I'LL Take My Chances With Prosecutorial Discretion This Time

Nonsense from Farhad Manjoo of Salon on the MySpace Mom indictment:

The MySpace mom's prosecution threatens us all

No, it threatens any adult who creates a national sensation by cyber-stalking an emotionally troubled 13 year old and driving her to suicide. 

After walking us through the legal background, Mr. Manjoo wanders off the legal reservation:

There are no laws against cyberbullying, as Wired.com's excellent Kim Zetter explains. Drew's specific crime, according to prosecutors, stems from her alleged violation of MySpace's "terms of service" -- a lengthy legal document by which you implicitly agree to abide when you're using the site.

MySpace's contract sets down a big list of MySpace no-nos, among them:

impersonating or attempting to impersonate another Member, person or entity;

using any information obtained from the MySpace Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;

using any information obtained from the MySpace Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;

Normally breaking these rules would result only in a breach of a civil contract with MySpace -- and, thus, no major punishment.

Here's where the law-stretching occurs: In breaking the contract with MySpace, prosecutors say Drew is criminally responsible. She can go to jail, in other words, for failing to heed the legal terms of a Web site she clicked on.

Not so, as the indictment makes clear - the legal theory is that Drew broke the MySpace rules in order to further a conspiracy to commit a separate civil offense, to wit, the intentional infliction of emotional distress.  That is two civil violations, not one.  [See UPDATE - Manjoo is wrong, but I am not right.]

Now, I am not going to contradict the experts who say that this application of the underlying law regulating computer use and abuse is novel, a stretch, and so on.  However, contra Manjoo, mere violation of the MySpace terms of service, or any other firms terms of service, would not create the grounds for prosecution under this theory - a perpetrator would have to violate a relevant TOS *and* then commit some separate tortious act.  Hence, overheated rhetoric such as this from Manjoo is nonsense:

This is very bad law. Nearly every site on the planet includes a lengthy terms page, many of them with terribly vague, over-broad proscriptions of the sort lawyers are very fond.

If prosecutors were given wide freedoms to charge folks who violated such things, there wouldn't be enough jails on the planet to house us hoodlums.

MySpace's TOS, for instance, also prohibits posting material that "constitutes or promotes information that you know is false or misleading." How many gossipy teenagers would be hauled into the pokey on that count alone?

Or, this: MySpace says that "band, comedy, filmmaker and other profiles" can't post stuff that "uses sexually suggestive imagery or any other unfair, misleading or deceptive Content intended to draw traffic to the profile."

Posting sexually suggestive imagery on MySpace is a crime? Mariah Carey's lawyers should let her know!

Until Manjoo expands those examples to explain the second civil violation (and I could get behind the idea that Mariah Carey's performances are a breach of something or other), he has nothing.  For example, knowingly posting gossipy but false information without any intention of inflicting emotional harm would be actionable how?  Answer - it wouldn't be.  As a practical matter, citizens should be as worried about Manjoo's faux prosecutions as they are worried about being busted for speeding at 60 in a 55 MPH zone.

So.  Do two civil violations normally sum to one criminal charge?  Who knows?  I can see this case eventually being tossed, but if the woman has to spend years and mega-bucks fighting it, well, boo-hoo.

I am troubled by the venue, however - all the activity occurred in Missouri, but Los Angeles got involved because of the physical location of the MySpace servers.  Since an important (and normally utterly un-American) goal here is to punish the accused prior to conviction, I suggest a change in venue - to Anchorage.

IN A CALMER MOMENT:  "A Man For All Seasons", about the tussle between Thomas More and some Brit king or other, was brilliant on the importance of upholding the law even when the outcome was undesirable.  I'll take two:

---

Margaret More: Father, that man's bad.
Sir Thomas More: There's no law against that.
William Roper: There is: God's law.
Sir Thomas More: Then God can arrest him.

---

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Thomas More was a Great American, or could have been.  But his wisdom notwithstanding, some slippery slopes are worth standing on - I'll take my chances with this prosecutor on this case.

MORE:  Orin Kerr opines:

This case involves a terrible tragedy; I think what Lori Drew did is truly despicable. But the government's legal theory, based entirely on the Computer Fraud and Abuse Act, 18 U.S.C. 1030, is very weak. Legally speaking, the prosecution is a real stretch. In my view, the courts should dismiss the indictment.  In this post, I'll explain why.

