Topic: Law and Civil Liberties

Federal Cyberbullying Law: ‘Worth a Try’?

On Wednesday the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing on the proposed cyberbullying legislation I mentioned in this post. Cato adjunct scholar Harvey Silverglate testified at the hearing, and his written testimony is available here.

Silverglate highlighted the pernicious potential of this law, which sits at the nexus of his two books. The Shadow University highlights how speech codes have impaired free expression on college campuses nationwide. Three Felonies a Day shows how federal criminal law has expanded to define various innocuous activities as federal felonies. Put the two together and a federal cyberbullying law is what you get. Silverglate’s recent podcast is available here, and he recently appeared at a Cato book forum.

The proposed cyberbullying law would impose a federal felony (two-year maximum sentence) upon anyone who uses electronic means to communicate a message intended to “coerce, intimidate, harass, or cause substantial emotional distress to a person.” Under this law, rude emails, texts, or blog posts can all subject someone to hard time as long as a receiving party alleges “substantial emotional distress.”

The Committee expressed constitutional concerns over this proposal. Chairman Bobby Scott (D-VA) pointed out the potential chilling effect that this could have on lawful but provocative speech. Ranking Member Louie Gohmert (R-TX) highlighted the unintended consequences that this bill could have — though intended to protect teens from online bullying, Gohmert said it could prompt prosecution of political opponents who had posted offensive things about him on a blog. There is no limiting language in the statute to prevent such a result. Gohmert said that while this would be satisfying, it would also be unconstitutional and among the reasons not to endorse the legislation.

Other problems plague the proposed statute. A Congressional Research Service report highlights some of the constitutional issues, but the discussion at the hearing brought others to the fore. States that have passed their own cyberbullying sanctions have overwhelmingly done so with misdemeanor, not felony, charges. The felony problem is compounded by the fact that this is a statute intended to apply largely to the conduct of teenagers. A felony charge is both excessive and complicated by the fact that there are no long-term federal juvenile detention facilities — they are referred to state facilities instead.

University of Virginia law professor (and former university president) Robert O’Neil said, in spite of all those concerns, that the proposed law could be tweaked to avoid the feared demerits. In his written testimony, O’Neil notes the difference between offensive political speech and “true threats,” the latter not receiving constitutional protection. He proposes using Intentional Infliction of Emotional Distress (IIED), a traditional state tort claim, as the legal basis for justifying the proposed law. This is an odd foundation for a federal criminal law — no state defines IIED as a crime, and many states require a showing of physical harm for a plaintiff to recover. When Rep. Gohmert pressed him on this, O’Neil said that in spite of the lack of legal foundation for a federal crime based on IIED, it was “worth a try.”

No thanks. Let’s not try. Let’s keep our liberties intact and not do further damage to the law.

Incredibly Mild PATRIOT Reform too Much for Dems

At hearings last week on reform and renewal of parts of the PATRIOT Act, Sen. Al Franken (D-MN) made a big show of reading the full text of the Fourth Amendment to Assistant Attorney General David Kris (who, just going out on a limb, had probably seen it).   On Thursday, a notably less vocal Franken joined his a bipartisan majority of his Senate Judiciary Committee colleagues in a lopsided vote that torpedoed even the most modest of proposals to introduce elementary civil liberties safeguards into the USA PATRIOT Act.

As I noted in a post earlier this week, there were two main reform proposals on the table: An impressively comprehensive and careful one floated by Sen. Russ Feingold (D-WI), and a much more limited one from Sen. Patrick Leahy (D-VT) that nevertheless would have tightened the rules to require that so-called “pen/trap” surveillance and broad “section 215” orders for private records only target individuals with at least some plausible connection to terrorists or terrorism.  Some of us had nourished a foolish hope that the Committee might see fit to incorporate some of the most important elements of Feingold’s reform into the Leahy bill. Instead, Sen. Dianne Feinstein (D-CA) swooped in at the last minute with substitute legislation that stripped away even the mild but important limitations that were already there.  There’s a single bizarre exception for records obtained from libraries, presumably because librarians have long been at the forefront of opposition to PATRIOT and section 215 authority, where the higher standard obtains. So if you surf the Web or check out books from your public library, your activities enjoy greater privacy protection than when you surf the web or order books off Amazon from your home or workplace.

