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MySpace hoax was sick and depraved, but was it a crime?

By Scott Tibbs, November 26, 2008

A California jury began deliberating yesterday whether a cruel MySpace hoax perpetrated by 49-year-old Lori Drew was a criminal offense. Drew worked with her daughter and another girl to create a fictional character they passed off as real to another 13-year-old girl. After the character sent a message to Megan Meier saying "the world would be better off without you", Meier killed herself.

There is no doubt that what Drew did was sick and depraved. It is beyond perverted for a 49-year-old allegedly "adult" woman to play this kind of game with a 13 year old girl and emotionally abuse her. Drew deserves nothing but contempt and scorn from everyone around her. Nonetheless, should she be potentially facing 20 years in prison for creating a fake MySpace profile?

The foundation of the case against Drew is that she illegally accessed computers, but she is not a computer hacker. She did not access another person's account. She did violate the MySpace Terms of Service agreement in setting up a fake profile. Is that a criminal offense, or is it a breach of contract? MySpace certainly has the right to remove a profile in violation of the TOS, but should law enforcement be bringing criminal charges for a TOS violation?

The answer as no. As a person and as a "mother", Drew is beneath contempt. But the dispute should be between her and MySpace, not her and the federal government. I am concerned that the emotionally charged atmosphere surrounding the tragic suicide of a 13-year-old girl will convince the jury to find Drew "guilty". That would be an overzealous application of the law.

My other concern is that this does have implications for free speech. If the federal government can take a Terms of Service violation and make it into a criminal matter with the potential for two decades in prison, what will be the next activity that will be criminalized? How easy will it be for the government to engage in a politically-motivated prosecution of an annoying political opponent based on breach of contract with a website offering a free service? Political discourse on the internet can be at least as nasty as Drew's fake profile, after all.

Again, what we have here is a Terms of Service violation. This is not a homicide case. This is not even a computer hacking case. It is a breach of contract that should be handled by termination of the service by the interactive content provider, not by prison time. Congress needs to revisit cybercrime laws and limit the scope of what is considered a crime so these kinds of prosecutions are prohibited in the future, and if Drew is convicted she should be immediately pardoned.