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Why the Lori Drew Decision Was a Bad One

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Update: Few online events have ended as horrifically as the Lori Drew case. Befriended by a boy on MySpace who later began bullying her, a teenager named Megan Meier hung herself, and her online friend later turned out to be the mother of a school classmate, who created the persona specifically to torment the young girl. Lori Drew was found not guilty of conspiracy on Tuesday, but guilty of a lesser misdemeanor charge as a result of setting up the fake persona, which the court decided was a case of “unauthorized access” to the social networking site (under the 1986 Computer Fraud and Abuse Act), because it was in breach of MySpace’s terms of service.

lori-drew-indicted It’s easy to sympathize with the urge to punish Lori Drew (Megan’s mother has said she wants Drew to get the maximum penalty). After all, her actions helped lead to the death of a young woman whose life was full of promise and potential, and that is something almost anyone would find unforgivably repugnant. But finding her guilty of a federal offense because she created a fake MySpace account leaves the entire online world on a very slippery legal slope. Yes, doing so is technically a breach of the terms of service for sites like MySpace and Facebook, but those rules (which few people read anyway) are routinely overlooked. There are hundreds, possibly even thousands, of phony accounts on both networks — people who have created personas based on countries, religious figures, even inanimate objects.

Are all those people now guilty of a federal offense? If the Drew ruling stands, then legally they will be, as the New York Times points out. In effect, they will be seen by the courts as criminal hackers. No doubt supporters of the decision will argue that such a case is only likely to emerge if the fake account is used in the commission of a crime, such as theft or murder — at which point it could provide an easy way of nabbing a wrong-doer, in the same way that tax evasion managed to hook Chicago crime boss Al Capone. But how do we know that it would only be used in such cases? We don’t. It could just as easily be used to prosecute users who created fake accounts for some other purpose, such as poking fun at a prominent public figure, or to protect their identity in some way.

That’s getting awfully close to impinging on freedom of speech, and yet it would be more than possible if the Drew case stands. Anyone who altered their name, their age, or their gender for virtually any purpose — benign as well as harmful — would be liable to federal prosecution. And is any of that going to make social networks safer for people like Megan Meier? Not really. What happened to her was definitely a tragedy, but it was not a crime. The Drew case should be overturned.

Update: It’s obvious from the number of comments here — and the passionate feelings expressed in many of them — that my post has struck a nerve with a lot of people. Some believe that finding Lori Drew guilty of virtually any crime is worth it, because of the heinous nature of her actions, but I think laws should be used when they are justified by the facts, not just because we are desperate to find a way of punishing someone. And the fact is that the “unauthorized access” law was designed to apply to criminal hackers, not people who create fake personas on social-networking sites — regardless of what that persona allegedly made someone do. If we are going to prosecute everyone who doesn’t abide by the terms of service for a website, then the courts are going to be filled to the rafters.

I think @Jeema put it well in a comment that said: “Anyone could now be prosecuted for violating a terms of service agreement if this precedent stands, regardless of whether or not they ever intended to cause harm or not. If we want to make a law against cyber-bullying, fine, but we should not abuse existing laws and throw away freedom of speech in the name of mob justice.” The reality is that the charges against Lori Drew were designed to take what she did and twist it until it fit into a specific law, so that she could be punished for something — anything — as a result of her behaviour, as noted by Diogo. That’s not justice, it’s revenge.

A number of commenters have said that they don’t think this case has anything to do with freedom of speech, since companies such as MySpace are allowed to do whatever they like. In fact this isn’t the case, as others have pointed out. It may not fit most of our definitions of speech, but I think it could quite easily be argued that creating a persona of your choosing for an online social network — provided you aren’t trying to hijack the identity of a real person — should fall under the protection of the First Amendment. Online researcher danah boyd has some thoughts on the decision here.