UPDATE:  Based on legal advice from Walter I see my error - For current purposes the statute can be broadly divided into sections (a), (b), and (c).  Section (a) specifies a range of bad acts which result in a criminal penalty; the very short section (b) criminalizes the attempt to commit acts specified in (a); and section (c) specifies penalties.  In section (c), a violation of (a) or (b) with the commission of a tortious act is a felony; under other scenarios, the violation may be only a misdemeanor. 

However, the logic of the statute requires an independent violation of (a) or (b).  The prosecutor satisifies that by arguing that the defendant did two things - violated the MySpace Terms of Service *and* then obtained information across state lines.

So some of the examples of TOS violations offered by Manjoo would not be covered - I daresay Mariah Carey can post all the racy photos she wants without being charged with accessing information, and I suspect a person could post whatever gossipy news was rattling around inside their head, as long as they don't seek info from others.

However, one might argue that anyone using a GMail account that violates the Google TOS and then engaging in otherwise-harmless correspondence with others is accessing information without authorization, thereby exposing themselves to a misdemeanor charge.  (To elevate that to a felony charge, the email correspondence would have to be used in a way that led to a tortious act.)  It's impossible to believe that the intent of this law was to criminalize that sort of common and harrmless behavior.  That said, I find it almost impossible to believe that an otherwise upstanding citizen would be prosecuted on that basis.  On the other hand, who knew that RICO would be applied to securities firms, until it was?

Comments

[bgates]

Was there some intermediate stage between the three years of Libby and Duke posts and this one?

Prosecutorial Discretion: Good When I Like the Result!

[clarice]

I am not big on creative criminal law but gosh this defendant is one odious bitch.

[Abadman]

All the more reason not to jimmy with the law, if being an ass or bitch is all it takes, we are all in trouble. Although I agree with you on the "odious bitch" part.

[Walter]

There is a civil lawsuit on the way. The lawsuit will undoubtably leave the evil woman destitute for the rest of her life--judgements rendered for intentional torts being non-dischargable in bankruptcy. The parents have been waiting on the hope that someone, somewhere would prosecute the witch.

The local cops investigated. The local prosecutors declined.

The FBI investigated. Our dear US Attorney, Catherine Hanaway, a suburban mother herself, felt that civil liability and the social punishment they are currently receiving from friends and neighbors sufficed.

A publicity-hungry USA in LA (but I repeat myself) decided to stretch the law for a good cause.

That aside, you've got a bit of a factual error above. The statute in question, 18 U.S.C. 1030, criminalizes acessing a computer beyond authorized uses to get information. The harrassment bit is added on to get a mandatory minimum.

Volokh, from whom I've shamelessly stolen, has much more (& better written as well).

[Walter]

The indictment charges a violation of 1030(a)(2):

Whoever ...
(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains—
(A) information contained in a financial record of a financial institution, or of a card issuer as defined in section 1602 (n) of title 15, or contained in a file of a consumer reporting agency on a consumer, as such terms are defined in the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.);
(B) information from any department or agency of the United States; or
(C) information from any protected computer if the conduct involved an interstate or foreign communication;

The punishment provisions related to that are in 1030(c)(2). The intentional infliction of emotional distress moves the sentencing from (A) to (B):

(2)
(A) except as provided in subparagraph (B), a fine under this title or imprisonment for not more than one year, or both, in the case of an offense under subsection (a)(2), (a)(3), (a)(5)(A)(iii), or (a)(6) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offense punishable under this subparagraph;
(B) a fine under this title or imprisonment for not more than 5 years, or both, in the case of an offense under subsection (a)(2), or an attempt to commit an offense punishable under this subparagraph, if—
(i) the offense was committed for purposes of commercial advantage or private financial gain;
(ii) the offense was committed in furtherance of any criminal or tortious act in violation of the Constitution or laws of the United States or of any State; ...

[Sue]

I wonder what was going on in this young girl's family life that would cause something posted on a My Space page to cause her to take her own life? While I think the bitch deserves scorn, I'm not sure all of the blame belongs with her.

[Walter]

Of course, besides my usual misspellings, I've made an error above as well.

Please substitute '5-year maximum term' for 'mandatory minimum'.

[clarice]

Well, that IS a creative reading of the law--PHEH

[Charlie (Colorado)]

I wonder what was going on in this young girl's family life that would cause something posted on a My Space page to cause her to take her own life? While I think the bitch deserves scorn, I'm not sure all of the blame belongs with her.

Sue, you can pretty well bet that the girl had the cluster of neurochemical problems, genetic variation, and personal history that manifest themselves as depression. At her age, she may have been pushed into her first acute episode, and it's not uncommon for a first acute episode to be fatal: the combination of intense emotional pain, feelings of worthlessness and helplessness, and poorly developed coping resources can be deadly. (Perversely, someone who has survived several acute episodes is sometimes more resilient, since they know that it can end.)

