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Groklaw Summarizes the Lori Drew Verdict 457

Posted by kdawson
from the unpredictable-and-retroactve dept.
Bootsy Collins writes "Last Wednesday, the Lori Drew 'cyberbullying' case ended in three misdemeanor convictions under the Computer Fraud and Abuse Act, a 1986 US Federal law intended to address illegally accessing computer systems. The interpretation of the act by the Court to cover violations of website terms of service, a circumstance obviously not considered in the law's formulation and passage, may have profound effects on the intersection of the Internet and US law. Referring to an amicus curiae brief filed by online rights organizations and law professors, PJ at Groklaw breaks down the implications of the decision to support her assertion that 'unless this case is overturned, it is time to get off the Internet completely, because it will have become too risky to use a computer.'"
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Groklaw Summarizes the Lori Drew Verdict

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  • by kwabbles (259554) on Sunday November 30, 2008 @07:40PM (#25937661)

    I agree. Get off the Internet. It's too dangerous. Everyone from AOL on - get the hell off.

    • Re: (Score:3, Insightful)

      by KiloByte (825081)

      Everyone from AOL on - get the hell off.

      Replace AOL with "whistleblowers" or any other group... and you'll get the real reason why this case most likely won't be overturned.

  • by FatSean (18753) on Sunday November 30, 2008 @07:44PM (#25937705) Homepage Journal

    She's an asshole, but this is a bullshit conviction and as the article describes....it hurts everybody.

    America is a country of Laws, until butthurt turds scream for revenge. Then fuck the law and rational application of said law...we's gonna get some revenge!

    Bye bye free speech...

    • by QuantumG (50515) * <qg@biodome.org> on Sunday November 30, 2008 @07:48PM (#25937733) Homepage Journal

      Tell me the man and I'll find you the law to imprison him.

    • by ChromeAeonium (1026952) on Sunday November 30, 2008 @07:51PM (#25937755)

      I disagree, when the law is inadequate, it it time to change the law. Would you really want a system where the law never adapted to the modern world? She contributed to someone's death, the fact that she did it over the internet is irrelevant. She had intent to harass, and harassment is illegal, so, all things considered, I think she should be punished for her actions.

      • by FatSean (18753) on Sunday November 30, 2008 @08:00PM (#25937839) Homepage Journal

        Make a new law, call it the Lori Drew law, and have that law make what she did specifically illegal.

        The prosecution twisted the existing laws, which I cannot abide. This conviction should be over-turned.

        That's how our system of law works.

        • by Improv (2467)

          That would work well for future cases, but because laws cannot be retroactive in the United States, it alone would not be sufficient to handle this case.

          Perhaps harassment would be a better line of reasoning to pursue than this.

          • by residieu (577863) on Sunday November 30, 2008 @09:01PM (#25938315)
            Correct. If what she did was not illegal under current laws, she should not be prosecuted for it.
        • I do agree there. As the other person who replied to this said, harassment charges (followed by a new law to explicitly outlaw this brand of harassment) would have been a better way to handle it than getting her on something computer related.

        • Re: (Score:3, Insightful)

          by penguinbrat (711309)

          Agreed, although it would solve nothing that this case is about...

          1) You couldn't prosecute Lori on a law that was not around when she did what she did.

          2) Someone has to pay for the unnecessary suicide of a depressed teenager - considering it is apart of life.

          Who's going to take the rap?

          Not the loving mother who is was frustrated with an emotionally upset teenager not listening to her (go figure), regardless of the fact that the argument with her was the final straw.

          You can't prosecute and entire society, t

      • by Anonymous Coward on Sunday November 30, 2008 @08:04PM (#25937881)

        She was not convicted of harassment. If she had been convicted of harassment, there would be no issue with the decision. But, she was convicted of illegally accessing a computer.

        If you don't have a valid ID that states your real name as ChromeAeonium, you are also 'illegally accessing a computer' and could be in the same boat as Lori Drew.