322 Responses to “Why the Lori Drew Decision Was a Bad One”

  1. Judy Lopez

    In my opinion this case was not pursued as aggressively as it should have been. This woman is guilty of abuse, stalking, and malicious attack. To the point of 2nd degree murder. She is also guilty of trying to live her own daughter’s life vicariously. She should be committed to an institution. Her daughter will need life long counseling no doubt – how would you like to be raised and mentored by someone of this nature??? And the mother of the victim was no help either. To learn of what some children have to endure in life is sometimes just so disturbing. Many are resilient beyond belief. Others are lead to the point of no return. This woman is despicable, and I am disgusted by her, and our society. All you have to do is turn on the TV and see the current theme in life that is labeled ‘entertainment’ is abuse and criticizing of others: ‘what not to wear, how not to decorate, hell’s kitchen” and on and on. We are advertising being rude , mean and hurtful as entertainment. Next we have the gentleman who committed suicide online while others egged him on. We have a host of people who have no idea of the power of this medium, nor, how real-life interacts with on-line life. This is an American tragedy.

  2. This is Darwinian survival of the fittest in action. The winners made it. The losers died. Lori Drew and her daughter are obviously superior specimens of humanity… I think Lori Drew and her daughter are total foxes… very sexy… They carry 3.. or 400 pounds of lard very well. They should go on Oprah so that the same mob of New Yor-KAN Americans who trampled the WalMart worker can laugh and cram Twinkies down their gullets and sympathize with poor Lori’s struggles, watching it all on the wide-screen TVs they killed trampled someone to death for…

    This country is doomed.

  3. Clearly the woman is a jerk, but murderer? Come on, kids send these messages to each other every day and they don’t all commit suicide. The young lady was unbalanced and didn’t seem to have any parental oversight in her life. I fake personal information on the internet all the time, like in this email, to keep my personal information away from marketers and crimminals and you should too.

  4. “Actions that are intended to cause harm to others are not protected by freedom of anything.”

    That’s not the point. The point is she was prosecuted for “computer fraud” for breaking an arbitrary terms of service agreement written up by a private party. Anyone could now be prosecuted for violating a terms of service agreement if this precedent stands, regardless of whether or not they ever intended to cause harm or not.

    If we want to make a law against cyber-bullying, fine, but we should not abuse existing laws and throw away freedom of speech in the name of mob justice.

  5. The death of the young girl was indeed a tragedy. Who can fault her mother for seeking justice? I cannot imagine how I would feel if Megan Meier were my child. However, Megan’s mother, her legal team, and the media have all chosen to make this case about Internet bullying. The Internet is not the issue here. Regardless of the medium used, Lori Drew did a horrible thing. If she had sent letters via the USPS, called her via a cell phone, or talked to her face-to-face, the outcome would have been the same.

    Unfortunately, this is one of those lose-lose situations. Megan Meier’s family must deal with their loss. Lori Drew must deal with her conscience.

  6. “doing so is technically a breach of the terms of service for sites like MySpace and Facebook, but those rules (which few people read anyway) are routinely overlooked”…

    You want to overlook the law, because few people “read” these pages?

    Few people may walk the street where a mugging takes place, is that a reason not to enforce the law?

    You obviously have missed the main point here

    There are others out there on pages like myspace, who create fictitious accounts, with bad intents.

    If you want your freedom of speech protected, then you should be willing to stand up and speak AS YOURSELF

  7. I do agree that “freedom of speech” is limited to speech that causes no harm, under the logical “yelling fire in a crowded theater” rule of thumb. Those of you who yell about “freedom of speech” would yell “slander” (or “libel” depending on the medium) if someone spread lies about you, or urged people to injur you.

    We have the right to speak our opinions, without fear of government prosecution. That was the first addition made to the Constitution, and still the most important. But we do not have the right to torment.

