When last we left the Lori Drew prosecution, Judge George Wu had laid some issues on the table and Orin Kerr had joined the defense team.  The questions raised by Judge Wu suggested that he had some serious misgivings over the government’s use of the Computer Fraud and Abuse Act. 

In response to Judge Wu’s request for supplemental briefs, Team Drew submitted its brief, contending:

The Ninth Circuit has explained the scope of unauthorized access statutes in Theofel v. Farey Jones, 359 F.3d 1066 (9th Cir. 2004). Theofel analogized unauthorized access statutes to traditional trespass statutes. According to Judge Kozinski, unauthorized access statutes protect the privacy of owners of computerized information just like trespass statutes protect the privacy of physical space.

What exactly Judge Kozinski was driving at was whether the “essential character” of the intrusion went to the harm sought to be avoided or was just a collateral matter.  His explanation, to be blunt, was so obtuse as to compel him to explain himself over and over, ultimately stating:

These are fine and sometimes incoherent distinctions. But the theory is that some invited mistakes go to the essential nature of the invasion while others are merely collateral. Classification depends on the extent to which the intrusion trenches on the specific interests that the tort of trespass seeks to protect.

For those of you who, like me, are still struggling to understand Judge Kozinski’s point, this example was helpful:

In other words, it must be a substantial mistake concerning the nature of the invasion or the extent of the harm. Unlike the phony meter reader, the restaurant critic who poses as an ordinary customer is not liable for trespass, nor, unlike the wired cop, is the invitee who conceals only an intent to repeat what he hears. These results hold even if admission would have been refused had all the facts been known.

This helps, somewhat, to clarify that to fall within the strictures of criminal liability, the violation of the TOS must be one that goes to the harm the law seeks to stop.  The point in this case, of course, is that Lori Drew’s false persona did no harm whatsoever to MySpace’s servers, and hence was collateral and fell outside the purview of the statute.

Last Thursday, Judge Wu had the government’s response in hand, and while setting the case down for trial, reserved decision.  But what’s extremely curious is that the questions Judge Wu posed were less a matter for the defense to argue than the government, to whom they were really directed.  Judge Wu challenged the government’s use of this statute, which is the reason why this case matters to the rest of us, as the mechanism to get Lori Drew for her disgraceful role in the suicide of Megan Meier.

To put it mildly, the government’s response missed the mark by about a thousand miles.