The rationale for this was the fear, articulated by Feinstein, that a higher standard might interfere with an important “ongoing investigation.” First, it should be a little distressing if the current investigative methods in use would be utterly disrupted without the ability to broadly acquire records that don’t pertain to terrorists, nor to suspected activities of terrorists, nor even to people directly in contact with suspected terrorists. Second, even granting that it might be better not to change the rules for investigations currently underway, this explanation doesn’t hold up to scrutiny. The authority under 215 to compel the production of records or other “tangible things” (a blood or DNA sample from your doctor’s office, say) has always had a built-in expiration or “sunset” date, which all the proposals under consideration would have extended for another four years. But the sunset provisions have always included a grandfather clause, allowing the new PATRIOT powers and standards to remain in place for ongoing investigations, even as they expired for new investigations. There’s no reason a similar clause couldn’t have been added to Leahy’s reforms in order to  avoid disrupting searches already underway. Finally, Marcy Wheeler of Firedoglake has a guess as to what that “ongoing investigation” entailed, and without going into great detail, it sounds like a sufficiently narrowly tailored order probably should have been available for the kind of investigation Wheeler envisions even under the more stringent standard Leahy had proposed. Back in 2005, incidentally, those slightly stricter standards had won the unanimous acceptance of the Judiciary Committee—so apparent we’ve achieved Change in the level of concern for civil liberties, albeit maybe not the sort for which some of us had Hoped.

But wait, it gets worse.

The standard established in the Feinstein substitute is, at least arguably, even less protective than current law. Thanks to some anemic checks imposed under the 2005 PATRIOT reauthorization, investigators at least have to present a judge with a statement of facts “showing reasonable grounds to believe” that the records or pen/trap surveillance sought will be “relevant” to an investigation, with records pertaining to suspected terrorists or their activities or their contacts being “presumptively relevant.” Feinstein’s bill scraps that language and requires “a statement of the facts and circumstances relied upon by the applicant to justify the belief of the applicant” that the information sought will be “relevant,” though it also removes the language specifying categories of “presumptively relevant” records. So why bother swapping out the “reasonable grounds to believe” language for this awkward, doubly-reflexive formulation about the applicant’s belief? One assumes it has to make some difference or they wouldn’t have bothered, and it sounds rather like an attempt to eliminate any hint of an objective standard of review (are the grounds objectively reasonable?) in favor of something like a “good faith” test that focuses on the investigator’s subjective state of mind.

None of this is final yet: The Judiciary Committee will meet next Thursday, consider potential amendments for a maximum of one hour, and then vote on the final language to send to the full Senate for approval. But the clear momentum at present is against any kind of meaningful change to the sweeping surveillance powers Congress has granted the government in recent years.

Supremes to Hear PATRIOT ‘Material Support’ Challenge

As I mentioned in passing in my post yesterday, one of the reforms in Russ Feingold’s JUSTICE Act involves tweaking the USA PATRIOT Act’s definition of “material support” for terrorism to ensure that it doesn’t cover things like humanitarian aid or legal assistance. Today, the Supreme Court agreed to hear a case concerning that very issue:

The key plaintiff in the current appeal is the Humanitarian Law Project, a Los Angeles, California-based non-profit that says its mission is to advocate “for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law.” HLP sought to help the Kurdistan Workers’ Party, a group active in Turkey. Known as PKK, the party was founded in the mid-1970s and has been labeled a terror organization by the United States and the European Union. Its leaders have previously called for militancy to create a separate Kurdish state in parts of Turkey, Iraq, Syria and Iran, where Kurds comprise a population majority. […]

Another plaintiff is an American physician who wanted to help ethnic Tamils in his native Sri Lanka. Much of the island nation is controlled by the rebel Liberation Tigers of Tamil Eelam, which has also fought for decades to carve an independent state. The government claims the Tamil Tigers have “used suicide bombings and political assassinations in its campaign for independence, killing hundreds of civilians in the process.”

