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.
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.