  8. The “court” did not “decide” it was a case of unauthorized access. Please get the facts straight before you cast an opinion. The United States Attorney’s office made the decision to prosecute and brought Ms. Drew before a federal grand jury which found, based on facts presented by the U.S. Attorney only, that Ms. Drew *may* have committed the crime of unauthorized access. The U.S. Attorney then brought the charges and the case went to trial. A judge presided over the trial, making rulings on issues of law only, and a jury heard the evidence and decided on guilt. While I may agree with your premise, you need to get the facts straight because if anything is going to be done it is going to be done at the executive branch or the legislative branch, not the judicial. It is the president who appoints the U.S. Attorney in the various districts around the country and it was the U.S. Attorney in L.A. who decided to go ahead with this.

    Another point, there is no freedom of speech in a private forum. You can stand on a street corner and say anything you like as long as it does not incite a riot. If you go into the store on that corner to purchase a drink to whet your throat, and say the same thing, the store owner can kick you out and tell you to never come back and you cannot do anything about it. This case has nothing at all to do with freedom of speech.

    The Terms of Service or Terms of Use agreement is just that, a contract between you and the internet website. The internet is still relatively new in terms of regulation, with people still not in agreement on what or even if it should be regulated. People want something done about spam, about internet bullying, and about internet con artists, so at this point governments are still struggling to get it right. As with most laws in the United States, this one was made with good intentions. If you disagree with the result and want it changed you need to write your congressman, not your local judge.

    And there is no question that Lori Drew is a sick, sick human being. She brought about this young lady’s death, bragged about it, and went to her funeral. In the best of worlds the law is changed and Lori Drew rots in hell.

  9. This was a poorly investigated and even more poorly prosecuted case. In PA there are laws regarding harassment and stalking via computer, text messages, etc. I am sure that there are comparable laws which could have been applied in this jurisdiction. That being said, there must have been a lot more going on in this poor girl’s life that caused her to take her own life by hanging herself. Parents cannot allow children to converse online unmonitored.

  10. As a former journalist, I can’t even begin to fathom how this situation has anything to do with free speech.

    Ignorance of the law does not exempt one from it’s penalties, and those TOS are not written simply to keep a bunch of technical writers employed.

    Lori Drew either chose to not read the TOS or read them and violated them. Neither one exempts her from not following them.

    And as stated above, the First Amendment does not protect those who intend to cause harm.

  11. I personally think she got off light – she egged and bullied this girl and manipulated everything about being a teenage girl she could and got the girl to commit suicide. She got off light because she has no business doing what she did and she should have been drawn and quartered or hung like they do to people in other countries that do this kind of insane stuff. Parents are responsible and kids are not… this is a pure example of the opposite being done – this poor girl got lured into a potential emotional relationship and was spit out by a deceptive mother and she will ROT IN HELL FOREVER and I pray that young women is beaming with joy and an afterlife of purity… God Bless the just people that convicted this women and let the lawyers and pundits that defend this mother burn in hell forever.

  12. Ididn't Readyourrules

    So your point is that if a law is routinely ignored by you and your friends then it shouldn’t be enforced? Woohoo! No more pesky traffic lights!

    You should probably re-read the “fine print” of the bill of rights since, FYI, you don’t actually have any right to fraudulently set up a false persona for the purpose of tormenting someone.

  13. Sorry, I cannot agree with this article. The premise here is that because many ignore the laws that the laws should not be enforced. The message sent with this rulling is clear, If you use myspace for fraudelent activities you can be held accountable. Based on the articles premise nobody should be held accountable for Drunk Driving because many are not caught.

  14. The article proposed that there should be no prosecution for fake MySpace/Facebook/etc pages, given the large number of harmless faked pages. Agreed. The decision was wrong on two counts: There should be no prosecution for fake pages, and there should have been far greater punishment for this woman’s crime. The “downgrading” of her charges put the charges not just in a lesser category, but into the wrong catergory entirely, one that should not exist. This woman should be charged at least with manslaughter, and any “downsizing” of her charges should still be within the list of killing someone.

