Intellectual Property Law

Last week's misdemeanor convictions against Lori Drew in the MySpace suicide case have led to a multitude of pundits worrying over the dire consequences the verdict might pose for internet users.

"I don't think it's overstating it a bit to say 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," writes Groklaw's Pamela Jones. "At a minimum, I'd feel I'd need to avoid signing up for membership at any website, particularly MySpace."

So just how worrisome is the verdict, and can it survive an appeal?

Drew was convicted of violating the Computer Fraud and Abuse Act, the federal anti-hacking law. Under the prosecutor's novel interpretation of the CFAA, endorsed by the jury,  Drew obtained unauthorized access to MySpace's computers by violating the site's terms of service, even though Drew never read those terms. In particular, the jury concluded that Drew's accomplices supplied false information to MySpace by establishing an account for a nonexistent 16-year-old boy.

Critics fear that the verdict means that any computer user who violates a service provider's terms of service could now face criminal prosecution for what in the past would have been, at worst, a civil breach of contract.

"Most individuals who use the internet violate terms of service," says Orin Kerr, a former federal prosecutor who joined Drew's defense team pro bono, "and the government's theory is that ? at its discretion ? it can bring prosecution ... for any terms-of-service violation."

That means someone who, for example, violated Match.com's terms of service prohibiting married people from searching for extramarital partners through its site, could conceivably be prosecuted for a misdemeanor if the Lori Drew verdict stands ? though prosecutors are not likely to bring a case against such a person unless there were aggravating circumstances.

But Kerr thinks there is little chance the 9th U.S. Circuit Court of Appeals will uphold the verdict on appeal, because it's so plainly in conflict with what Congress intended in passing the anti-hacking law 20 years ago.

"The government's theory is such a stretch," he says. "The law is on our side, and I would expect a court of appeals to recognize that. ...  If the court of appeals overturns this and rules that terms-of-service violations are not a crime, then you don't have to worry about [being prosecuted] anymore."

It's possible that the case might never reach appeal. Judge George Wu, who presided over the case in the U.S. District Court in Los Angeles, is still entertaining a motion for a directed acquittal, which was filed by Drew's defense attorney H. Dean Steward after the prosecution rested its case more than a week ago.

Steward asked Wu for a judgment of acquittal based on the defense's view that the prosecution failed to prove that Drew knew the MySpace terms of service existed, and that she knew what they said and intentionally violated them. Wu decided to postpone ruling on the motion ? perhaps to see if the jurors would acquit Drew on their own ? and still has not ruled on it. The defense says prosecutors could not appeal a judgment of acquittal.

But if Wu decides to let the verdict stand, Kerr says he and Steward will appeal the case to the 9th U.S. Circuit Court of Appeals, which covers the western United States.

Eugene Volokh, a professor at the law school at the University of California at Los Angeles, who blogs with Kerr at the Volokh Conspiracy, says Wu might not be inclined to upset the jury verdict, particularly given that it's built on the factual finding that Drew was aware that the fake MySpace profile violated the site's the terms of service.

"It's hard to set aside jury verdicts on factual questions such as that," he says, adding that the judge also denied a pretrial motion to dismiss the case.

"The earlier decision to allow this [case] to go forth ... exerts some sort of psychological pressure to stick with that decision," Volokh continues. "I think many judges are reluctant to say that this whole trial and this whole effort of the jury and burden on the lawyers was in vain."

But Volokh, a former clerk for Judge Alex Kozinski, a 9th Circuit judge, agrees with Kerr that on appeal, "the 9th Circuit will ultimately reject the prosecution's position."

"It's strikingly broad and can't possibly be what Congress intended with the statute and what the statute is properly interpreted as meaning," he told Threat Level. "To say that whenever you breach the contract you therefore become an unauthorized user of the system and are therefore a felon, that can't possibly be right. I think the court of appeals will correctly conclude that the government's theory is legally unsound, and the statute ought not to be interpreted this way."

Image: Lori Drew leaves federal court during a lunch break Tuesday, Nov. 25, 2008,
in Los Angeles. Nick Ut/AP

See also:

• Dead Teen's Mother: Misdemeanor Convictions a 'Stepping Stone' in Cyberbullying Case
• Lori Drew Not Guilty of Felonies in Landmark Cyberbullying Trial
• Lori Drew Jury Nears Verdict on Three Charges, Struggles With Fourth
• Prosecution: Lori Drew Schemed to Humiliate Teen Girl
• Judge Considers Throwing Out Lori Drew Case
• Lori Drew's Daughter 'Devastated' by Friend's Suicide but Doesn't Feel Responsible
• Government's Star Witness Stumbles: MySpace Hoax Was Her Idea, Not Drew's
• Dead Teen's Mother Testifies about Daughter's Vulnerability in MySpace Suicide Case
• Prosecutor: Lori Drew Intended to 'Prey' on Girl's Psyche
• Defense Says Jury Pool Filled with 'Viciousness' Towards Lori Drew
• Jury Selection Begins in MySpace Suicide Trial
• Former Justice Dept. Prosecutor Joins Defense in MySpace Suicide Case
• Experts Say MySpace Suicide Indictment Sets 'Scary' Legal Precedent
• Lori Drew Indicted in MySpace Suicide Case
• Indictment Expected This Morning in Megan Meier Cyberbullying Case ? Updated
• Teen Involved in MySpace Suicide Hoax Says Adult Also Participated
• Megan Meier Suicide Stokes the Internet Fury Machine
• Blog Readers Out Anonymous Adults that Newspaper Refused to Identify