Web Watchdogs: MySpace Mom's Behavior Hateful But Not Illegal
The amici curiae or legal brief was written by the non-profit organizations The Electronic Frontier Foundation, The Center for Democracy and Technology, Public Citizen, and 14 individuals.
In May, Los Angeles prosecutors charged Drew, of O'Fallon, Mo., of violating The Computer Fraud and Abuse Act (CFAA). At the time, U.S. Attorney Thomas O'Brien said the case is the first time CFAA, which covers accessing protected computers, has been used in a social-networking case.
One month later Drew pleaded not guilty to one count of conspiracy and three counts of accessing protected computers without authorization by violating MySpace's 'terms of service' that prohibit users from, among other things, using fraudulent registration information, using accounts to obtain personal information about juvenile members, and using the MySpace communication services to harass, abuse or harm other members, according to the indictment.
The government alleges that in the fall of 2006, Drew created a MySpace account under the fictitious name "Josh Evans." Drew, posing as "Evans" developed an online relationship with Megan Meier, a 13-year old girl. Meir, who has been described as "emotionally fragile," hung herself after the online correspondence turned sour with a final e-mail from "Evans" telling Meir that the "world would be a better place without you."
"Megan Meier's death was a terrible tragedy, and there is an understandable desire to hold the Defendant somehow accountable for it, if Defendant's conduct was as alleged," the EFF and others stated in the amici curiae.
"But a dangerously overbroad construction of the CFAA would criminalize the everyday conduct of millions of internet users. The novel -- indeed, unprecedented in the history of the CFAA -- interpretation of advanced in the indictment cannot be squared with the plain language of the statute, its legislative history, and the constitutional requirements that criminal statutes provide citizens fair notice, avoid vagueness and comport with the First Amendment. Consequently, amici urge the Court to dismiss the Indictment."
The advocacy group went on to say that applying the CFAA to Drew's conduct would constitute a "serious encroachment on fundamental civil liberties, including freedom of speech. The First Amendment assures the right to speak anonymously online." The advocates acknowledged that while there are state and federal statutes that regulate harassing and otherwise harmful speech, "carefully identifying speech that falls outside of First Amendment protection. Neither of those statutes appears to criminalize the communications from "Josh Evans" to Miss Meier here."
"The fundamental question in this case," according to the brief, "is when does access to a highly popular, everyday Website is without authorization or in excess of authorized access?"
The group stated that, "the plain language of the CFAA does not criminalize an account holder's use of a computer in violation of terms of service or TOS, but a trespasser's access to computer systems or areas of computer networks without permission. In other words, the statute prohibits trespass and theft, not improper motive or use."
The CFAA, originally called the Counterfeit Access Device and Computer Fraud and Abuse Act, was enacted in 1984, according to the advocates, and "is a consensus bill aimed at deterring and punishing certain 'high-tech' crimes," the group said. "Legislative history confirms that Congress intended the CFAA to criminalize intruders who trespassed on computers and computer networks, and does not cover improper motive or use."
The advocates also pointed out that by adopting the "erroneous view of the CFAA" by the prosecution would criminalize the actions of Internet users or Web service account holders who violate a contractual promise to use a computer in a certain way or who ignore or disregard terms of service hidden behind a "legal notices" hyperlink at the bottom of a Web page.
By adopting this "narrow" interpretation, users of other sites such as Google and Match.com could also be charged of violating the CFAA, the group said. They also pointed to an unnamed survey that showed that the majority of teenage MySpace users have entered at least some false information into MySpace, and would "thus be subject to prosecution under the government's theory."
As an example, the group said that under Facebook's terms of use, if a user changes jobs or addresses or even her thoughts on what her favorite movie is, they would need to immediately tell Facebook, as this is information they provided to the company, or "run the risk that her continued use of the site could lead to criminal sanctions."
The group is not condoning Drew's alleged actions, but said that the bottom line is: did she break the law?
"The way she used her account, if the allegations are true, was reprehensible," wrote the group. "But unless her hateful speech rises to the level of harassment or stalking, it is not criminal and cannot be punished; attempting instead to punish that speech under the CFAA merely because it took place on the Internet in contravention to a private terms of service is improper."