The news broke late yesterday in one of the saddest affairs stemming from the internet, the Megan Meier suicide brought about by Lori Drew, the mother of one of Megan’s classmates, who pretended to be a teenage girl who befriended, and then turned abusive, using Myspace.  The idea of an adult driving a 13 year old to suicide is heart breaking. 

Situations like this are precisely the types of cases that give birth to bad law.  We are so angry, so disgusted by Lori Drew’s conduct that we turn a blind eye to the mechanics of prosecuting her because we really want to see her punished for what she did.  Anger overcomes reason, a very dangerous proposition.

Orin at Volokh has already dissected the indictment against Lori Drew, arising under 18 U.S.C. 1030, the Computer Fraud and Abuse Act (CFAA).  Dan Solove at Co-Op has already dissected Orin’s analysis.  Between the two of them, they’ve got the professorial approach covered.

Orin succinctly lays out the government’s theory:

To understand this case, you need to understand the government’s theory. The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government’s theory in this case is that Drew criminally trespassed onto MySpace’s server by using MySpace in a way that violated MySpace’s Terms of Service (TOS).

  Here’s the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn’t comply with these terms, the theory goes, so she was criminally trespassing onto MySpace’s computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).

In essence, the government is using the CFAA to turn a breach of the Myspace Terms of Service (you know, that little box you have to click what says “I agree” that neither you nor anyone else has ever read) into the foundation for a crime.

The ramifications of this theory are mind-boggling.  Contemplate what it means as you cruise around the internet, visiting websites about which you know little to nothing where you click the little box, and consider that your failure to be scrupulously honest in every way would subject you to prosecution.  This is pretext raised to its extreme.

Sure, it’s not likely that our fine government agents will be breaking down your door because you gave a false name when entering Madame Zuwongas’ House of Omniscience dot com.  But if it just so happens that they want to get you anyway, now they have a weapon available to go after every human being who’s ever typed the letter “w” three times in a row.  Violating a website’s “TOS” is carte blanche to an imaginative prosecutor.  We are all felons if this flies.

Another aspect of this indictment that shocks the normal conscience is that the computer that the government claims was accessed “without authorization” was located in California, while Drew and Megan Meier sat at their computers in Missouri.  Want to guess where Drew was indicted?

This is a potential nightmare.  Despite no hard contact with a state a thousand miles away, a defendant can be dragged essentially anywhere to face prosecution.  Away from family, witnesses, and (most importantly) an attorney.  If the idea of the Central District of California isn’t bad enough, consider the potential for Bangalore in our flat world.  They might not have the same interest in due process that we have here either.

Some responses to Orin’s analysis urged that the federal judge who lands this case will grant a motion to dismiss.  The problem is that there is no such animal in federal practice.  Once a federal grand jury indicts a ham sandwich (H/T Sol Wachler), it’s supposed to be a done deal until the jury says “not guilty” or the government attorney drops to his knees. 

While the view of this indictment is universally negative, despite the similarly universal disgust toward Lori Drew’s conduct, it’s going to take a District Court judge with brass balls intestinal fortitude and an expansive view of his inherent powers to toss this indictment.

As bad as the outcome of Lori Drew’s bizarre conduct toward Megan Meier is, this approach is absolutely horrific.  It opens doors that will most assuredly wreak havoc with fundamental principles of criminal law in the future and will create such broad exposure to abuse that it needs to be slammed shut immediately.  For everyone’s sake, let’s hope that this one ends quickly.