The Jagged Edge - Part 2

U.S. District Court, Central District of California
U.S.A. v. LORI DREW

Charges:

18 U.S.C. 371: CONSPIRACY

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

In summary, those activities which courts have held defraud the United States under 18 U.S.C. § 371 affect the government in at least one of three ways:

1. They cheat the government out of money or property;
2. They interfere or obstruct legitimate Government activity; or
3. They make wrongful use of a governmental instrumentality.

18 U.S.C. 1030 (a)(2)(C), (c)(2)(B)(ii): ACCESSING PROTECTED COMPUTERS TO OBTAIN INFORMATION

(a) Whoever—
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains--
(C) information from any protected computer if the conduct involved an interstate or foreign communication;

(c)The punishment for an offense under subsection (a) or (b) of this section is-
(2)(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), or an attempt to commit an offense punishable under this subparagraph, if--
(ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; or

18 U.S.C. 2 (a), (b): AIDING AND ABETTING AND CAUSING AN ACT TO BE DONE

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The Congressional Research Service offers the following summary in a report for Congress:
“The federal computer fraud and abuse statute, 18 U.S.C. 1030, protects computers in which there is a federal interest -- federal computers, bank computers, and computers used in interstate and foreign commerce. It shields them from trespassing, threats, damage, espionage; from being victimized by computer viruses, worms, Trojan horses, time bombs, denial of service attacks, cyber crime, cyber terrorism and cyber attacks; and from being corruptly used as instruments of fraud.

It is not a comprehensive provision, instead it fills gaps in the protection afforded by other state and federal criminal laws. It is a work that over the last two decades, Congress has kneaded, reworked, recast, and amended to bolster the uncertain coverage of more general federal trespassing, threat, malicious mischief, fraud, and espionage statutes.”

The CRS report further stipulates that subsection 1030 (a)(2) outlaws:

• Computer trespassing resulting in exposure to certain governmental, credit, financial, or commercial information, 18 U.S.C. 1030(a)(2);

Obtaining Information by Unauthorized Computer Access (18 U.S.C. 1030(a)(2))
“One step beyond simple hacking is the prohibition against acquiring certain protected information by intentional unauthorized access. It covers three types of information -- information of the federal government, consumer credit or other kinds of financial information, and information acquired through interstate or foreign access.”

Case Law: AOL v. LCGM, Inc. Opinion and Order

Count III: Exceeding Authorized Access in Violation of the Computer Fraud and Abuse Act

"The facts before the Court establish that defendants violated 18 U.S.C. §1030(a) (2) (c) of the Computer Fraud and Abuse Act, which prohibits individuals from "intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] information from any protected computer if the conduct involved an interstate or foreign communication." Defendants’ own admissions satisfy the Act’s requirements.

Defendants have admitted to maintaining an AOL membership and using that membership to harvest the e-mail addresses of AOL members. Defendants have stated that they acquired these e-mail addresses by using extractor software programs. Defendants’ actions violated AOL’s Terms of Service, and as such was unauthorized. Plaintiff contends that the addresses of AOL members are "information" within the meaning of the Act because they are proprietary in nature. Plaintiff asserts that as a result of defendants’ actions, it suffered damages exceeding $5,000, the statutory threshold requirement."

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Interesting! What’s wrong with this picture aside from the fact the indictment against Lori Drew based upon these statutes is baffling?

Answer: The government’s intervention in what should be a state or civil matter is now being subsidized by American taxpayers. Why?

According to the U.S. National Debt Clock, “The Outstanding Public Debt as of 26 Jun 2008 at 02:03:44 AM GMT is: $9,380,883,456,500.70

The estimated population of the United States is 304,242,625
so each citizen's share of this debt is $30,833.56.”

The THE EMPLOYMENT SITUATION: MAY 2008 wasn’t rosy:
“The number of unemployed persons increased by 861,000 to 8.5 million in May, after seasonal adjustment, and the unemployment rate rose by 0.5 per- centage point to 5.5 percent. A year earlier, the number of unemployed persons was 6.9 million, and the jobless rate was 4.5 percent.”

I would hope that 18 U.S.C. 1030 was designed to punish hackers like the griefers that assaulted epilepsy patients via a computer. The attackers intentionally inflicted physical harm on the victims by causing seizures and migraines. A legal theory applying this statute to Lori Drew is incomprehensible.

