Hard case, Bad law and MySpace
(posted by Angelica)
It’s hard not to want something bad to happen to Lori Drew, the “MySpace Mom” who participated in a cruel hoax that ultimately ended in the suicide of 13-year-old Megan Meiers in 2006.
However, it appears in federal prosecutor’s zeal to make sure Drew is punished, they are willing to advance an absurd and dangerous legal argument — they’re going to go after Drew for violating MySpace’s term of service:
…after investigating the incident, local prosecutors concluded last December that they could find no law under which to charge Drew.
That’s when federal prosecutors began working to build a case — a difficult task, given that there is no federal law against cyberbullying. On Thursday, the U.S. Attorney’s Office in Los Angeles unveiled its solution by charging Drew with “unauthorized access” to MySpace’s computers, for allegedly violating the site’s terms of service.
MySpace’s user agreement requires registrants, among other things, to provide factual information about themselves and to refrain from soliciting personal information from minors or using information obtained from MySpace services to harass or harm other people. By allegedly violating that click-to-agree contract, Drew committed the same crime as any hacker.
That sets a potentially troubling precedent, given that terms-of-service agreements sometimes contain onerous provisions, and are rarely read by users.
So would I be willing to see Drew go unpunished by justice? Yes. The whole point of laws is that they are inflexible. They are rules that apply to all. To set a bad precedent just to punish one individual is to show wanton disrespect for law as opposed to retribution. Those prosecutors might as well drive up to Drew’s house and kneecap her. At least then their desire for retribution will not have unintended consequences on the rest of us.
Put it this way…do you want to be put into the same basket as Lori Drew because you didn’t want to give your real birthdate or zipcode or anything else that violates the volumous terms of agreement to an internet service that you just “clicked to agree”?
(Via the excellent Machinist blog on Salon)
Tags: privacy, technology
May 19th, 2008 at 10:48 am
I’m not sure I’m convinced by this. Onerous and ridiculous terms and conditions are becoming more and more common, but to suggest that the solution for this is just not to enforce them seems odd to me. Boingboing has been highlighting ridiculous EULAs for some time now (http://www.boingboing.net/2007/01/25/reasonableagreemento.html).
An adult who voluntarily enters into a contract with the provider of a service and then breaches the terms of that contract (no matter how ridiculous - she did agree to them) must at least accept the possibility that the service will be withdrawn.
The worrying thing is not that the T&Cs are being taken literally - more of this should happen, so that we, as consumers, begin to take notice of these things, realise where they infringe our statutory rights, and become less likely to accept services from companies that wish to impose ridiculous T&Cs.
The worrying aspect is the assertion that, having violated the T&Cs of a service agreement, if you continue to use that service you are essentially gaining access to someone’s servers without permission. That you have ‘hacked’ their computers because you no longer comply with the arbitrary terms they imposed on your contract to begin with.
It sounds like the charge would be unlikely to stick through a jury trial. Essentially, the prosecutors are arguing that missing a payment on a car (and thus breaching the terms on which you were allowed to drive it away on credit) is indistinguishable in the eyes of the law from having stolen it in the first place. Indeed, the implication is that you could be criminally prosecuted for the theft of any goods which you have under a EULA which you might breach.
While this is innately ridiculous, it might highlight the problem of unenforceable and probably unlawful EULAs and T&Cs and the ‘agreements’ we enter into without thinking about it on the Internet.
(Actually, looking back, I’m not sure I disagree with you at all. I certainly don’t believe that federal prosecutors should be trying to find a way to police breaches in T&Cs, no matter if it does raise awareness. Maybe I’ll think first and type later next time.
Maybe.)
May 19th, 2008 at 10:51 am
That is a really dangerous precedent. Worse, because in a sense it allows private companies to define criminal law. To be sure, she could be liable for civil trespass, and should Myspace be sued over this for negligence or something on that order, they would be more than justified in impleading this woman on those grounds. MySpace could also sue her for her trespass on their own, though I’m not sure whether they could plead sufficient damages to make it worth their while. Assuming California recognizes it as a tort (and I think they do), she is definitely going to get sued for intentional infliction of emotional distress, and will get hit with a huge verdict on that front since her actions are the very definition of IIED.
It surprises me that they’ve been unable to find an actual crime to charge her with, though. Since she was pretending to be someone else, fraud comes to mind pretty quickly, though I confess I don’t know the interpretation the courts have given to the word “defraud” in the federal wire fraud statute. It would almost certainly require a bit of a unique theory of that word since she wasn’t seeking pecuniary gain, but not all gain need be pecuniary. I’m also not sure that you would have enough of an interstate commerce hook to constitute federal wire fraud even if you could win on that definition of “defraud.” This would all be a big stretch, and if they pulled it off, it would be a really dangerous precedent, but I’m surprised prosecutors haven’t tried to make this charge, which carries a much bigger sentence than cyberhacking could.
May 19th, 2008 at 11:41 am
This is one of those cases that should (and, indeed, may) never even get to a jury. The defense attorney should file a motion arguing that as a matter of law no crime has been committed here, even if all facts as the prosecution alleges were stipulated to. Did the civil wrong of breach of contract occur? Probably. Do the 13-year-old girl’s parents have actionable civil claims against Ms. Drew? Likely so.
But the criminal prosecution should end with a motion to dismiss.
May 19th, 2008 at 12:41 pm
I think a case against the MySpace terms of service could be made based on the fact that so many people break the terms of service and no action is taken against them. I’m not a lawyer, but possibly a case could be made using the old concept of “notrious non-enforcement”. It’s the concept that invalidates old laws. In my state, Virginia, it’s illegal for a man to go out in public without wearing a hat - the law is centuries old and no longer enforced. A police officer can’t arrest me for my lack of a hat - the law has been “notoriously” non-enforced for awhile.
