Lori Drew, the 50-year-old woman convicted of unauthorized computer access last year in the country’s first federal cyber-bullying prosecution will be sentenced July 2.  The judge is also considering a defense motion to overturn the jury verdict.  Drew’s defense attorney filed a motion for a directed acquittal after the prosecution rested its case, claiming that the government failed to prove that Drew had intentionally violated MySpace’s terms of service to gain unauthorized access to its computers.  That motion is still under advisement.

Drew, was indicted in  federal court after Missouri prosecutors refused to charge her as there was no evidence of a state crime.  It was as the first time that a federal statute designed to combat computer crimes was used to prosecute what were essentially a breach of a user agreement on a social networking site.

At trial, Drew was convicted of violating the Computer Fraud and Abuse Act, the federal anti-hacking law. The jury bought the prosecutor’s argument that Drew violated the statute  in obtaining unauthorized access to MySpace’s computers by violating the site’s terms of service despite the fact that  Drew never read the Terms Of Service.

The jury found that while she may have never read the TOS, she knew what she was doing violated the terms.  The conviction of the lessor misdemeanor counts were for the simple act of the unauthorized access.  Lori Drew was NOT found guilty of any  felony charge directly related to the suicide of Megan Meir. The bottom line is that Lori Drew was found guilty of violating the Myspace Terms Of Service.   In essence, the jury found that knowingly violating the Terms Of Service of a social web site constitutes a federal crime.

The judge should overturn the conviction and set Lori Drew free.  Not because what she did wasn’t reprehensible, outrageously cruel behavior.  She simply committed no crime.  She breached a contractual agreement.  I suspect that in  a civil suit, the Meirs will force her into bankruptcy for whatever that’s worth but again, there was no crime.  If the verdict is not overturned at the trial level, it will certainly be reversed by the judges of the 9th Circuit who I assume will be reluctant to criminalize breach of contract.

While we all accept the idea that cyber-bullying is bad and that there should be consequences for  those who engage in such behavior, that is for Congress to decided, not prosecutors coming up with novel theories having no connection to the  intent of the actual law so they can make social policy.  That is not their job.  That is the job of our lawmakers.  One may argue that courts routinely interpret and extend statutes to conclusions not previously reached by other courts.  That is true.  There however must be a logical conclusion that has some relation to the Congressional intent of the statute.  There is no such nexus here.

In the meantime, now that a  jury has found that it is a federal crime to intentionally violate the Terms of Service on a website watch out.  Be careful when you  create your bogus Match.com or Facebook profile with a phony name, photos from 10 years and 30 pounds ago, neglecting to mention your five marriages  and 8 kids and job at Jack In The Box.  You may be surprised when federal agents show up on your doorstep telling you that Congress also intended that the  Computer Fraud and Abuse Act prevent loser 30k Millionaire douchbags from intentionally inflicting emotional distreess on hot young women by lying.   I am deleting my fake accounts as we speak.

Who doesn’t feel sorry for the family of Megan Meir. Their daughter after being harassed mercilessly on Myspace by someone who she thought was a teenage boy by the name of Josh Evan, commits suicide.

We come to find out that the harassment was not by vicious, immature, uncaring Josh, which you could certainly argue happens all the time with teenagers in the real and cyberworld. This harassment however was actually allegedly being perpetrated by vicious, immature uncaring adult Lori Drew who set up a fake Myspace profile, posing as the young Josh Evans. Lori’s daughter was a long time friend of Megans

After months of harassment by this fictional teen peer, Megan, who was already suffering from a myriad of teen social and psychological issues tragically killed herself. You can read a full account of this story in the New Yorker Magazine article.

Lori Drew has now been indicted by a federal grand jury on one count of conspiracy and three counts of accessing protected computers without authorization to get information used to inflict emotional distress on the girl.

Outrageous, immature and cruel behavior by Lori Drew? Absolutely. If this is the kind of behavior she engages in, I would argue she is just as much a danger to the futures of her own children as the mothers in the Texas Polygamist Compound who had their kids placed in foster care. I certainly would not want my kids in the same mall or high school as hers…

In any event, this case engendered enormous publicity and outrage over Drew’s actions and the fact that there did not appear to be any crime committed. Certainly a moral crime but no legal one hence Ms. Drew apparently would continue on her life path not encumbered by the steel bars so many wanted but only her conscience.

In true Jack McCoy, Law and Order style, federal prosecutors decided they they would seek what I call a “outrage indictment” against Lori Drew. An “outrage indictment” is when there is no criminal statute that will hold someone responsible but the public outrage is so great over the act that prosecutors throw every irrelevant statute that has no bearing on the “crime” against the wall to see what sticks. They do this because they know that public outrage is so great that they will get an indictment regardless of how ridiculous the attempt would seen if people were not so outraged over what happened.

The prosecutors even knowing that there is practically no chance of a conviction can then hold their heads high having satisfied the blood lust of those calling for the head of Lori Drew.

I know that Jack McCoy gets convictions all the time on these “outrage indictments” He is my idol.

I certainly understand the publicity and “public deterrent” rationale behind obtaining these “outrage indictments”. Even if you can’t get a conviction there is publicity and deterrent value. Maybe the next idiot parent who would otherwise “act like a child” will think twice and hopefully get some counseling before their next idiot move.

I am not saying there should not be a special place in hell reserved for Lori Drew . Maybe one day there will be appropriate legislation that deals with these types of situations. I have no doubt that there will be numerous emotional “if it was your child” or “you must not have children” type comments. Those are emotional statements. Those are revenge statements. The rule of law is supposed to be unemotional, rational and fairly applied.

Is it a “perversion of justice” that Lori Drew suffers no consequences for her acts? You bet it is. So our solution is to balance out one perversion with another?

A prosecution twisting a statute not intended for this situation to obtain an “outrage indictment” violates every one of those principals and improperly uses the courts to legislate criminal acts Over the next 10 years, you will see proper legislation enacted to address the issue of “cyber bullying” in the social media and other contexts.

Until that time, the rule of law is not about turning Lori Drew into some high tech cyber criminal for which the statute she was indicted under was designed to deal with as much as we would like to see her pay a high price. That is the rule of media justice. That is the rule of outrage justice. That is the rule of a “legal lynch mob”

Not rules to live by….