      • by quanticle (843097) on Sunday November 30, 2008 @08:25PM (#25938047) Homepage

        Is the law inadequate in this case? I don't think so. While what Lori Drew did was despicable and wrong, I don't believe it is right to make all despicable and wrong things illegal. Laws should arbitrate instances where one person violates the rights of another. Nothing in this case shows how Lori Drew violated Megan Meier's rights.

      • I disagree, when the law is inadequate, it it time to change the law.

        I agree with you. But your disagreement isn't with what the parent said.

        Of course laws should be changed as the context of their application changes around them.

        What shouldn't happen is judges twisting existing laws to punish people who did something morally wrong but legal. That's what the parent says.

        If what Drew did was illegal under some reasonable interpretation of the law, the use the law she violated to punish her. Harassment law seems like a good place to start. If what Drew did was not illegal

      • Re: (Score:3, Informative)

        by Jesus_666 (702802)

        She contributed to someone's death, the fact that she did it over the internet is irrelevant.

        But (if I read TFA correctly) she was acquitted from contributing to someone's death; the federal crime she's getting nailed with is entirely about doing things on the internet.

    • by Hatta (162192)

      America is a country of Laws

      You don't really believe that, do you?

    • Re: (Score:3, Insightful)

      by fermion (181285)
      The asshole defense does not always apply. Sometimes, in the words of TAWP, the assholes goes too far and we need a dick to fuck them up. Sure it is not ideal, and can set unfair precedents, but there you are. The world is neither perfect or fair.

      As far as free speech goes, it is not clear it applies. Facebook may be private property, but even if it is a commons, like a shopping mall, free speech still has limits. Do we not deny people the right of free speech in the mall to ask the patron passing by

  • by QuantumG (50515) * <qg@biodome.org> on Sunday November 30, 2008 @07:46PM (#25937709) Homepage Journal

    I'm all for the rule of law making it so the weak and the strong have equal standing in society.. but crying to the courts because someone called your daughter a name and she killed herself is just bullshit. It's just like all this sensitivity shit in the workplace and the restrictions on speech at colleges now. Grow a spine.

    • Grow a spine.

      {sigh} We Americans have them surgically removed in childhood, mainly because our parents had theirs removed, and their parents before them. The more people have something to lose, the less they're likely to defend their civil liberties. Doing so requires courage and the acceptance of risk ... and we're pretty damn risk-averse nowadays.

    • by ChromeAeonium (1026952) on Sunday November 30, 2008 @08:05PM (#25937885)

      I don't entirely disagree, but this was more than a calling someone a name. This was a long and thought out harassment on a minor that resulted in the minor's death. Bit of a difference.

  • WTF (Score:5, Insightful)

    by Anonymous Coward on Sunday November 30, 2008 @07:49PM (#25937743)

    A 49yo woman subjects a 13yo neighbor to humiliation and emotional torment. Why wasn't this prosecuted as a case of felony child abuse?

    • Re:WTF (Score:4, Informative)

      by quanticle (843097) on Sunday November 30, 2008 @08:27PM (#25938069) Homepage

      For child abuse charges to apply, the adult has to be in direct contact with the child. I'm not too sure on the specifics, but it doesn't sound like Lori Drew ever really came into direct contact with Megan Meier. It seems that all of their interaction was over the Internet.

  • by thermian (1267986) on Sunday November 30, 2008 @07:49PM (#25937745)

    I value PJs contributions to the open source movement, in terms of her legal coverage, but she does have a tendency to go off the deep end sometimes, and I think this is one of those occasions.

    The internet has no privacy whatsoever, everything you do can be tracked. This has been true since day one when they turned on ArpaNet, and it will continue to be true. Even if you encrypt your traffic, it can't hide heavy usage, and you cannot hide from your ISP when you are online any more then you can hide making a phonecall from your telecom provider.

    People need to realise this and move on. I realise it, and I can cope, but then I never was inclined to tinhattery.

    • by Kjella (173770) on Sunday November 30, 2008 @08:11PM (#25937931) Homepage

      The internet has no privacy whatsoever, everything you do can be tracked. This has been true since day one when they turned on ArpaNet, and it will continue to be true.