Likewise, tens of thousands of people break the MySpace terms of service everyday. Isn’t it a bit selective to pick out one or two people and then suddenly prosecute them?
May 19th, 2008 at 3:08 pm
Similar meaningless terms of service are posted at Blogger and Yahoogroups. What they really mean, translated from legalese into English, is:
“In accordance with our no tolerance policy, we reserve the right to shut you down for any reason or no reason, at will, and by our own unilateral judgment, if we determine that you have embarrassed us.”
It’s about like the fine print in that insurance policy, in the Monty Python skit: “No claim made by you will be paid.”
May 19th, 2008 at 3:51 pm
One minor detail: This is not judicial overreach, it is PROSECUTORIAL overreach. It’s a fine distinction, but I think an important one. We’ve been living with the right-wing meme of “judicial activism” for at least thirty years now, and it’s resulted in a lot of bad law; I don’t want to encourage any more of that.
May 19th, 2008 at 6:34 pm
jackson, what you are describing is the doctrine of waiver. If a party to a contract for years openly sits on its rights never enforcing them, it is likely the right will be deemed waived. However, whether that would be so in this case is far too complicated (at least for me) to speculate upon. (And moreover, MySpace has only limited damages in this case, unless the dead girl’s parents sue them and MySpace seek to indemnify itself via Ms. Drew.) The girl’s parents could also have causes of action for “intentional infliction of emotional distress,” as well as “wrongful death.” Purely via the civil route, Ms. Drew could find herself bankrupted.
mjfgates
Agreed. This is a case in which the judge ought to as a matter of law, tell the prosecutor to stuff it and never even let the case reach a jury.
May 19th, 2008 at 7:14 pm
yep, good call mjfgates and Mona, I was lazy in tagging and will change the tags immediately.
May 20th, 2008 at 9:36 am
Well, to defend Angelica’s first category a little bit:
If this case doesn’t get dismissed out of hand by the presiding court, it will be judicial overreach. It is a long-standing precept of common law that mere breach of contract, by itself, cannot establish the intent to defraud - you have to present other evidence capable of establishing that, *at the time of contracting*, the party had no intention of fulfilling their obligations. I can’t see how the US attorney can possibly meet that burden in this case.
BUT, this is just a single case that is symptomatic of a larger movement of prosecutors and their hip-pocket judges to erase this rule from the book, because it gets in the way of their politcking (especially for that important AARP vote). I know from personal experience that more than a few local contractors have been criminally charged for failing to meet the exacting standards of 70 year-old fuss budgets who claim that the contractor promised the sun and the moon for the $400.00 they gave him as a downpayment. Perhaps the most egregious case involved a roofer who suffered a heart attack after taking a down-payment and had to declare bankruptcy after the combination of being out of work and hospital bills hit him. He was convicted of defrauding the homeowner.
So, while there is certainly some validity to Mona’s argument that the prosecution should be thrown out, I wouldn’t bet the house on it. Far too many judges, especially federal judges, see themselves as an extension of the prosecutor’s office (where they often worked before becoming a judge): “we’re here to clean up the streets!” And if that holds true, Angelica’s original classification will be prescient.
May 20th, 2008 at 6:13 pm
Quasibill,
It’s obvious you know a bit about law and how the legal racket works. I think the legal system is second only to foreign policy in terms of the dysfunctional nature of the establishment’s institutions. What, in your view, would be the most optimal system for enacting or maintaining law?
May 21st, 2008 at 12:02 pm
Keith,
My knowledge is merely the byproduct of close proximity coupled with a relatively newfound ethical worldview. I therefore have a fair amount of anecdote that reinforces my ethical opinions, but I’ll admit that I am probably now prone to some confirmation bias.
that said, I’ve started coming around to a feeling that “the law” is merely a way of un-mooring the coercive aspect of justice from its moral groundings. I’m pretty new to this idea, and haven’t kicked all the tires yet, but I think I’d prefer a system where the lawyers are left with arguing the morality of their clients positions, as opposed to abstract laws. Juries would be empowered to ask their own questions, and would decide the issue based upon their understanding of the morality of the actions taken.
In the end, I don’t think it is actually that far different from what actually happens now(if you don’t think jurors make their decisions based upon their impression of who’s “a bad guy”, you haven’t dealt much with juries). The big difference would come in the fact the jurors would have to take personal responsibility for their vote - there would be no excuse of “well, I don’t agree with the law, but the law’s the law!”
And I recognize the possibilities for abuse, especially with respect to “despised” minorities, such as homosexuals, but in a de-centralized world, I’d think that problem would be far less prevalent than the abuses that occur under our current system. Such minorities would quickly migrate to areas where they aren’t despised (possibly becoming majorities); also keep in mind the widespread commitment to the liberal principle of equal protection. It would be a moral argument that could be used in defense of such minorities. And, in the end, the personal moral accountability for jury votes would make the whole process much more thoughtful (wouldn’t you be if you could possibly be boycotted for your vote?)
Again, I’ve only been kicking this around for a short time, so I’m not entirely comfortable with it yet, but I haven’t been dissuaded from it yet.
May 21st, 2008 at 4:44 pm
Your views are fairly similar to mine, particularly on the use of decentralization for the protection of unpopular minorities and the elimination of the ability of judges, jurors, lawyers, et.al. to hide behind “The Law” irrespective of its contents or consequences. How do you see such a system being implemented.