  15. sorry don’t get your point. buying a gun isn’t against the law. intending to kill someone with it is. the mother used cyberspace as a psychological weapon with full intent to harm. This is not legally comparable to Judy Love in my mailbox trying to sell me fast acting viagra.

  16. Legally, no, she should not be prosecuted. Morally, yes, the woman deserves more than what she got. However, trying to take her down via the legal system would breach the foundations of law in this country. So yes, she’s a despicable person, but no, she should not have been convicted of the “breaching of service terms” as she was. She’s just a soul-less person. (read:b****) I agree with the author that this ruling is not good for us on the whole.

  17. Joshua Davis

    Anybody that would commit suicide because some online person was already emotionally unstable, if it hadn’t of been Lori it would been an F that made her kill herself. This lady should have been charged with harming a minor or something, because that was what was the real crime, not some vague computer hacking charge.

  18. Edwin Scott

    “Yes, doing so is technically a breach of the terms of service for sites like MySpace and Facebook, but those rules (which few people read anyway) are routinely overlooked.”

    This is a crock of you know what. If I get busted for drunk driving, do I get to say “Yes, technically it is illegal but those rules are routinely overlooked”? No, I don’t. Saying “Nobody reads that anyway” is not a defense. If I sign a contract, I am held responsible for having read it. Especially if I am a 40 something year old who should know better.

    This isn’t a free speech case at all, not in the least, and to imply that it is shows that you don’t know what free speech is. Free speech isn’t a license to say anything you want, no matter how stupid, and no matter how much it hurts someone else. The First Amendment doesn’t protect you if you yell fire in a movie theater and someone gets hurt in the panic. If one says something intentionally to inflict harm on another person that is not protected speech.

  19. I disagree with you — the owner of a website can decide whether they want to provide their users anonymity or not. It should not be up to the whims of the users whether they should be allowed to lie.

    Likely this law will only be used to prosecute criminals that committed other crimes. But at some point we all must realize anonymity & the internet as a place to do business and interact with others were going to come to a head.

    I agree with the law and the decision, Lori Drew knew she was doing something wrong by mis-representing herself as a teen boy.

  20. Mike Harrington

    You seem to have overlooked a few things. Malice, and forethought come to mind. This woman planned this out and went through with it. Regarding your claim that others are using bogus names to set up accounts; once again your argument is weak. If 1000 people see money laying in the street and they pick it up is the last person less guilty than the first? According to your reasoning the last people should not be guilty because all the others did it first.
    This woman planned this and knew what she was doing. To me she is guilty of murder and should go to jail. Unfortunately she will get a lesser charge, but she needs to go to jail.

  21. so we continue to let people off the hook and let them get away with murder ( so to speak) , that is why the justice system is so mested up, along with peoples thinking that its ” not a crime ” to push someone to end their life. Easy to blow off a little thing like this… freedome of speach? Till it happens to you. Then trust me you would think differant. And yes all those people are guilty its called THE LAW, and so we continue to just let things slide and the next thing you know murder is no big deal.

  22. There are a certain percentage of computer users who, using fake accounts, backdoors, operating system vulnerabilities, and the like, to explore how security systems work in network based operating systems. This percentage of people I am referring to do not damage the remote computer systems, steal files, or lock their rightful users out– they simply explore the design and operation of these advanced computer networks. Similar to the argument in this article, their right to an education is impinged if they are brought to trial under the same Computer Fraud and Abuse act– simply for exploring. The Drew case, and the entire Computer Fraud and Abuse act that can lead to the federal prosecution of curious students of information technology should be overturned.

    I mean, come on– just because MySpace and the like don’t want us to do certain things on their computer doesn’t mean they have the right to enforce what we do on their computers. It’s OUR lives!

  23. Actions that are intended to cause harm to others are not protected by freedom of anything.

    The intent was to hurt someone. Telling a teenage girl she should never have been born is about as vicious a hurt you can imagine to them.

    You sound like a sleazy lawyer defending an admitted child murderer.