      To hear that from someone on slashdot just makes me laugh. There's a million ways to be anonymous from open WiFi (even the retards should have that one figured out) to misconfigured proxies, mixmaster networks, freenet, TOR, JAP and a host of other possibilities for anyone that wants real anonymity.

      Even if you encrypt your traffic, it can't hide heavy usage, and you cannot hide from your ISP when you are online any more then you can hide making a phonecall from your telecom provider.

      Between my encrypted bittorrent connections which run 24/7, they certainly couldn't by volume alone and all it'd take would be a way to piggy-back over a similar connection to run normal internet services.

      Of course, it won't do you any good when you got your whole life on a semi-public blog/facebook/myspace page anyway, but that's not a technical problem...

      • Re: (Score:3, Interesting)

        by tsm_sf (545316)
        To hear that from someone on slashdot just makes me laugh.

        It's been more of a social/news site ever since they added the politics section. I think the definition of 'nerd' has expanded somewhat as well... you certainly don't see as many tech savvy folks here as you used to.
      • by Bill, Shooter of Bul (629286) on Sunday November 30, 2008 @09:47PM (#25938727) Journal
        Given enough time and money, I'd say anyone can be tracked. And the techniques you mentioned will certainly raise the amount of time and money required. I don't think any combination of techniques make it impossible. Even encrypting your data stream is not a guarantee that some one hasn't already broken the algorithm, or has access to the keys used, or the source or destination computer being used.

        Security isn't magic fairy dust you sprinkle on your computer.
      • Re: (Score:3, Insightful)

        by Raenex (947668)

        There's a million ways to be anonymous from open WiFi (even the retards should have that one figured out) to misconfigured proxies, mixmaster networks, freenet, TOR, JAP and a host of other possibilities for anyone that wants real anonymity.

        It's funny that you mention JAP. Do you know that it was compromised [securityfocus.com] by law enforcement in 2003? And how about the poor sap that got busted for breaking into Palin's email. He used a proxy that stated [ctunnel.com]: "Because government subpenoa could require us to hand over our server access logs, access logs are regularly deleted to protect your privacy. In short, we value your browsing experience as well as your anonymity, and would not do anything to break your trust in us."

        This guy gladly handed over the logs to t

      • Re: (Score:3, Insightful)

        See, you already made one mistake there. Tor does not give you anonymity - only plausible deniability. By the way, did you miss the news story where CIA and German police run their own Tor honeypots to track connections? Freenet, well, it's a network on top of Internet, a big difference there. It's also too slow to be usable in practice. Proxies usually have logs, even if misconfigured. And so on. Don't worry, as soon as they can get a child porn charge against you, they will find you.

        By the way, when "anon

  • Two things. (Score:4, Insightful)

    by jskline (301574) on Sunday November 30, 2008 @07:50PM (#25937747) Homepage

    First off; you know damned well and good that this will be overturned on appeal. It can't be allowed to stand because the interpretation is skewed to begin with. Secondly; This article reads as a scare tactic to shut down the Internet. Come on; get real.

    This lady is bad. But there are way to many others of like kind out there and to tie this all together like that is just crappy thinking and reasoning. The kid did have emotional issues that were an underlying complicit part of this formula. Now lets all come back to earth.

  • by marhar (66825) on Sunday November 30, 2008 @07:59PM (#25937831) Homepage

    Orin Kerr, one of Lori Drew's attorneys, is a regular blogger at the libertarian legal blog The Volokh Conspiracy.

    http://volokh.com/ [volokh.com]

    He has a summary here:

    "What does the Lori Drew Verdict Mean?"
    http://volokh.com/archives/archive_2008_11_23-2008_11_29.shtml#1227728513 [volokh.com]

    and has updated the blog's terms of use:

    Any accessing the Volokh Conspiracy in a way that violates these terms is unauthorized, and according to the Justice Department is a federal crime that can lead to your arrest and imprisonment for up to one year for every visit to the blog.

    http://volokh.com/archives/archive_2008_11_23-2008_11_29.shtml#1227896387 [volokh.com]

  • by redelm (54142) on Sunday November 30, 2008 @08:00PM (#25937837) Homepage
    As much as I respect her other writing, PJ needs a chill-pill. Hasn't she ever head "Bad facts make bad law?" The tormerntors' behaviour was egregious and they ought to have been charged with "assisting suicide" if such a charge was available in CA.