HLP and a group of Tamil doctors say they merely wanted “to provide their expert medical advice on how to address the shortage of medical facilities and trained physicians” in the region but “they are afraid to do so because they fear prosecution for providing material support.”

A federal appeals court agreed with the groups that the statute as written is unconstitutionally vague; the government wants to preserve the current broad language. Arguments won’t take place until early next year, but if you can’t wait for a preview, check out this exchange between David Cole and Paul Rosenzweig on PATRIOT’s material support provision, part of a highly illuminating series of debates on aspects of the law (as originally written) hosted by the American Bar Association.

Contempt of (Secret) Court?

At last week’s House Judiciary Committee hearing on the PATRIOT Act, Rep. Hank Johnson (D-GA) raised an interesting question I haven’t seen discussed much: What happens to someone who willfully violates an order of the highly secretive Foreign Intelligence Surveillance Court? (FISA)

Generally, courts have the right to enforce their own orders by finding those who disobey in contempt, and a line from a rare public version of an opinion issued by the Foreign Intelligence Surveillance Court of Review suggests that the same holds here, noting that a service provider who challenged the (now superseded) Protect America Act “began compliance under threat of civil contempt.” (There is, interestingly, some redacted text immediately following that.) Contempt proceedings normally fall to the court that issued the original order.

A finding of civil contempt will typically result in the incarceration of the offending party until they agree to comply—and on the theory that the person “holds the keys to their own cell,” because they’ll be released as soon as they fall in line, normal due process rules don’t apply here. Of course, there are ways of violating the order that make it impossible to comply after the fact, such as breaching the gag rule that prevents people from disclosing that they’ve been served with orders, or (getting extreme now) destroying the records or “tangible things” sought via a Section 215 order. In those cases, presumably, the only recourse would be criminal contempt, for which you’re supposed to be entitled to a jury trial if the penalty is “serious” and involves more than six months incarceration.

That obviously raises some interesting problems given the extraordinarily secret nature of the FISA Court. In the public version of the opinion I linked above, the name of the petitioner and all identifying details are redacted, even the ruling was released six months after it was handed down, so as to avoid tipping off targets about specific providers that have received orders.

Now, I’m going to take a leap of faith and assume we’re not at the point of “disappearing” folks off our own streets, but it is a puzzle how you’d actually carry out enforcement and penalty, if it ever came to that, consistent with the secrecy demanded in these investigations.

Supremes Take Gun Rights Issue Nationwide

Supreme CourtWith its decision today to hear the case of McDonald v. Chicago, the Supreme Court should settle the question of whether states must recognize the Second Amendment right to keep and bear arms. In June of 2008, in District of Columbia v. Heller, the Court found, for the first time, that the federal government must recognize the Second Amendment right of individuals, quite apart from their belonging to a militia, to have an operational firearm in their home. But the decision left open the question whether states were similarly bound.

Thus, the so-called incorporation doctrine will be at issue in this case – the question of whether the Fourteenth Amendment “incorporates” the guarantees of the Bill of Rights against the states. The Bill of Rights applied originally only against the federal government. But the Fourteenth Amendment, ratified in 1868, left open the question of which rights states were bound to recognize. The modern Court has incorporated most of the rights found in the Bill of Rights, but the Second Amendment’s guarantees have yet to be incorporated.