As fuel prices skyrocket and the value of the dollar declines, the biggest kicker is that federal prosecutors are willing to assume the responsibility of enforcing the ”Terms of Service” on behalf of MySpace, a corporation with a gross income of $550 million for the 2007 fiscal year!

Quote - “News Corp. said its Fox Interactive unit, which largely consists of MySpace, turned a profit of $10 million on revenue of $550 million for the fiscal year ending June 30. Overall, News Corp. reported fourth quarter earnings from continuing operations of $890 million on revenue of $7.36 billion. News Corp. chief financial officer David DeVoe said the revenue figures exceeded the company’s internal benchmarks. News Corp. had projected MySpace revenue to top $500 million this fiscal year.”

MySpace, the company that won a landmark $230 million judgment under CAN-SPAM against notorious spammer Sanford Wallace and Walter Rimes. The defendants were also held responsible for a $1.5 million dollar fine under CA Anti-Phishing Statute and ordered to reimburse MySpace $4.7 million in attorney fees.

MySpace, the social networking giant that won a $6 million award against Media Breakaway and Scott Richter.

MySpace, who reached a settlement of $2.55 million with the Globe.com for violations of a federal spam law.

MySpace, who is currently seeking unspecified damages against Hong Kong-based Blue China Group Ltd.

MySpace, the company that will receive an undisclosed amount of restitution from Samy Kamkar, the 19-year old, who unleashed a scripting worm attack on MySpace.com in October 2005. Kamkar was sentenced to three years probation and ordered to perform 90 days of community service.

MySpace, who was awarded $13,500 in restitution as part of a plea deal in the extortion and illegal access case involving two Long Island men. Shaun Harrison, 19, and Saverio Mondelli, 20, were given three-year probationary terms, restrictions on their access to computers, and 160 hours of community service. Each had faced up to nearly four years in prison.

Suing spammers appears to be a lucrative undertaking for major companies and government agencies. A sampling of court judgments against spammers: MySpace, $234 million; FTC, $1.1 million; EarthLink, $16.4 million; AOL, $13 million; Microsoft, $7 million.

The “Can-Spam Act” prevents states from enacting stronger anti-spam protections, and prohibits individuals who receive spam from suing spammers. Consequently, consumers can either hit the delete button or file a complaint about the receipt of endless junk mail with the FTC.

But I digress. Let's focus on MySpace.

MySpace, a “social networking service that allows members to create unique personal profiles online in order to find and communicate with old and new friends.”

MySpace, the social website where teenagers create bogus web pages impersonating and maligning teachers or anyone else they feel indignant about.

MySpace, where an impersonator exploited the likeness of Shawn Hornbeck less than a month after authorities rescued him from the apartment where he was held captive for more than four years.

MySpace, “A place to find friends" and drugs. “Crack cocaine” slipped through the cracks more than 10,000 times in a simple word search at MySpace according to ABC7 news.

MySpace, where losers post pictures and brag about the potted plants growing in their closets.

MySpace, where sexual predators surf and Lodi police are not allowed.

MySpace, where teenagers plan attacks on other kids and then gloat over it.

MySpace, where juvenile delinquents taunt police officials.

MySpace, where gang members let off steam. “Former Escondido gang Detective Luis Rudisell has even seen his own photo posted on MySpace, with a sniper's scope on his head and the caption “(Expletive) Rudisell.”

MySpace, where teenage thugs from Charlotte, NC showcase their toys.

MySpace, a web-based service that has immunity from liability by the Communications Decency Act of 1996 (“CDA”), 47 U.S.C § 230.

Section 230 of the Communications Decency Act added protection for online service providers and users from action against them for the actions of others, stating in part that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider".

Effectively, this section immunizes ISPs and other service providers from torts committed by users over their systems, unless the provider fails to take action after actual notice or is itself involved in the process of creation or development of the content.

It appears the Department of Justice has developed a cozy relationship with Internet companies such as MySpace. Thanks to current government legislation, social networking sites along with service providers have been awarded astronomical judgments while enjoying immunity from liability, which is one sweet deal in my book. And now the Justice Department has adopted the surrogate position of enforcing a company’s terms of service. If the DOJ is successful in this aggressive endeavor, can we expect the federal government to uphold other service provider’s restrictions?

According to United States Attorney, Thomas P. O’Brien
the answer is a resounding yes!

