MySpace and the law
I’m sure you’ve all heard about the shocking case of Megan Meier, the poor 13 year old American teenager driven to commit suicide. If you’ve been living on Pluto (demoted as it is) and missed hearing about this tragedy, go here. But to give this post some context, we’ll need some background details.
Megan was cyberbullied, taunted, inflicted with emotional distress (take your pick of any of these) by a non-existent 16 year old boy named “Josh Evans”. A phony MySpace page was set up by the mother (yes, mother) of one of Megan’s friends. This woman’s name is Lori Drew and apparently Megan had a falling-out with Drew’s daughter. Megan suffered from depression and ADD. Allegedly, Drew used the MySpace account to initially have “Josh” flirt with Megan. But the messages took a nasty turn with “Josh” suggesting he didn’t wish to be her friend anymore. The last message Megan allegedly received was “the world would be a better place without you”. Shortly after this, Megan was found dead in her bedroom, having taken her own life.
Now, I refrained at the time from blogging about this because I would have been up for defamation. What on earth is a 49 year old woman thinking by creating a phony MySpace account for the specific purpose of taunting and messing with the head of a poor innocent 13 year old girl?? Frankly, the law book should be thrown at her and she should be locked up with the key thrown away.
And it seems this might be happening because the law has found a way to pin Drew to the wall. I’m not sorry about this at all; but I am a bit worried about the precedent being set. When police traced the MySpace account back to Drew, she and her daughter laughed it all off by saying it was a “joke”. Clearly, Drew was involved in cyberbullying but, under the law, she had committed no crime. A community and nationwide backlash in the US I reckon put pressure on the FBI (who investigated the “hoax” for over a year) and authorities to find some way to get Drew legally.
But how they’ve done this has me worried. For the lawyers amongst us, here is the indictment. As a lawyer, what Federal prosecutors have come up with I find extremely imaginative. As I understand it, Drew lives in Missouri and there are no Federal laws in the US to get her on a charge of cyberbaiting. But MySpace is owned by Fox Interactive Media and its servers are based in California. Because Drew created, used and monitored a MySpace account that required a prospective member to sign up with a profile, this person had to comply with the Terms of Service (TOS) outlined by MySpace/Fox Media Interactive. Clause 12 (a) of the indictment is where they start to pin Drew down:
“12. Among other things, the MySpace TOS required prospective members, members and users of the website to:
a. Provide truthful and accurate registration information;
b. Refrain from using any information obtained from MySpace services to harass, abuse or harm other people”.
Clause 14 of the indictment outlines a charge of conspiracy in that Drew (and her co-conspirators) allegedly knowingly and intentionally accessed a computer used in interstate and foreign commerce (ie a social network) without authorisation and obtained information from the MySpace computers “to further a tortuous act, namely, intentional infliction of emotional distress”. So not only was fraud committed across State boundaries but so was cyberbullying.
So essentially, California prosecutors are charging Drew with criminal trespass of the MySpace social network, computers and servers because, it is alleged, she knowingly created a false MySpace account and therefore violated the TOS or contract. I’m not sure if they are likening this to hacking as well. But this indictment is probably setting out a dangerous legal path I don’t think we would want to go down. Basically, what’s being said is this – if you knowingly create an account under a false name on any website, you are violating the TOS and you’re toast. If that’s right: then I’m burnt toast already!!
Relying on TOS to create a legal precedent to address cyberbullying is stretching the law too far IMHO. It’s also an attack on privacy surely – should we wish to participate in a social network under a different name to protect anonymity, we should have that freedom. I don’t particularly wish to have my real details like DOB, address and so on sitting on numerous servers waiting for hackers to come along and steal my identity.
From what I can tell, Federal prosecutors are using decades old legislation – Computer Fraud and Abuse Act, 18 U.S.C. 1030. One real weakness I can see (apart from using this legislation to make all of us into criminals when we violate TOS on websites) is that the prosecution must show that Drew intentionally violated the TOS. How on earth are they going to show that? How will they show that she read the TOS let alone intentionally violated it? Sure, the TOS is on the MySpace site, so I guess the prosecution will attempt to argue that the TOS was posted and if Drew clicked Agree, she intentionally violated. But I think this is a weak legal argument because the legislation requires “intent”.
And I’m confused over the clause about obtaining information for the purposes of a tortuous act. Seems to me that Drew and her co-conspirators were trying to harass and upset a poor 13 year-old girl, rather than purposely obtain information.
And I don’t understand why Megan’s family didn’t try to get Drew under tort law or why authorities didn’t charge Drew with sexual harassment of a minor (since many of the messages were apparently sexual in nature).
Okay, I’m not a lawyer trained in US law, so if any ThinkingShift reader has further information, leave a comment. I’ll be keeping a close eye on this because if it becomes legal precedent then here’s what happens:
* if you’ve ever used an alias or false birth date when joining a social network or website, you’re toast, a criminal;
* even if you’ve done this with the intention of avoiding being a victim of identity fraud (ie innocent reason) you’re toast, a criminal;
* can all MySpace users or Facebook users truthfully say they have not twigged their information a bit or posted a false profile? If you’ve given any false information to a website, you’re toast, a criminal.
Source: New York Times