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.