    As for serverco retroactively ruling conduct "unauthorized", there's a panoply of affirmative defenses such as invitation, habitual tolerence, failure to notify, discriminatory enforcement. Cyberbullying wouldn't have those available.

    • by QuantumG (50515) *

      So long as we're talking about fictional laws, I think "inciting suicide" would be the appropriate charge. In many states it is illegal to commit suicide, so inciting someone to do it is "inciting to commit a crime". Of course, these states are fucked and neither commit suicide, nor inciting someone to commit suicide, should be a crime (IMHO).

    • by riceboy50 (631755)

      ought to have been charged with "assisting suicide"

      Uh, what? Any laws against assisting suicide refer to facilitating the act (i.e. Dr. Kevorkian [wikipedia.org]). Harassment, which the only thing this woman is guilty of, is illegal. Bending laws to try to "nail" her with something bigger is the whole problem we're discussing.

      • by redelm (54142)
        Where is "assisting suicide" confined only to direct, physical assistance? Granted such assistance is obvious and intent easy to prove. But presuming the burdens of actions and intent can be proven why would other things not be "assistance"?

        If you tell me you want to commit suicide and ask where you can buy rope, and I not assisting suicide if I answer you? If you don't say why, then of course I have no proveable intent.

        This isn't a question of overcharging, but rather making sure the guilty are punish

    • by ameyer17 (935373)

      if such a charge was available in CA.

      Except the tormenting and suicide occurred in Missouri.
      Speaking of that, yet another reason why this case is bullshit. You shouldn't be dragged to a federal court 2000 miles from where you live over a crime that occurred in your home.

      • by ameyer17 (935373)

        Of course, that'd be assuming a crime was committed. Since they had to stretch the law so badly just to charge her with something, I'm not convinced an actual crime occurred.

    • Re: (Score:3, Insightful)

      by julesh (229690)

      As for serverco retroactively ruling conduct "unauthorized", there's a panoply of affirmative defenses such as invitation, habitual tolerence, failure to notify, discriminatory enforcement. Cyberbullying wouldn't have those available.

      The crime Lori Drew was convicted of was "unauthorized access to a computer system to access information". Nothing about cyberbullying. (She was also charged with "intent to inflict emotional distress" but was acquitted by the jury).

      The terms of service she broke were the one

  • "PJ at Groklaw breaks down the implications of the decision to support her assertion that 'unless this case is overturned, it is time to get off the Internet completely, because it will have become too risky to use a computer ." [emphasis added]

    That has been true for Windows users for as long as I can recall, albeit for different reasons :-)

  • and dangerous to all, I closed with "Lovely, whats next. If crap like this succeeds it opens everyone up to any fishing expedition law enforcement cares to make"

    That is exactly what we have. A new way for GOVERNMENT to punish someone who a GOVERNMENT employee doesn't like or thinks something was wrong even if nothing is legally wrong.

    Basically it lets them write the laws to prosecute on demand. The problem is that with every organization there are a lot of spiteful people around and this gives them too mu

  • by Eskarel (565631) on Sunday November 30, 2008 @08:09PM (#25937909)
    without question.

    Unfortunately, the thing she's guilty of wasn't actually illegal when she did it. It was immoral, indefensible, and even if she gets off on these charges(which she probably will) she's going to be punished for the rest of her life and she deserves it.

    She, as an adult who should have known better, created a false identity to harrass a minor, and that minor commited suicide, at least partially as a result. She set out to hurt that little girl, and the fact that this kid was mentally ill does not excuse that.

    As in all cases like this, the government had to show both the victim's family and society at large that they'd go after this sort of thing. The case will probably be overturned because the case they could put together was pretty tenuous(because there wasn't a crime for what she did), but they've shown people that they're serious about this shit.