Moreover, a question that will arise in this case is whether the Court, if it does decide that the states are bound by the Second Amendment, will reach that conclusion under the Fourteenth Amendment’s Due Process Clause or under its Privileges or Immunities Clause, which has been moribund since the infamous Slaughterhouse Cases of 1873. In its brief urging the Court to hear the McDonald petition, the Cato Institute urged the Court to revive the Privileges or Immunities Clause.

A Preliminary Assessment of PATRIOT Reform Bills

Hearings were held on both sides of the Hill last week to consider a trio of surveillance powers set to expire under PATRIOT Act sunset rules. But the stage is set for a much broader fight over the sweeping expansion of search and surveillance authority seen over the past eight years; the chairmen of both the House and Senate Judiciary Committees have announced their intention to use the occasion to revisit the entire edifice of post-9/11 surveillance law. Two major reform bills have already been introduced: Sen. Russ Feingold’s JUSTICE Act and Sen. Patrick Leahy’s USA PATRIOT Sunset Extension Act. Both would preserve the core of most of the new intelligence tools while strengthening oversight and introducing more robust checks against abuse or overreach. The JUSTICE Act, however, is both significantly broader in scope and frequently establishes more stringent and precisely crafted civil liberties safeguards. Most observers expect the Leahy bill to provide the basis for the legislation ultimately reported out of Judiciary, the central question being how much of JUSTICE will be incorporated into that legislation during markup later this week. While the surveillance authorities and oversight measures covered in each bill are varied and complex, it’s worth examining the differences in some detail.

Immunity

One thing to get out of the way first: Most of the press coverage I’ve seen of Feingold’s bill to date leads with the provision that would repeal the retroactive legal immunity Congress granted to telecommunications firms that participated in the National Security Agency’s program of warrantless wiretaps. During last year’s debate over reforms to the Foreign Intelligence Surveillance Act, most reporters seem to have decided that because the immunity controversy was the sexiest or the easiest aspect of the FISA amendments to explain, it was also the most important. Which is pretty much backwards. Granting retroactive immunity was a bad idea, but the repeal clause in the JUSTICE Act is (a) not terribly likely to pass, and (b) ultimately trivial compared with the need to place reasonable limits on powers that, without strong oversight, could permit large-scale spying on Americans. In a paradoxically somewhat ominous development, a separate telecom immunity bill was introduced Monday with the co-sponsorship of both Feingold and Leahy, along with Chris Dodd and Jeff Merkley. I say “ominously” because it can be read as indicating a consensus among Democratic senators to focus on the headline-friendly immunity issue at the expense of the more important safeguards on future surveillance. More hopefully, breaking it out could be a “we tried” move designed to win plaudits from allies and draw fire from enemies without letting the measure be a poison pill in the broader reform bill, where the stuff that matters ends up. Time will tell, obviously.

Lone Wolves

That aside, let’s start with the three expiring provisions, which I discussed briefly last week.  The so-called “lone wolf” provision allows the special investigative powers of FISA, which normally require a target to be an “agent of a foreign power,” to be used on non-citizens who lack any apparent affiliation to a terrorist group, but nevertheless are thought to be engaged in “international terrorism or activities in preparation therefor.” The Leahy bill would renew it; Feingold’s JUSTICE Act does not. Lone wolf authority has never been invoked, suggesting that, as yet, it has been neither subject to abuse nor particularly urgently needed. But since the statutory definition of a “lone wolf” requires evidence of criminal conduct—engagement in “international terrorism”—any case in which it would apply should also be a case where investigators would be able to obtain an ordinary Title III criminal warrant.

That seems like the more appropriate approach for some of the cases that the Justice Department apparently thinks would be covered, such as a person who “self-radicalizes” by reading terrorist Web sites. If that is the extent of the “international” connection required, the provision uncomfortably blurs the line between domestic national security investigations, for which the Fourth Amendment demands a traditional warrant, and foreign intel investigations where an array of special considerations closely linked to the actual involvement of “foreign powers” justify greater leeway for investigators.

