JOLT Digest

Conviction in Lori Drew MySpace Case Thrown Out

By Vera Ranieri – Edited by Amanda Rice
United States v. Drew, No. CR 08-0582-GW (C.D. Cal. Aug. 28, 2009)
Opinion

On August 28, 2009, Judge Wu of the Central District of California released a written opinion outlining his reasons for granting Lori Drew’s FRCP 29(c) motion for a post-verdict acquittal, a decision he had initially announced in early July. Judge Wu’s decision overturned the jury’s conviction of Lori Drew for violating the Computer Fraud and Abuse Act (“CFAA”) by breaching the MySpace Terms of Service (“ToS”).

Ars Technica and Wired summarize the case. Eric Goldman provides a thoughtful analysis of the case, characterizing it as “a good jurisprudential development” while criticizing its lack of clarity.

The Government claimed that Drew violated MySpace’s ToS when she created a profile under a fictitious persona, contrary to terms that required her to submit only truthful and accurate information. As a result, the jury found her guilty of “accessing a computer involved in interstate or foreign communication without authorization or in excess of authorization to obtain information in violation of Title 18.”

In overturning the misdemeanor conviction, Judge Wu found the CFAA unconstitutionally vague as applied to the facts presented. Judge Wu conducted a thorough analysis of the statutory language, policy implications, and constitutional requirements in reaching his decision. First, Judge Wu examined the language of the CFAA and found that Drew’s actions had potentially violated the CFAA. He found no legislative history indicating that the words of the statute were to be given special meaning to exclude ToS violations, and indeed found that website owners had legitimate reasons to exclude certain activity on their websites through contractual agreements.

However, Judge Wu found that these violations could not be criminal, as to do so would be unconstitutionally vague. He examined the CFAA as applied to determine whether it provided sufficient notice, and whether it set guidelines for law enforcement, as required to render a law not unconstitutionally vague. He found that the law as applied violated both of these tenets.

There were several reasons why Judge Wu found that the law lacked sufficient notice. First, Judge Wu noted that applying the CFAA this case would essentially criminalize breaches of contract. Because a breach of contract is not normally considered criminal on its own, a person would not expect such activity to render her a criminal.  Second, Judge Wu noted that the MySpace ToS contained many terms that were potentially violated daily by MySpace users. Accordingly, he found that the statute was “incredibly overbroad,” failing to give the government any direction on when to prosecute. Third, allowing the website owner to determine when access was “unauthorized” could itself lead to vagueness problems. Many websites, he noted, used terms that were undefined and subject to varying standards. For example, the definition of “unfair content” was unclear and subject to varying interpretations. Finally, he noted the conflicts that arose between terms of the contract under California law and criminalization under CFAA.

Judge Wu also found that the law was unconstitutionally vague due to the lack of guidelines provided to law enforcement officials. He recognized that criminalizing breaches of ToS would render a vast majority of the Internet using population criminals.

The Volokh Conspiracy author Orin Kerr, who helped represented the defense, notes the importance of this case in ensuring civil liberties on the Internet are not curbed. Many civil liberties organizations, including the Electronic Frontier Foundation and the Center for Democracy and Technology, believed that the application CFAA to Drew’s case would have substantially threatened common Internet activities.