    The crime they've charged her with may not be the one she's guilty of, but she's still guilty, and she deserves everything that's coming to her and more. She's an adult, she should have known better.
    • by riceboy50 (631755)
      I'm afraid for the future if many people think like you. Having the government start prosecuting people for arbitrary charges just because you've done something that is socially unacceptable sends chills down my spine.
      • I'm afraid for the future if many people think like you. Having the government start prosecuting people for arbitrary charges just because you've done something that is socially unacceptable sends chills down my spine.

        Kinda brings back thoughts of the Salem Witch Trials, doesn't it?

    • by BoneFlower (107640) <george.worrollNO@SPAMgmail.com> on Sunday November 30, 2008 @10:49PM (#25939197) Journal

      Does she deserve the punishment headed her way?

      Yes, I believe she does.

      But if the law does not recognize the act as a crime, then they should not be punished under the law.

      Those who would pursue charges against her have two real options.

      The first option, and the ideal one, is to find a law that more clearly criminalizes her conduct.

      The second option would be to push for new laws to be made to cover future offenders. While this would leave Lori Drew unpunished, that is a necesary price for a nation where the rule of law is applied fairly and impartially. It may also be appropriate to pursue this along with option 1, to strengthen the applicable laws that did exist.

      Stretching the law they used this far sets a dangerous precedent and spits in the face of the rule of law.

  • ignorance of law leads to the interpretation that the lori drew case has far reaching implications. hysteria leads to the rest

    and frankly, slashhordes, if this case is your waterloo, then you don't deserve any online rights, because this case, in its proper context that anyone with the faintest understanding of law understands, has absolutely nothing to do with your online rights

    you defend your rights from genuine threats to it. only ignorance, stupidity, and hysteria considers the lori drew case a threat t

  • PJ and groklaw have done a lot of good, but somethimes she just doesn't "get it", and goes off the deep end. This is one of those times

    FTFA:

    If it respects this decision, I don't feel safe there. I didn't even want to visit its web site to try to find its terms of use. But according to this article, MySpace gets to be the one that decides if we've violated their terms:

    MySpace users agree that the social networking site has the final say on deciding whether content posted by users violates a long list of regulations contained in the agreement.

    There is no recourse. They make the law and if you mess up, you go to jail.

    Since when doe web sites have the authority to jail anyone?

    They can, like anyone else, decide whether you've violated their TOS. If they decide you have, then they either cancel your account or, if you've been doing something blatantly illegal, they can bring it to the attention of the fuzz. Same as YOU are the final authority to decide whether someone has violated YOUR rights - if you believe so, you can't send them to jail - but you CAN make a complaint to the police.

    Like the whole "we must move to GPLv3 or we are doomed!" and "Novell is bad today because they made a deal with Microsoft over linux patents" when they didn't. (And don't bring up mono - nobody gives a f*ck about mono).

    • by demeteloaf (865003) on Sunday November 30, 2008 @09:37PM (#25938621)

      They can, like anyone else, decide whether you've violated their TOS. If they decide you have, then they either cancel your account or, if you've been doing something blatantly illegal, they can bring it to the attention of the fuzz.

      That's the thing. This ruling says that violating the ToS on a website is in itself a federal crime.

      The idea is that there is a law saying that "unauthorized access to a computer" is considered hacking and is federal crime. Because Lori Drew violated the Terms of Service, her access to myspace's servers were unauthorized, therefore, she gets convicted of computer hacking.

      That's the only thing she was actually convicted of: Violating Myspace's Terms of Service. As various articles have pointed out, treating a terms of service violation as a federal offense is absurd. If someone under 18 does a google search (google's ToS says you need to be 18), do they deserve to spend a year in jail? According to this ruling, they violated the Terms of Service, and that alone is computer abuse, and they're guilty.

    • Web sites and their owners can't jail anyone directly. But this ruling provides a way to turn TOS violations into criminal offenses, given nothing else but a police department willing to charge you and a jury willing to convict. Do something unpopular but otherwise legal and you could be targeted.

      I'm sure Lori Drew could be charged and convicted with something related to what she actually did wrong. Maybe not -- and if not, then she ought to go free...