Roving Taps

Both bills would renew FISA’s “roving wiretap” authority, which permits investigators to eavesdrop on targets without specifying a particular phone line or e-mail account in advance, in order to deal with suspects who may rapidly change communications venues in an attempt to thwart surveillance. Under FISA, however, owing to the difficulties inherent in foreign intel surveillance, the target of a warrant can be merely described rather than directly identified.  This led to worries about “John Doe” roving warrants that would contain neither the target’s name nor any particular location. Congress added some extra language in 2006, requiring the target to be “specifically described”—that is, if not a name, a precise enough description to single out a unique individual—in roving warrants, and also required after-the-fact notice of the court when surveillance “roved” to a new facility.

Given the secrecy inherent in FISA proceedings, it’s impossible to know precisely how investigators and the court have interpreted this new language, or whether it truly provides an adequate safeguard. Where the Leahy bill would renew roving as currently written, JUSTICE adds the requirement that roving warrants contain the “identity” of the target, and codifies the principle that roving taps should only be activated during periods when it is reasonable to believe the target is “proximate to” the facility. The latter language, it should be noted, may actually have the practical effect of loosening restrictions on roving taps. Even in roving cases, FISA’s minimization provisions require an evidentiary “nexus” between the target and a facility that “is being used, or about to be used” by the target. The “proximity” standard pulled across from the Title III criminal context may actually be more permissive.

215 “Tangible Thing” Orders

Last of the provisions expiring this year is authority  under section 215 of FISA, to compel the production of “any tangible thing”  from just about anyone, though it’s primarily intended to cover various kinds of business records. Under the original PATRIOT Act, this required only a certification to the secret FISA court that the records or objects sought were “relevant” to an investigation. In 2006, Congress added a requirement that applications for 215 orders include some factual showing of relevance, but many kinds of requests were deemed presumptively relevant.

Both bills tighten this up, with some minor differences. All now limit 215 orders to records pertaining to suspected agents of foreign powers, the activities of those agents, or persons known to be in direct contact with or otherwise linked to those agents. This preempts expanding friend-of-a-friend fishing expeditions where the target’s father’s brother’s nephew’s cousin’s former roommate’s colonoscopy results are potentially “relevant.” Feingold adds a “least intrusive means” requirement when the records pertain to “activities”—since in that case the presumption is that the identities of the specific targets are unknown, and the order seeks to discover them. Feingold’s bill also permits records to pertain to a “subject of an ongoing and authorized national security investigation” other than an agent of a foreign power, which would appear to broaden the scope of accessible records.

Neither bill responds to the concern raised by civil libertarians that “contact” with a suspect is too vaguely defined. Again, since we’re necessarily ignorant about precisely how courts have construed the “relevance” standard, it wouldn’t hurt to make explicit that when the records sought pertain to non-targets in “contact” with a target, there be some showing that establishes a nexus between the nature of the contact and the investigatory purpose to obtain foreign intelligence information.

National Security Letters

That covers the expiring provisions. Fortunately, both bills recognize that it would be fruitless to tighten restrictions on 215 orders without doing something to rein in the vastly more frequently used National Security Letters. An Inspector General audit found that in at least one instance, the FBI improperly used NSLs to obtain information they had previously sought under a 215 order, and which the FISA court had denied on the grounds that the investigation raised First Amendment concerns.

More generally, it’s believed that, especially after Congress imposed some restrictions on the scope of 215 orders, investigators have preferred to instead rely on relatively unfettered NSLs whenever possible. Almost 50,000 were issued in 2006 alone, and the majority were used to obtain information about U.S. persons.  These are slightly more restricted in their application, allowing acquisition of records from telecoms and “financial institutions,” but PATRIOT removed many limitations on the types of records that could be sought from those institutions, and post-PATRIOT reforms vastly expanded the definition of “financial institution” to cover many businesses we wouldn’t intuitively describe that way: pawnshops, casinos, travel agencies, businesses with lots of cash transactions, and probably your nephew’s piggy bank. Crucially, they are issued by investigative agencies—mainly the FBI—without court approval. Inspector General audits have discovered rampant misuse of this tool.