But consider if, say, the woman had simply punched the girl in the stomach, whereupon an unknown congenital aneurism ruptured and she died. Wouldn't the woman be largely responsible then?

I'm with Clarice: I'm not a fan of creative prosecutorial theories, but gosh she's an odious bitch.

[sylvia]

Yes something is strange here. I don't know if I believe this story fully. I think the mother needs to be investigated. Did things really happen like that? Or was there a cover.

Speaking of online fraud, I once chatted with a guy from Australia who was grieving over the recent death of his young online fiance whom he had been chatting to for months, from breast cancer in Las Vegas. He had bought her an expensive diamond ring before she died on his credit card. He was still in contact with her uncle though who was helping him through the grief, as he was really shaken up.

The more I heard about the details of this fantastical story, the more it became clear to me he was taken for a ride. "Las Vegas" was the first clue. I told him he should ask the "uncle" for a death certificate. Sure enough there was none, and we figured out and he agreed that this "uncle" was an older gay guy who staged the whole thing, pretending he was a young hot girl, complete with "death" to get himself out of the situation so that he could start chatting to this Australian guy as himself.

Funnily enough the Aussie guy didn't even seem that angry when he figured out the whole thing, and last I heard, was still chatting amiably to the "uncle".

[Sue]

Charlie,

I'm not excusing the woman's behavior, I'm just saying that someone let the ball drop in that family.

[Tom Maguire]

Volokh, from whom I've shamelessly stolen, has much more (& better written as well).

Well what took him so long? Geez, I go to the California law bloggers in the late afternoon and get nothing.

. The statute in question, 18 U.S.C. 1030, criminalizes acessing a computer beyond authorized uses to get information. The harrassment bit is added on to get a mandatory minimum.

Well, Orin Kerr is on Walter's side but I don't see it. If someone engaged in a harmless violation of the Terms of Service (e.g., set up an account under a false name) but did not engage in any bad subsequent act, the Kerr theory (as I follow it) seems to be that they are still in violation of this statute; the tortious act simply affects sentencing.

My theory is that absent the tortious act there is no basis for a charge - the first part of the statute clearly calls for hacking into a computer to steal something, plant a virus, or some such; in my reading, the "tortious act" becomes a catch-all for bad behavior not previously specified, but is still required in order to violate the statute. And that is certainly how the prosecutor presents it in the indictment.

Well, I certainly agree that it is a stretch. However, this objection struck me as lacking in nuance:

Was there some intermediate stage between the three years of Libby and Duke posts and this one?

Prosecutorial Discretion: Good When I Like the Result

My careful study of Law and Order has persuaded me that, unless and until we invent an Auto-Indict Justice system, there will be prosecutorial discretion in every indictment handed down, and in plenty of non-indictments that never reach that point. Since discretion is an unavoidable part of the system, well, yes, when I think it is being abused I will criticize it.

And to be clear, Nifong was engaged in a clear case of prosecutorial misconduct, not just an abuse of discretion - he broke a number of rules, as has been well documented.

Fitzgerald, to my mind, looked at a set of facts, realized he had no underlying criminal charge, and laid a perjury trap. Folks who think Libby was a bad guy and Ms. Plame a hero will applaud his use of discretion in bringing rough justice to an evil perp, but I do not.

In this MySpace case, the prosecutor is not out inventing or concealing facts (as best we know); they are stretching a law to cover a situation almost everyone deplores. Fitzgerald would probably have brought her to LA, put her under oath, then indicted her for perjury, thereby violating a host of DoJ regs but giving himself a clearer charge.

[Cecil Turner]

As much as I'd like to see this lady receive her comeuppance, I can't support using that statute to do it. This appears to be one of those cases where there's no applicable statute (unless one of those cyberstalker things for kids under 18 applies . . . which wouldn't bother me a bit). But using the hacker statute where it clearly (to my mind) doesn't apply, opens up a can of worms.

[Walter]

Tom,

Subsection (c), wherein tortious acts make their first appearance, specifies the penalties for violating subsection (a) or (b).

There is no way to get to the penalties without a violation of the previous subsections.

Prof. Kerr was rightly taken to task* for asserting that no information was sought--the very first news stories gave that as the 'lady's excuse for logging into MySpace. So, it is not completely out of the realm of possibility to show a 1030(a)(2)(C) social engineering hack to get information.

But my little firstname.___@gmail.com probably violates a typepad restriction. I used that 'logon' to ask questions. I'd hate to think I've been committing federal misdemeanors for the past couple years.

