Senators: Don't Make A Federal Case Over Fake Profiles

by Wendy Davis, Sep 16, 2011, 7:00 PM

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Several years ago, many people blamed Lori Drew, an adult in Missouri, for the suicide of 13-year-old Megan Meier.

The teen killed herself after receiving online messages from someone she thought was a teen boy named Josh, but was actually a fictional character created by other girls. Initially flirtatious, the messages eventually turned mean; the final one said the world would be a better place without Megan.

Drew's involvement, however, was tangential at best. She didn't herself send the messages or even create the profile, which first appeared on MySpace. (Eventually "Josh" contacted Megan from other accounts.) Instead, Drew allegedly helped hatch the plan to create Josh to communicate with Megan -- though at the time she likely didn't predict that the scheme would spin out of control.

Nonetheless, after Megan's death, Drew was an easy target for people looking to cast blame. After all, she was an adult who clearly showed bad judgment in encouraging the fake profile.

Federal prosecutors went so far as to file a case against Drew for allegedly violating the federal Computer Fraud and Abuse Act, an anti-hacking statute that provides for the prosecution of people who exceed authorized access to computer systems. Their theory was that Drew exceeded authorized access to MySpace's servers by violating the social networking company's terms of service with the fake profile.

Drew was convicted by a jury, but the case was later thrown out by U.S. District Court Judge George Wu, who ruled that lying on a social networking site wasn't computer fraud, even if it might have violated the site's terms of service.

A host of law professors and digital rights groups had urged Wu to toss the case, arguing that it violated due process to convict people of a crime for violating sites' terms of service -- especially when most people never even read them.

Remarkably, however, Drew isn't the only one to face computer fraud charges for allegedly violating a company's terms of service. Orin Kerr, the lawyer who represented Drew, highlights other cases in an op-ed that appeared this week.

This week two lawmakers, Sens. Al Franken (D-Minn) and Chuck Grassley (R-Iowa) have introduced an amendment to the Computer Fraud and Abuse Act that would make it clear that signing up for a site with a fake name or otherwise violating a private company's terms of service isn't a crime.

Such a law is long overdue.

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