Both bills contain language parallel to their 215 sections requiring a tighter link between the records sought and the subject of the investigation. Significantly, the JUSTICE Act also restores pre-PATRIOT limitations on the kinds of records that can be sought, limiting NSLs to relatively basic information about clients or subscribers and requiring a court order for more sensitive data. The Leahy bill would establish a new four-year sunset for expanded NSL authorities; Feingold’s does not, presumably because it already substantially rolls back PATRIOT’s expansion of those authorities. Greg Nojeim of the Center for Democracy and Technology argues that NSL reform is the most important part of the PATRIOT reauthorization debate.

Gag Orders

NSLs and 215 orders are both routinely accompanied by gag orders, which several courts have found to raise significant First Amendment problems.  Both bills allow recipients of NSLs or 215 orders to challenge both the orders and any accompanying gag, and shift the burden of proof from the recipient to the government to show that the gag—now limited in duration, but renewable—is necessary to avert harm to an investigation or to national security. Previously recipients seeking to challenge a gag were in the unenviable position of proving that there was “no reason” to think disclosure could have any adverse consequence. JUSTICE, however, goes further in detailing the specific kinds of harms that may justify imposition of a gag, and requiring a showing a direct link between the alleged harm and the particular investigation, while the Leahy bill permits more generalized and vague allegations of harm.

Also covered under both bills are pen registers and trap-and-trace devices, typically bundled together under the rubric of “pen/trap” surveillance, which involves acquiring communications metadata—the numbers and times of incoming and outgoing phone calls, e-mail addresses, Web URLs visited, and the like—under a lower standard than would be required for a full-blown search or wiretap. Again echoing the language of their 215 and NSL provisions, both bills put some teeth into the “relevance” requirement by limiting whose metadata can be obtained. JUSTICE, however, also imposes these limits on criminal pen/trap orders for the first time, closing a potential loophole that would remain if only FISA pen/trap orders were covered.

Reporting and Audits

Finally, the Leahy and Feingold bills both include an array of enhanced reporting requirements, mandating somewhat more detailed public disclosure of how often different investigative tools are used. Leahy’s bill also requires the Inspector General of the Department of Justice to conduct a series of annual audits, with reports to Congress, on the use of “tangible things” orders, pen/trap surveillance, and NSLs.

JUSTICE-Only Reforms: FISA Amendments Act

That covers the terrain in which the two bills overlap.  But arguably the most important difference between the Leahy and Feingold bills—and along with more stringent NSL reform, perhaps the most important component of the JUSTICE Act that should be ported into whatever bill is finally reported out of Judiciary—concerns the changes made to the ill-advised FISA Amendments Act passed last year.That law gave the Attorney General broad power to authorize wiretaps aimed at communications between the U.S. and other countries, with only anemic court oversight.

The JUSTICE Act provides stronger barriers to “reverse targeting,” in which an authorization nominally directed at a party abroad is granted for the purpose of eavesdropping on a particular U.S. person’s foreign communications. The new language clarifies that surveillance is impermissibly “reverse targeted” when it is a “significant purpose”—as opposed to “the purpose”—of the surveillance to listen in on the American party. When one side of a communication is in the U.S., the bill triggers additional requirements that either the particular communication be relevant to terrorism (not merely “foreign intelligence,” which is far broader) or that the foreign side of the communication is affiliate with a terrorist group.

Perhaps most important of all, JUSTICE bars “bulk collection”—massive, vacuum cleaner acquisition of international communications—by requiring that at least one party to any communication “acquired” be an actual individual target, though not necessarily a named or known target. While this is plainly intended to prevent the kind of Orwellian computer-filtered fishing expeditions civil libertarians have worried might be authorized, it’s important to note that there’s a potentially huge loophole here, involving ambiguity about the point at which a communication is technically “acquired.” It’s too complicated to cover in detail here, but I’ve written about it in my previous life as a journalist. If, as the government has argued in the past, acquisition only occurs when an intercepted communication is “fixed in a human readable format,” the new language would bar bulk recording in an intelligible form, but not necessarily bar bulk collection for computer filtering. Again, the issues here are fairly complex, and I’m working on a paper that takes them up in greater detail.