Without knowing it.

Heck, were I inclined to do so, I'd like to think that I would pick a (no offense) more fun (or at least lucrative) way to risk spending a year in the federal pen.

Statutory interpretation aside, my more relevant point was that the local elected prosecutor and the local appointed USA both exercised their discretion to decline to prosecute.

Here, someone with no connection or accountability to the community has stepped in to prosecute based on a really, really bad result of parental malfeasance.

That isn't discretion. It is a publicity stunt.

______
* Apparently he has offerred to help the defense. He's in the tank for the dark side on this one.

[clarice]

The defendant is odious but the professor is not taking up with the dark side ..

[Walter]

Ah, Clarice,

Sometimes one does the angels' work in helping the devil. It is just the nature of our system.

(I have an odd urge to type some ======= characters after that one. I should head to bed. Niters.)

[The Pagan Temple]

So, I take it no one would be interested in the possibility of tarring and feathering this bitch? How about boiling her in oil? Of course, this is one sick adult, but now I guess I'm in danger of posting on-line threats, if anybody wants to pretend to take me seriously. That's the danger here, it doesn't necessarily establish any perimeters, does it? Precedent is a funny and dangerous thing. Personally, I don't even trust civil courts. In fact, I especially don't trust civil courts. There are too many vultures looking for any excuse, and precedent is a legalese term for excuse, to make a quick buck in civil court.

So, let's just tar and feather her and get it over with.

Whoops, I did it again, I guess I'm just asking for it.

[bgates]

My theory is that absent the tortious act there is no basis for a charge...in my reading, the "tortious act" becomes a catch-all for bad behavior not previously specified
So there can be no prosecution, unless the prosecutor deems something to be 'bad behavior'. That's reassuring. I would rather the law consist of discrete prohibitions on certain acts, but then I lack nuance.

[Tom Maguire]

So, it is not completely out of the realm of possibility to show a 1030(a)(2)(C) social engineering hack to get information.

That is exactly the section the indictment cites, actually. And they argue it was the soliciation of info from the girl that made it criminal. The violations of the MySapce TOS include a false registration, posting false info, soliciting info from a minor, and harassing the girl, so it goes beyond a mere false registration to solicit info.

Walter's point is that he would like to think he is fully in the clear leagally if he violates the GMail TOS but engages only in harmless requests for info. As a practical matter, I am sure he is. As a legal matter, I wonder.

If Walter's only offense was to have some implacable enemy in the prosecutor's office who wanted to bust him for anything at all, then clearly the phony email charge would be abusive.

But think about Al Capone going down for tax evasion - suppose someone that eveyine "knew" was a major drug dealer got sent to jail for a year because he had a phny GMail account used in his operations. Pretty creative, but outrageous?

The obvious problem is that this creeps towards an attitude of criminalizing everything and letting the government sort us out, which I don't like. On the other hand, some slippery slopes are worth standing on.

Here, someone with no connection or accountability to the community has stepped in to prosecute based on a really, really bad result of parental malfeasance.

That isn't discretion. It is a publicity stunt.

Could be, but - could the local Federal prosecutor have made the same case with the MySpace servers in LA? Or wouldn't the well-oiled Bush DoJ have coordinated this?

My theory is that absent the tortious act there is no basis for a charge...

My theory was wrong and I am going to half-accept Walter's reasoning on this point - they could drum up a misdemeanor charge based on the (substantial) violation of the TOS, but not a felony charge.

I would rather the law consist of discrete prohibitions on certain acts...

As a practical matter, do you really have a problem with a law such as "It is an additional offense to use a firearm in the commission of a felony", or do you need them to cite every felony in the penal code first?

The prosecutor wants this hacking law to read that if a person commits unauthorized use of a computer to commit an act for which they could be sued, then in addition to the prospective civil suit associated with the underlying activity there is an additional felony penalty for unauthorized use of the computer.

My grasp of Walter's point is that, on the road to that result, the prosecutor is implicitly creating a misdemeanor charge for every TOS violation that results in an exchange of information, which is probably (OK, almost surely) too broad a reading of the law, or at least, beyond the original intent of the law.

And my point would be to cross that bridge after someone has fallen off it - I have no problem seeing this woman indicted, and am not worried that Walter will be next.

Should I be worried? Good question. But is is hardly the case that, until yesterday, prosecutorial discretion was tightly limited and today, as a result of this case, it is expansive. It's a tiny step in a troubling direction.

A segue to "RICO Creep" would be appropriate here - that would be an obvious example of a law intended for one set of targets and applied abusively to an entirely different group.

