was irresponsible. If anyone murdered the child, it was her parents.

The child murdered the child. No one else did. The legal decision was proper, and for reasons far beyond this case, important. That doesn't mean the person who vindictively tried to injure the child deserves moral absolution, or that the girl's parents deserve nauseating insults on top of their tragic injury.

The World is mean. Live with it, or die with it.

Yes, but we don't have to revel in it.
8.31.2009 2:51pm
DennisN (mail):
Leo Marvin:

Drew was acquitted of harassment. The facts, therefore, indicate that no harassment occurred.


No, the legal conclusion is that no harassment occurred.


Did the jury not acquit in the harassment, thereby including a finding of fact? My memory is not clear, there, and anyway I'll defer to your correction.

The child murdered the child. No one else did. The legal decision was proper, and for reasons far beyond this case, important. That doesn't mean the person who vindictively tried to injure the child deserves moral absolution, or that the girl's parents deserve nauseating insults on top of their tragic injury.


I have no argument with that. I consider suicide quite independent of murder. My point was that IF there is an external fault to be found, the parents share mightily in it. Lori Drew deserves moral opprobrium; I think not for causeing death because that could not reasonably be foreseen, but for generally swinish behaviour. We don't really have any way of dealing with that as a society.

we don't have to revel in it.


I don't. It bites me in the arse about as often as it does everybody else. But flailing about because "there oughta be a law" has the potential for greater harm.
8.31.2009 3:15pm
David Schwartz (mail):
DennisN: When the jury enters a finding of 'not guilty' on a charge, that means that the jury agreed that the prosecution did not establish all of the elements of the offense charged beyond a reasonable doubt. No more, no less.

As I recall, Drew was not charged with harassment. (Though, obviously, if the prosecution had felt they had any chance of proving harassment, they undoubtedly would have charged it.)

Let's not confuse legal questions with non-legal questions though. Drew engaged in conduct that is morally reprehensible though not criminal. Some of the things she did could sensibly be criminalized but many of them fall into simply being rude.
8.31.2009 3:26pm
DennisN (mail):
David Schwartz:

Thanks for correcting my sloppy legal thinking. I should have known that.

Drew engaged in conduct that is morally reprehensible though not criminal. Some of the things she did could sensibly be criminalized but many of them fall into simply being rude.


I think we're pretty much in agreement. We can argue forever about where each boundary element lies.
8.31.2009 3:55pm
Student:
"The reasoning of the opinion is that whatever unauthorized access means, it cannot mean mere violation of Terms of Service without more."

Because the opinion emphasized that MySpace's TOS were vague and rarely read, is it possible that courts could reach a different result if the Web site had unambiguous Terms of Service? Is the holding really broad enough to rule out criminal prosecution for all TOS violations?
9.1.2009 2:24am
DennisN (mail):
I think the principle that, "if it didn't say it, it didn't cover it," applies. So, if the opinion didn't specifically rule out more unambiguous Terms of Service, then they're still in for now.
9.1.2009 10:14am
einhverfr (mail) (www):
Student: It does suggest that some terms of service might apply.

It also suggests that if the terms of service outlined WHICH claims might result in prosecution, it might apply too.

It also suggests that vagueness might not have been an issue if the felony counts had resulted in convictions.
9.1.2009 3:47pm

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