Other JUSTICE-Only Reforms

There are a hodgepodge of other changes in the ambitious JUSTICE Act, and I’ll just mention very briefly some of the most important ones. The bill puts some stricter limits on the granting of so-called “Sneak-and-Peek” warrants, which allow for disclosure of a search to its target to be delayed for long periods. As David Rittgers observed yesterday, these were sold as necessary for terror investigations, but as with some other PATRIOT powers, have ended up being invoked overwhelmingly in ordinary criminal cases. It tweaks the language of a PATRIOT provision designed to allow monitoring of computer hackers to prevent abuse. It narrows the definition of the crime of “material support” for terrorism to make clear that it covers knowing support for criminal activities—as opposed to, say, humanitarian aid. And it ensures that PATRIOT’s definition of “domestic terrorism” can’t be applied to (legitimately illegal but non-terrorist) civil disobedience by political groups.

Either bill would do a great deal to halt the erosion of civil liberties safeguards we’ve seen over the past eight years, and in general these are reforms well crafted to provide oversight and checks against abuse without depriving investigators of tools vital to legitimate national security investigations. The most important items here, however, are the more stringent limitations on National Security letters embodied in the JUSTICE Act, and that legislation’s common-sense limits on the frankly astonishing discretion to authorize surveillance granted the executive branch under the FISA Amendments Act. How those provisions fare will tell us how serious Congress is about protecting civil liberties.

Cyberbullying Bill on the March

Federal prosecutors moved to criminalize internet harassment last year by prosecuting Lori Drew. Lori Drew, as you may recall, is a Missouri woman who created a fictional MySpace profile named “Josh” and started an online relationship with Megan Meier, a teenage girl who may have spread gossip about Drew’s daughter at the local high school. After “Josh” broke up with her, Megan Meier killed herself.

While this is despicable conduct, Missouri prosecutors found that Drew had broken no criminal statute and could not be prosecuted.

Enter Thomas O’Brien, U.S. Attorney for the Central District of California. O’Brien filed charges against Drew based on alleged violations of the Computer Fraud and Abuse Act (CFAA). O’Brien alleged that by violating MySpace’s policy requiring factual information in the user profile and affirming the click-to-agree contract, Lori Drew had committed a crime akin to hacking or unauthorized access of computer data. Because of MySpace’s ties to the Central District of California, Lori Drew was haled into court halfway across the country.

Though the jury convicted Drew and reduced the felony charges to misdemeanors, District Judge George Wu threw out the conviction because the statute would allow the prosecution of nearly anyone on the internet. The decision is available here. The government has since filed a notice of appeal. Orin Kerr notes that the appeal may face additional hurdles – the line of cases that the government used to interpret the statute so broadly has been overturned by the Ninth Circuit.

Several members of Congress have since jumped on the Named Victim Act bandwagon, sponsoring the Megan Meier Cyberbullying Prevention Act. The Act goes far beyond the issue of unauthorized access, criminalizing any rude speech delivered via the internet, cell phone, or text message:

‘(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

‘(b) As used in this section–

‘(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

‘(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages.’.

The scope of this law is breathtaking. Had a rough breakup with your significant other? Engaged in a flame war on a website’s comment section? We’ve got a law against that, you know.

The House Judiciary Committee will be holding a hearing on this law tomorrow. Cato Adjunct Scholar Harvey Silverglate, author of Three Felonies a Day: How the Feds Target the Innocent, will be testifying. Silverglate will also be at a book forum on Thursday at Cato, which can be watched live here.