Quote – “When asked at a press conference what this might mean for other people who engage in similar behavior, O'Brien responded that, "Anyone who engages in harassment and violates the law similar to Ms. Drew is subject to investigation and prosecution on the right facts."

But David Wood, of ConsumerAffairs.com alleges there is no easy remedy for impostor postings on social networking sites.

Quote – "Under current law, impostor profiles and other objectionable Web content are here to stay, at least until social networking Web sites take the responsibility of setting up effective verification procedures.

But it's not likely that will happen, said one attorney knowledgeable in the topic, because Web sites potentially open themselves to a greater risk of prosecution by trying to verify all postings than by verifying none.”

The proof in the pudding… Consumer complaints: MySpace.com.

- I have had the same experiences as many have already documented on this website. Perhaps these complaints should go to the California Attorney Generals Office and Los Angeles Prosecutors Office. Anyone have the links to these jurisdications?

- My son died in a car accident in August 2007. He had a myspace profile that is now the target of spammers. I would like the profile deleted. I have tried to get help from myspace but none is forthcoming. Who do I contact to get it deleted? Preferably a contact that is actually human.

- By this woman putting my son's image on her myspace account, it is allowing everyone and anyone to view my 5-year-old. It is not right. I am his mother, and I think myspace should listen to me and remove my son's picture from this woman's profile.

- The wegpage and profile which they have created as me is awful and the comments which they have left are disgusting and abusive. Not only have they stolen my identity but they are damaging my reputation, and as the days go by, this is only getting worse. This is classified as cyberbullying, which you think Myspace would react to ASAP! Myspace is responsable for regulating their site and this is a bad example of them keeping the site secure and safe.

- Someone has made a Myspace blog on my 14-year-old daughter; they managed to doctor her picture and left her indecently dressed and wrote allot of obscenities. We have tried emailing myspace to get this site shut down, but no joy at the moment. It's also in the hands of the West Midlands Police.

- My 12 year old daughter has a myspace and I'm unable to contact Customer Service to have her myspace discontinued. She is under age and even though most of the photos I see on her site are appropriate, she does have access to other sites that are not appropriate for age. There needs to be a way to verify age in application for a site.

- My child interacted with an adult male between May 2007 and October 2007 on MYSPACE. After investigating, I discovered he was a registered sex offender and had FOUR MYSPACE accounts, all with different sexual orientations, different page set ups, etc.

- We communicated that information back to MySpace and they continue to REFUSE to give us back our daughter's MySpace account. Apparently they think protecting the accounts of their underage members from their parents is better for business than trying to assist parents in stopping internet predators and pedophiles from preying on those underage members.

- He has received letters from friends who think it is his page and want to know why his page is so vile and disgusting. His sister also receives many calls asking the same question. As much as she tries to tell them it is a fake page, the embarrassment continues. She constantly has to defend her brother.

- I want these profiles removed and after a week of sending them several complaints a night I want to see myspace.com off the internet. I think it is ridiculous that someone that is 15 could make a profile for a child that is 10 years old and make that 10 year old child 26 years old on one profile and 20 years old on another profile. Myspace. com is not a safe place at all.

- Someone has created a false account with all my personal information/pictures. They are also making false accusations causing unknown people to try and contact with me. They have provided strangers with my phone numbers and job/home address. I am fearful for my life an would like for this situation to be addressed immediately!

- There are over 50 young girls at my daughters school who are under 13! who have MySpace pages. While on these sites, they often see and have access to pornographic text, journalism and photographs. Who is checking these websites?

- Myspace will not delete my daughters account despite my pleadings. I have submitted proof of porn being sent to my daughter among other issues. Parents have no control if the child is getting on somewhere other than home.

- My 11 year old son has a profile on MySpace. I have requested his page be deleted on several occasions. I have given them his date of birth and even offered to send a copy of his birth certificate. I have not heard back from anyone at MySpace.com and my sons page still remains.

- Someone has set up an account with my daughter's picture and is using it as if they are my daughter. My daughter is 10 years old. I have sent emails to have the myspace removed to no avail. Whoever is responding as my daughter is using crude language.

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It's my opinion the American people would be better served if the Justice Department took inventory and spent more quality time protecting their own equipment.

Judge George Wu needs to cut the apron strings and direct MySpace to enforce their own user agreements. This is not a federal case.


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