Friday, July 18, 2008

The Jagged Edge - Part 3

The first question that comes to mind when reviewing the Megan Meier tragedy is whether Lori Drew could be held liable for Megan’s suicide should it be reasonably determined that her conduct contributed to it. Susan Brenner explains why those responsible for the Josh hoax cannot be held accountable for Megan's suicide at CYB3RCRIM3 .

Quote – “One factor is that they clearly never intended for that to happen. I can’t begin to figure out what these adults thought they were doing (never mind the children involved), but whatever it was, they didn’t set out to kill Megan. They were, at most, reckless or negligent in embarking on a course of conduct that resulted in tragedy.

Every state makes it a crime to cause another person’s death recklessly or negligently. The difference between the two types of homicide goes to the foreseeability of the result.

I sympathize with Megan’s parents and I cannot comprehend why adults had nothing better to do than to play such a cruel trick on a child, but however stupid and cruel their conduct was, those responsible for the Josh hoax cannot be held liable under either standard [recklessly or negligently]. To explain why, I’m going to use a very recent Minnesota case: Jasperson v. Anoka-Hennepin Independent School District (Minnesota Court of Appeals, Case # A06-1904, decided October 30, 2007).”

Professor Brenner’s analysis was published before the St. Charles County prosecutor announced his decision and is a superb example of why criminal charges were not filed in Missouri.

Quote – “On December 3rd, after his review of the case, Jack Banas announced that no charges would be brought. In Banas’s reckoning, the Drews are conclusively guilty of little except egregious judgment that set off a chain of horrible events, and deep insensitivity in their aftermath.”

Quote – "The actions of the Drews and Grills are not criminal under existing state law," Banas said, "because their intent was never to harm, stalk, endanger or harass."

Anthony Sebok explored the question of whether Megan Meier’s suicide formed the basis for a successful tort lawsuit at FindLaw.

Professor Sebok explains that lying to hurt someone’s feelings is not a crime. Discounting a negligence suit based upon the lies told he illustrates two factors:

1. “One would have to prove Lori Drew should have foreseen that her comments would lead not just to emotional hurt, but also to a personal injury, such as suicide.

2. “While it might be easy to show that the nasty message Drew put in "Josh's" mouth caused Megan emotional distress, it is much harder to show that it was the legal cause of her death.

A more practical option, according to Sebok, would have been a “suit alleging an intentional tort,” specifically the tort of intentional infliction of emotional distress. “IIED holds an actor liable if, by extreme and outrageous conduct, he intentionally or recklessly causes severe emotional distress to another.”

There have been conflicting reports regarding the Meier's intentions to file a civil lawsuit. Some articles claim the parent’s were seeking civil action while others contend the Meier's rejected that legal avenue. No explanation is offered for the discrepancy as far as I can tell.

The subsequent federal indictment against Lori Drew generated controversy in cyberspace.

Jacob Sullern of Reason Magazine poses the question, Is Being Mean Online a Federal Crime?

Quote –
“Since individual reactions to insults are unpredictable and highly variable, a rule that criminalized speech when it leads to suicide or other forms of self-harm would chill any expression more negative than "Nice day, isn't it?" Because there is no such rule, O'Brien has twisted a law aimed at fraud, spying, vandalism, and child pornography into an excuse to punish a woman everyone hates.”

Jonathan Turley, a nationally recognized legal scholar, has doubts the charges will stick. Turley claims, “The indictment pushes the law to the very breaking point and possibly beyond” Furthermore, he alleges, “The most credible element to the criminal theory is the use of the site to obtain information from Megan. However, on various levels, this is the motivation of many users. Again, the question is whether this is properly a crime as opposed to a tort.”

He sums it up perfectly with, “Obviously, few people are sympathetic with Drew, but the question is whether a bad case is going to make for bad law.”

Barb Shelly, a columnist for, opined:

Quote –
“I'm not inclined to expend much sympathy on Lori Drew, but she's clearly being indicted because of the unintended consequences of her actions. There aren't enough lawyers in the world to prosecute everybody who embarrasses and bothers people in Cyberspace.”

