The Lori Drew Indictment — More Questions Than Answers on the Basis for the Criminal Charge

The Lori Drew indictment in the Megan Meier case is finally out and it makes for interesting reading. However, as indicated earlier, I remain a bit skeptical that the prosecutors can make this one stick.

The disturbing facts of this case have already been discussed on this blog, click here.

The indictment pushes the law to be very breaking point and possible beyond. As noted earlier, many people assume false identities and stories on the Internet. For many, that anonymity is one of the great draws of chat rooms and various sites. However, it is precisely that type of conduct that is criminalizing in this indictment. The prosecutors are alleging that Drew violated MySpace’s Terms of Service (TOS), which requires truthful and accurate registration as well as proper conduct (no harassment etc.). If that is the rule, it is honored exclusively in the breach on the Internet.

A recent case shows how prevalent such conduct is, click here.

The prosecutors use their favorite weapon in weak cases: conspiracy. But conspiracy to do what? This is a conspiracy to do what a significant number of other users do: to engage in harsh and misleading and often false representations. As I have written before, this is a case that belongs in tort not criminal law. Indeed, I remain confused why the family did not pursue Drew in tort. Instead, the prosecutors are criminalizing the tort of intentional infliction of emotional distress, which is referenced directly in the indictment.

The prosecutors then use 18 U.S.C. 1030(a)(2) to lower the criminal boom. This would make it a crime to break an Internet-based contract on use. Yet, Section 1030 was never intended for such a purpose. Very few people actually read the TOS, but can now be charged at the whim of prosecutors. Since thousands and thousands of people commit such violations, it would allow prosecutors to pick and chose folks to charge. Obviously, few people are sympathetic with Drew, but the question is whether a bad case is going to make for bad law.

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.