      There are plenty of loopholes that authorities could

  • Tragic (Score:3, Insightful)

    by Renraku (518261) on Sunday November 30, 2008 @09:41PM (#25938669) Homepage

    First, I think the girl was emotionally/mentally unstable to begin with. Most teenagers have emotional problems they have to work out, some more so than others.

    Second, I think the people who's actions resulted in the suicide of the girl need to be punished..which is happening.

    Depression is a REAL disease, and it isn't just being sad. Its where your entire worldview is skewed towards the negative. Like if your friend had to cancel some plans you had made, you might think that it was your fault or maybe they just didn't want to be around you. People think that its just being sad, but being sad is more like a number on a -10 to +10 chart of emotion, whereas depression would be like a chart of -20 to +5.

    You can bet that if some people asked a retarded person to do something dangerous that resulted in the retarded person being injured or killed, people would be all over that one. They weren't in the mental capacity to see the consequences, just like the girl in this story wasn't in the emotional capacity to deal with the assholes that did this to her.

    Had it been a boy really breaking up with her, no charges would have been pressed. But since the motive (revenge/humiliation) was established and intent to harm was also established, its time for them to pay the piper.

  • This is perfect. (Score:3, Interesting)

    by dreemernj (859414) on Sunday November 30, 2008 @10:08PM (#25938895) Homepage Journal
    I'm changing the TOS for my sites to include "You must donaite $5 to view this site."  If they don't, BAM, federal crime!
  • by Stormie (708) on Monday December 01, 2008 @01:01AM (#25940019) Homepage

    Look, the fact is, if The Man wants to get you, The Man will get you. It doesn't matter what the laws are, exactly - they'll find something to hit you with.

    That was true before the Lori Drew trial, and it's true now. The precedents set by this case in no way make being on the internet one bit more "risky". If you don't do anything to bring down the wrath of The Man, you'll be fine. And if you do, you're screwed, online or off.

  • by RobertinXinyang (1001181) on Monday December 01, 2008 @01:35AM (#25940163)

    "Do you actually want a world like that? In some ways, it's worse than lawlessness, worse than the old Wild West. Why worse? Because in the West in the old days, might made "right". That's clear enough, and you knew where you stood. Practice shooting, or move East where there were laws."

    The reality was far different than the popular fiction. Studies have shown that a person was more likely to be killed in a criminal encounter in the large Eastern Cites than it the territories of the 'old west.' I understand that the analogy he was trying to make was based on the 'old west' of fiction and lore. However, the facts do not support the fiction.

  • by jandersen (462034) on Monday December 01, 2008 @09:14AM (#25942721)

    Yes, I know, the title is not fair to most Americans - it is meant as a provocation, of course.

    But sadly it isn't far off the mark when it comes to the kind of responses I see on /. that are modded +5 "Insightful" or "Interesting". They seem to range from the dowright disgusting "Who fscking cares about some 13year old brat killing herself" to the rather lame "Lori Drew did something wrong, but 'free speech' is much more important" - and that is at the kind and warm-hearted end of the spectrum.

    Freedom is important, oh yes. It is also mostly fictitious, at least in the absolute, quasi-religious sense people on /. seem to think. Everything, from quantum-mechanics up, should tell you that there is no such thing as complete, perfect indepedence; the only real freedom is sufficient freedom to live a worthy and fulfilling life at peace with your neighbors. With freedom comes responsibility, because with action comes consequences.

    One can but wonder how it came to that in America, it is certainly not the prevailing viewpoint in the parts of Europe I know of. This is where people usually start pointing to History and Founding Fathers, but I just can't see what that has to do with anything; the freedom of speech should be seen in light of that time, as a reaction to specific oppression of political and religious dissent, and it is clear that it is about the right to practise your faith and express your political views; both of which make a lot of sense. But this idea about "freedom to do and say anything at all with no restrictions or consequences" is simply nonsense - to me it seems to have arisen in the 60es, a time when we also saw some talk about psychopathy as an ideal for mankind, exactly because psychopaths are so void of the moral inhibitions of normal society. Go and look it up if you don't believe me.

    Far be it from me to dictate what Americans should think or believe, but before people start idolising what can in many ways be regarded as "the essence of evil", they would be well adviced to at least have thought it through.

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