The Los Angeles Times published a sensible opinion.

Quote -
“State laws against cyber-bullying and other forms of harassment are designed to draw the line that separates death threats, stalking and other injurious behavior from deceptive but legal speech. It's an important distinction that the federal statute ignores, and it shouldn't be lost in the outrage over Megan's death.”

Dan Gillmor, who is involved in citizen-media efforts, had this to say:

Quote -
“But if this is a crime, then America is a land of criminals — because this is a practice that anyone with common sense engages in from time to time. Yes, some do it for mischief. But pseudonyms are also about sometimes justified self-protection.”

TChris, of TalkLeft, calls the indictment “dubious”.

Quote -
“This prosecution is an abusive and dangerous misapplication of the law. The indictment should be dismissed and the U.S. Attorney's Office should be given a good scolding.”

Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, opined at Wired.

Quote -
"To say that you're violating a criminal law by registering to speak under a false name is highly problematic. It's probably an unconstitutional reading of the statute."

“When asked if this is the kind of case Granick would want to litigate, she said, "If [Drew] calls me I'd be very interested in talking with her about this case. I think there is such an extreme reading here, and I do think it's dangerously flawed for other cases. I think it's scary and it's wrong and something should be done about it."

Dave Wieneke, an online strategist, appropriately cut to the chase at UsefulArts.

Quote -
“But is MySpace a victim of fraud?
Or are they responsible for the systems that allowed both parties in this story to create misrepresentations? Is the company a victim or a responsible party? The company is wisely keeping a low profile, so as not to become the story.

The problem here may be that bad parenting can have tragic results, but for the most part it can’t be criminalized. The acts ascribed Lori Drew suggests she’s either the world’s most overinvolved parent, or she’s covering for her teenage daughter. Meanwhile, Megan Meier’s parents knew their daughter, who was reportedly being treated for depression, was flirting online with a boy three years her senior.”

Susan Brenner explains, with remarkable precision, why she disagrees with the federal charges at CYB3RCRIM3 .

Quote -
“The people who created the Constitution and our federal system intended that criminal law be enforced firstly and foremost at the state and local level. They intended that because crime and the imposition of criminal liability are matters that resonate with local concerns, local mores, local attitudes. They also didn’t want too much power centralized in the federal government.”

Noting that Lori Drew faces up to twenty years in prison, Ms. Brenner outlines the goals of sentencing:

"Incapacitation, Deterrence, Rehabilitation, and Retribution."

Quote - “Does it make sense to lock Lori Drew up for 20 years? Would doing that achieve any or all of these goals?

This goes to an issue I often raise with my students: overcharging. If Missouri had a harassment statute that would have encompassed what Ms. Drew allegedly did, then it seems to me it would be perfectly appropriate to charge her with that crime, convict her if the evidence established that she committed it and then punish her "enough" to achieve whichever of the above goals were driving the prosecution. So, in our hypothetical, she's convicted of harassment under state law and, what?, maybe fined, maybe given 30 days in jail, put on probation for a few years, required to work at suicide prevention center or some other appropriate place. That would make sense to me.

I just don't see the sense in, as the saying goes, "making a federal case out of it", especially not when it could mean 20 years in jail.”

According to ABC News, Tina Meier has a different outlook.

Quote -
"She deserves the life sentence that our family has been given," Tina Meier said today on "Good Morning America. I am hopeful she will face the maxiumum 20 years in prison," Tina Meier said. "Twenty years is unfortunately not enough for her," Meier added. "She played a ridiculous game with my daughter's life."

In November of 2007, Tina Meier told a local newspaper that she didn't think anyone involved in the hoax intended for her daughter to commit suicide, but that she thought it was "vile" that an adult would be involved in such behavior.

Next: A pound of flesh

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Monday, July 07, 2008

The Jagged Edge - Part 2

U.S. District Court, Central District of California



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.


(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-
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


(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."


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 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 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 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 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:

- 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 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 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.


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.

Next: Other opinions

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