The target of O'Brien's legal maneuverings was a woman named Lori Drew from a small town west of St. Louis. She was, to put it charitably, an unsympathetic defendant. Ostensibly trying to protect her daughter from rumor-mongering, Drew joined the 13-year-old and two other teenage girls in perpetrating a cruel hoax on a young neighbor, Megan Meier. One of the girls created a MySpace profile for a fictitious 16-year-old boy, and the group used it to flirt with Megan before suddenly turning on her. Apparently overwhelmed, Megan committed suicide shortly before her 14th birthday.
There's a cruel streak to adolescence, and cyber-bullying is the latest form of it. It's particularly pernicious, given the combination of intimacy and deception that the Internet enables. But there's no federal statute against cyber-bullying, and, like most states, Missouri had no law against it when the Meier incident occurred. Prosecutors in St. Charles County, Mo., declined to prosecute Drew or the teens involved, saying there wasn't enough evidence to prove a violation of the state's laws against harassment.
That's when O'Brien -- whose jurisdiction includes Beverly Hills-based MySpace -- turned to Section 1030, arguing that Drew's use of the siteamounted to unauthorized access because the company's terms of service prohibit fake names and abusive comments. Prosecutors also argued that Drew intended to harm Megan, because she had been warned that the girl was suicidal and being treated for depression. The jurors couldn’t agree on the charge that Drew conspired to violate Section 1030, a felony that carries a prison term of up to 20 years. But they did find her guilty on three misdemeanor violations of that law. (No charges were brought against any of the girls, including Ashley Grills, then an 18-year-old employee of Drew, who set up the bogus MySpace account. Grills testified for the prosecution.)
The jurors' urge to punish Drew is understandable -- according to the jury forewoman, eight of the 12 panel members wanted to convict her of the felony count. Adults are supposed to help young people cope with the outrages of adolescence, not take part in them. Nevertheless, the federal government has no business using an anti-hacking statute to enforce an online business' usage rules. When lawmakers targeted unauthorized access, they were aiming at the cyberspace burglars who pick electronic locks or phish for passwords, not people who walk through open doors on the Internet to do things their online hosts cautioned them not to do.
As a group of technology advocates and law professors argued earlier this year, the prosecutors' interpretation of Section 1030 would "criminalize the everyday conduct of millions of Internet users." The government should be particularly wary when the allegedly criminal activity is speech, even when that speech leads to something as tragic as Megan's death. Websites can and should do a better job of responding to cyber-bullying and other abuses of their terms of service, rather than relying on the federal government to do it for them. Wu reserved judgment when Drew's lawyer asked him to acquit Drew of the charges before the jury began its deliberations. He should grant that motion now.