Expert warns of online chill in wake of MySpace conviction

Monday, December 1, 2008

LOS ANGELES — Warning to computer users: You could be facing jail time for creating a fake profile online.

After a Missouri mother was convicted on Nov. 26 of accessing computers without authorization in a landmark cyberbullying trial, legal experts said the outcome could mean anyone who violates a Web site's service terms is subject to prosecution.

“Any time you now go to a Web site and violate the terms of service, you have committed a crime,” said Matt Levine, a New York-based defense attorney and former federal prosecutor. “This is not what Congress had in mind when they created the law.”

Lori Drew, 49, was convicted of misdemeanor computer charges instead of felonies in an Internet hoax played on Megan Meier, her 13-year-old neighbor in the St. Louis suburb of Dardenne Prairie. Megan hanged herself in October 2006.

The federal jury could not reach a verdict on a conspiracy allegation against Drew and rejected three other felony counts of accessing computers without authorization to inflict emotional harm on the girl.

Instead, the panel convicted Drew of three lesser offenses of accessing computers without authorization. Each of those counts is punishable by up to one year in prison and a $100,000 fine. Drew faced up to 20 years in prison if convicted of the four original counts.

U.S. District Judge George Wu declared a mistrial on the conspiracy count. There was no quick decision on retrying the count.

Drew, who now lives in O'Fallon, Mo., did not show any visible emotion when the clerk read the verdicts. Her attorney, Dean Steward, said later that Drew was “puzzled” by the verdict and he had to explain the difference between felonies and misdemeanors to his client, who remained free on bond.

“I don't have any satisfaction in the jury's decision,” Steward said. “I don't think these charges should have ever been brought.”

Tina Meier, mother of the dead girl, said afterward she believed Drew deserved the maximum three years in prison.

“For me it's never been about vengeance,” she said. “This is about justice.”

Meier said in a telephone interview on Nov. 28 that she would ask at sentencing that Drew serve the maximum penalty.

Meier also said she was grateful that federal prosecutors in California filed charges after Missouri officials did not. She said Drew's conviction didn't bring closure for her daughter's death, but she said she took some comfort in her work to protect children against bullying and would continue speaking publicly around the nation.

She said she believed the verdict against Drew would lead to more action to prevent, and prosecute, bullying and harassment.

“We all have to be able to understand if you do something wrong, you have to face the consequences,” Meier said.

Most members of the six-man, six-woman jury left court on Nov. 26 without speaking to reporters. One juror, who would only identify himself by the first name, Marcilo, indicated jurors were not convinced Drew's actions involved the intent alleged by prosecutors.

“Some of the jurors just felt strongly that it wasn't tortuous and everybody needed to stay with their feeling. That was really the balancing point,” he said.

The jury forewoman told NBC's “Today” show, in an interview broadcast this morning, that she didn't believe Drew expected Megan to kill herself.

“I don't think she set out to — in any way, shape or form — have this girl commit suicide. No, I don't,” forewoman Valentina Kunasz said on the NBC morning program. “But I think that in her knowledge of this girl having depression and suicidal tendencies, I think that she made poor judgment.”

Tina Meier, pointed out that Drew is an adult. “She knew what was going on,” Meier said on “Today.” ''She allowed this to continue to happen.”

She said she was disappointed that Drew was not found guilty of additional charges, “but that's something I can't dwell on.”

“I don't know that justice will ever 100 percent be served,” she said. “I can never bring Megan back, but my hope is through all of this … it is about bringing justice.”

The case hinged on an unprecedented — and, some legal experts said, highly questionable — application of computer-fraud law.

Prosecutors said Drew and two others created a fictitious 16-year-old boy on MySpace and sent flirtatious messages from him to teenage neighbor Megan Meier. The “boy” then dumped Megan, saying, “The world would be a better place without you.” Megan promptly hanged herself with a belt in her bedroom closet in October 2006.

Prosecutors said Drew wanted to humiliate Megan for saying mean things about Drew's teenage daughter. They said Drew knew Megan suffered from depression and was emotionally fragile.

“Lori Drew decided to humiliate a child,” U.S. Attorney Thomas O'Brien, chief federal prosecutor in Los Angeles, had told the jury in his closing argument. “The only way she could harm this pretty little girl was with a computer. She chose to use a computer to hurt a little girl, and for four weeks she enjoyed it.”

O'Brien said it was the nation's first cyberbullying trial.

After the verdict, O'Brien said the jury's decision sent a clear message and he was comfortable with it.

“If you have children who are on the Internet and you are not watching what they are doing, you better be,” he said.

But some legal experts have suggested that O'Brien overreached and that a conviction might not stand up on appeal.

“This was a very aggressive, if not misguided theory,” Levine said. “Unfortunately, there's not a law that covers every bad thing in the world. It's a bad idea to use laws that have very different purpose.”

Drew was not directly charged with causing Megan's death. Instead, prosecutors indicted her under the federal Computer Fraud and Abuse Act, which in the past has been used in hacking and trademark theft cases. The case was brought in California where some of MySpace’s servers are based.

Among other things, Drew was charged with conspiring to violate the fine print in MySpace's terms-of-service agreement, which prohibits the use of phony names and harassment of other MySpace members.

“The rules are fairly simple,” federal prosecutor Mark Krause said. “You don't lie. You don't pretend to be someone else. You don't use the site to harass others. They harassed Megan Meier.”

Drew's lawyer, Steward, contended his client had little to do with the content of the messages and was not at home when the final one was sent. Steward also argued that nobody reads the fine print on service agreements.

“How can you violate something when you haven't even read it?” Steward asked. “End of case.”

Prosecutors said Drew, her then-13-year-old daughter Sarah and Drew's 18-year-old business assistant Ashley Grills set up the phony MySpace profile for a boy named “Josh Evans,” posting a photo of a bare-chested boy with tousled brown hair. “Josh” then told Megan she was “sexi” and assured her, “i love you so much.”

Grills allegedly sent the final, insulting message to Megan before she killed herself.

The trial's outcome was a victory for prosecutors despite the lack of a felony conviction because they were able to prove the defendant violated the law, said Nick Akerman, a New York attorney who specializes in cases involving the federal computer-fraud act.

“What you learned is that the Computer Fraud and Abuse Act is an extremely important tool in the federal arsenal against computer crime,” he said.

Missouri authorities said there was no state law under which Drew could be charged. But federal prosecutors in California claimed jurisdiction because MySpace is based in Beverly Hills.

Among the prosecution's witnesses was Megan's mother, Tina, who recounted finding her daughter’s body. Prosecutors also called some of Drew's friends and associates, who painted the defendant as cold and indifferent about the prank and the suicide.

Sarah Drew testified she never saw her mother use the MySpace account. But Grills, testifying under immunity from prosecution, said she saw Drew type at least one message under the name Josh Evans.

After the suicide, Missouri passed a law against cyber-harassment. Similar federal legislation has been proposed on Capitol Hill.

MySpace said in an e-mailed statement that it “respects the jury's decision and will continue to work with industry experts to raise awareness of cyberbullying and the harm it can potentially cause.”

A status conference on the Los Angeles case was set for Dec. 29.

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