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.
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):
- Lori Drew Opinion:
- Lori Drew Opinion Handed Down -- Judge Grants Motion To Dismiss on Vagueness Grounds:
I'm not saying my analysis is that profound, but it's what jumped out at me.
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.
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.
Texas Lawyer wrote at 8.29.2009 11:32pm:Then maybe he wasn't talking about VC comment threads. That's a relief.
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.
Thank you for putting in the pro bono effort on behalf of the community. And congratulations on your success!
Well, I'm glad we got that cleared up.
http://wp.me/pmF0P-6V
That was:
Ahh, there it is! Third one's a charm!
["The media
isn'tare't particularly interested in the underlying reasoning."]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?
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.
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!
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?
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.
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.
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.
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.
No.
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:
Wouldn't that make you guilty of a misdemeanor by the government's logic?
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).
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.
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...
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.
It was a good decision. I'm just surprised it took the Judge so long to finally make the decision.
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.
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.
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.
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.
What a good description of this heinous Drew person.
Fraud is much more complicated than sending a few messages on Myspace. Your analogy is good, but not great.
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.
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.
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.
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.
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.
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.
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.
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
No, the legal conclusion is that no harassment occurred.
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.
Yes, but we don't have to revel in it.
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.
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.
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.
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.
Thanks for correcting my sloppy legal thinking. I should have known that.
I think we're pretty much in agreement. We can argue forever about where each boundary element lies.
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?
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.
If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.
Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.