They couldn't convict her of being a terrible person, so they had to nail her for impersonating one.
That was the sorry end of a landmark cyberbullying trial heard in the United States. Lori Drew, the woman whose phony MySpace account may have driven a neighbour's teenaged daughter to suicide, was convicted in a Los Angeles court this week – but not for cyberbullying. There's no law against that. Instead, Drew was convicted of “unauthorized access” – a crime usually reserved for hackers. And that spells trouble for everyone.
The Drew story is as sad as it is sensational. A resident of a quiet Missouri suburb who ran a coupon-book business from her house, Drew set out to harass a girl named Megan Meier, a former friend of her daughter's. With the help of her daughter and a teenaged employee, she used a fake MySpace page to create the persona of an imaginary 16-year-old heartthrob named “Josh Evans.” The fictitious “Josh” flirted with Meier and ultimately spurned her. The Meier family lived nearby, and Megan had a known history of depression. After receiving one particularly harsh insult from “Josh,” she hanged herself.
Lori Drew walks to federal court Tuesday, Nov. 18, 2008, in Los Angeles. (Ric Francis/Associated Press)
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The local authorities investigated and found that, as reprehensible as the situation might have been, no laws had been broken. In fact, the story went unaired for a year, until a columnist wrote it up in the local newspaper, igniting global outrage in short order. It was the kind of parable that could stir up fear and loathing from all corners, especially given a villain as unsympathetic as Lori Drew, a reality-TV-tawdry character who hasn't demonstrated much in the way of remorse.
In the end, a U.S. Attorney in Los Angeles picked up the case. (He claimed he had jurisdiction because that's where MySpace runs their servers; no doubt he also knew it would be an attention-getter.) To get around the fact that Drew couldn't be prosecuted for cyberbullying, he came up with an alternative plan of attack. He took the unusual step of charging Drew with the computer-fraud charge of “accessing a computer without authorization via interstate commerce.” What it amounted to was breaching the MySpace terms of service.
That's right: It wasn't the laws of the United States of America that she violated, so much as that fine print that comes up whenever you install a new piece of software or sign up to a website – the kind that most everybody grumbles at and clicks right past.
In the case of MySpace, the fine print had a clause prohibiting users from signing up under a false identity. According to the prosecution's logic, Lori Drew had flaunted those instructions when “Josh Evans” was created, and was therefore making unauthorized use of MySpace – which made her, in a manner of speaking, a hacker. And that's what she was convicted of.
Lori Drew played the villain to the end. The New York Times reported that she “left the courtroom quickly, her face red and twisted with rage.” Yet as profoundly dislikeable as she might be, the peculiar nature of these charges has sparked a backlash online. Observers are concerned about the way in which Drew was brought to justice – after all, it had little to do with cyberbullying, or bullying at all. More than one observer has likened it to convicting Al Capone for tax evasion. But in this case, the precedent could have consequences for everyone else.
For one thing, there's the issue of turning anyone who contravenes the fine print into de facto hackers. You don't have to sign up with a fake name to fall on the wrong side of those terms and conditions. For instance, most every site on the Internet has rules about what you can and can't post to it, be it regarding the decency of the photos you upload or the offensiveness of what you write. Or it can be something more obscure: Earlier this year, Robert Scoble, a noted blogger, had his Facebook account suspended when he exported his very large “friends” list to another website.
Sometimes these rules are enforced and sometimes they aren't. Typically, the worst penalty you'd face for breaking a website's terms of service is to have your account shut down. But if the Drew ruling is allowed to stand, then breaking terms of service could turn these offsides into criminal offences, making rule-breakers into hackers in the eyes of U.S. law.
This doesn't seem to be a good idea. Nor would it be to anyone's advantage were we to see a legal or commercial crackdown on online anonymity, which is one of the Internet's oldest traditions. For every horror-show case like Lori Drew's, there are hundreds of thousands of people who assume aliases for reasons that range from privacy to escape to satire.
The good news is that this particular verdict might be overturned on appeal, sparing Americans (and, inevitably, Canadians) another layer of legal intrigue to their day-to-day activities. It's natural to want to see justice done in a case like this, but turning the Web into a minefield strewn with lawyers will only ensure that everybody loses.
