Is it a Federal Crime to Violate the Service Terms of a Web Site?

Is it a federal crime to violate the service terms of a Web site? Some Federal prosecutors in Los Angeles think so, and they are waiting to find out from U.S. District Judge George Wu, who presided over the case against Lori Drew, the Missouri mom convicted of three misdemeanor counts for unauthorized access to MySpace’s computer system. Drew used MySpace to create a fake account for a fake 16-year-old boy named “Josh” in order to romance her daughter Sarah’s then 13-year-old classmate to find out if she was spreading rumors about Sarah. The plan was to then dump the girl, Megan Meier, over the internet, a girl known to be under treatment for depression. Meier hanged herself in her bedroom closet shortly after a final message from “Josh” saying, “The world would be better off without you.”

Drew’s attorney, Dean Steward, has argued that the verdict should be thrown out on the basis that “prosecutors failed to show a crime was committed because his client violated MySpace service terms.”

According to a recent AP story, Steward wrote in his dismissal motion,

“Is it a federal crime to violate a Web site terms of service? The correct answer should be a resounding no.”

This is despite the fact that according to a December story on wired.com’s blog Threat Level, jurors in the original case wanted to find Drew guilty of all four felony charges against her, but settled on the lesser charges for some very compelling reasons (which you can read more about in the Threat Level story). Drew was charged with three felony counts of obtaining illegal access to MySpace’s computers and one count of conspiracy. Charges were levied under the Federal Computer Fraud and Abuse Act, which in the past has been used in hacking and trademark theft cases, when Drew and her 18-year-old employee, Ashley Grills created the fake account.

The jury forewoman told Threat Level there just wasn’t enough evidence:

“Trust me, I was so for this woman going away for 20 years,” Valentina Kunasz told Threat Level. “However, on the harsher felony charge, it was very hard to find her guilty on the specific [evidence] given to us.”

One piece of critical evidence the jury was not allowed to consider was that of the third and final email send from the fictitious 16-year-old boy.

Kunasz said jurors were given printouts of three conversations between Megan and “Josh” as evidence of Drew’s three alleged felony violations. But Kunasz said the final message that Megan received wasn’t among the printouts, and the three that jurors did receive weren’t malicious.

“They were ‘oh you’re so hot,’ ‘I love you’ and who-loves-who messages,” she said. “It wasn’t something that to me personally — and I think the rest of the jury felt the same way — was malicious in mind.”

Kunasz said jurors were not allowed to take into account the last message sent to Megan, because the message was not sent through MySpace. Ashley Grills testified that she sent the message through American Online’s instant messaging service.

To find Drew guilty of a felony or misdemeanor, the correspondence had to involve interstate communication, but prosecutors never introduced evidence discussing whether the final AOL message involved interstate communication. The AOL message also would not have been covered by MySpace’s terms of service, which were at the core of the case against Drew, hence the message was not included in the juror’s evidence packet. Testimony did establish, however, that the three messages jurors
saw that were sent through MySpace were interstate communications because they traveled from the Drew computer in Missouri through MySpace’s servers in Los Angeles County.

“The last message was a huge piece of evidence,” Kunasz said, “but we had no way of knowing whether it was interstate or not. I honestly think that if they gave us a little more solid, hatred-type e-mails or MySpace messages it would have been a lot easier [to convict her].”

Eight of the jurors also wanted to convict Drew of the felony conspiracy charge, but the decision was deadlocked because:

“Four jurors felt that because Megan and Sarah Drew had a opened a MySpace account months earlier to meet boys, that Megan was emotionally functional and should have known what she was getting herself into by communicating with “Josh.” She should have been prepared to be rejected by “Josh.”

“This was a very serious subject for every single one of us. We wanted to make sure that we came to the right decision and that there was no question on anything,” said Forewoman Kunasz.”

The misdemeanor convictions were clearly meant to punish Drew in some way for the death of this young girl. The prosecutors simply didn’t present enough evidence to make the felony charges stick.  But Threat Level reported Thursday Drew’s attorney sees the verdict as one that raises the question:

“. . . whether it mean(t) the jurors found Drew guilty of cyberbullying “or was it no finding at all,”

A 45-minute hearing Thursday to determine whether the verdict against Drew should be thrown out ended with no decision by Judge Wu. A sentencing trail has already been set for April 30 and Wu has indicated he will issue a written ruling before then.

It’s evident this is new ground for cyberlaw. Or is it?  Are we letting the “forum” on which these crimes were committed dictate whether a crime was committed at all?  If Drew had put a real 16-year-old boy up to this hoax knowing what they knew about Meier’s state of mental health would it be so easy to dismiss?

And what about that third message that was sent via IM rather than MySpace?  Did prosecutors mess up by filing charges of violating a web site’s user agreement rather than a broader charge?  Is there a broader charge they could have used?

This case is complex, and I plead ignorance in my knowledge of the law, but ought Drew be guilty of something? I encourage you to read the articles cited here and give us your thoughts. Should this conviction have ever been based on violation of a web site user agreement? Under the circumstances, should the charges stick?

As Forewan Kunasz told Threat Level when asked the same question, “When it’s gross circumstances of someone killing themselves…. “