[clarice]

There's all too much "creep" and creeps in today's criminal prosecutions for my taste and not nearly enough supervision and oversight.
Better that this woman has to live thru being impoverished in a civil suit than that the criminal law should be prestzeled to cover her behavior.

[clarice]

**pretzeled***

[bgates]

As a practical matter, do you really have a problem with a law such as "It is an additional offense to use a firearm in the commission of a felony"
No problem at all. If the law read, "additional offense to use a firearm when you should not have," and the prosecutor gets to define the last 4 words at his convenience, that's another matter.

But is is hardly the case that, until yesterday, prosecutorial discretion was tightly limited and today, as a result of this case, it is expansive. It's a tiny step in a troubling direction.
Quite right. But what's a blog commenter for if not to howl over that kind of tiny step?

[Larry]

I have no direct knowledge, but I have heard similar cases were pursued because stalking statutes were violated. The computer/internet
being the medium is merely incidental.

[Walter]

I'm glad you (mostly) agree, Tom.

I was not so much looking for a correction as trying to gently nudge you out of a problem area in your spat with Salon. (Boy has that place gone downhill since the heady days of its founding!)

My gmail reference was to the email I long used here--to cut down on spam I gave typepad and the other blogs an address that only worked once the "firstname" was replaced with my first name. Seemed to work well. Until I wanted my password emailed to me.

Then, not so much.

To answer your question about Hanaway, yes, she could make the same argument that interstate commerce was involved even though she is not in the same District as the server farm. Both the perp and victim were (one still is) in E.D. Mo. and all of the felonious and tortious acts took place in her District.

This could be the first example of well-honed cooperation brought about by the installation of the first competent AG since Bush took office (maybe even since the first Bush left office, but I digress). I suppose then I'd applaud their teamwork, at least.

And I should point out that my long-suffering better half indulges my legal reasoning and then tells me that this case is much more Al Capone than Scooter Libby.

[sylvia]

Where is the actual law in question? I would like to comment on it but still haven't read it yet. I am trying to go through all the links and still haven't found it. A slight pet peeve of mine, to bury relevant information in a flurry of cryptic links when you could just excerpt it.

[sylvia]

Well my opinion after reading the indictment is it seems the crimes are about conspiracy and aiding and abetting. The tortuous act is just the underlying crime. It could be "conspiracy" to commit robbery or rape or any other crime. The crime itself is not the charge- just the conspiracy. In fact I don't even see tortuous act in the indictment.

I am no lawyer, and do not know how a conspiracy and aiding and abetting laws works. Does one have to prove in court that a criminal law was indeed broken, or merely show the jury that an attempt to break a criminal law was in play. And how much do you have to prove that the criminal was aware of the underlying crinimal law they might break, or were aware of how exactly their actions played in breaking it. Probably a complicated charge to prove in general.

In California they apparently have criminal laws that prohibit computer fraud, (probably started more in relation to terrorism), just as we have strict criminal laws against mail fraud (I saw The Firm!), I think it's a pretty easy case to prove in this instance. The defendant knowingly agreed to the terms of use of MySpace, which list rules against computer fraud type action, and she violated them. So they were at least aware of the underlying civil fraud they engaged in, which handily also helps prove their knowledge of the criminal law they attempted to break. So the underlying charge is computer fraud, and they knowingly 'conspired' to break those laws.

[sylvia]

Still on a side note I find the whole thing odd. How many 13 year old girls kill themselves by hanging? I wasn't aware it was common. And why would a grown woman so relentlessly engage in such activity with a 13 year old for no real reason? My conspiracy theory radar is up. There could be more to this story.

Could it be murder for instance? Could the neighbors want to kill this girl because she knew something about the family, such as drug dealing or sexual abuse by the neighbor's husband, and they invented the whole thing as a coverup for murder? Did the neighbors have any access to the house and to the girl? I don't know, it just seems strange. I guess JOM isn't the right place for these crazy thoughts, though, I might have to email Nancy Grace my questions instead.

[sylvia]

And as to worries about prosecutorial discretion, we already have years of laws against mail fraud, and I don't see this as too different. For instance, in the movie The Firm, Tom Cruise got his law firm in the end on mail fraud because they were mailing fraudulent bills. Now if the prosecutors wanted to, they could probably charge all kinds of people everywhere for mailing fraudulent bills, all day long, every day of the year. But they only tend to use it in the most egregious cases. So we already greatly rely on prosecutorial discretion for a similar situation and it doesn't seem to be abused. Hopefuly this law for computers would be the same result.