Doublethink

Lori Drew and the Case of the "Cyber Bully"

benwasser:

For the sake of transparency, I was quite proud of the title for this post until I looked it up and found someone beat me to the punch. I think I liked the world better when nobody knew everything had been done before.

I’ve written on this subject previously, but with recent developments, I have decided to return to it. Lori Drew was convicted of at least one misdemeanor charge (I’m not exactly sure of the conviction) in her involvement in the Megan Meier case, but it was recently thrown out before sentencing. This is a victory for justice even if it is, on face, morally troublesome that Drew’s horrendous actions are going unpunished.

From what I gather, the charge Drew was convicted for was falsification when creating the MySpace account and thus being unauthorized to use the account for which she was not technically the owner of, due to the falsification. The unauthorized part is the existing law and the rest was the finagling to make this case apply to it. If you’re not aware of how dangerous a conviction on this charge is (with a possible penalty of up to three years in prison, I believe) for precedence, I’ll quickly explain: First, the government would be able to prosecute people for acting anonymously on the internet. How’s that’s working out for people in China and Iran? Secondly, it could be used to prosecute people who don’t follow end user agreements. If I write in this post that by accessing this page, you agree to a noncompete clause (we need fewer bloggers, anyway), would you be forced to abide by my wishes or else face a misdemeanor charge?

U.S. District Judge George H. Wu has, it seems at this point, acted in the defense of our entire democracy. Just because the majority or authority really wants something, doesn’t mean it should happen. We all read the story of Megan Meier and wanted Drew to be punished, but that doesn’t mean she should be. Shortsighted knee-jerk reactions to punish her through our legal system could and probably would be used against any of us in the future. In this case, we really don’t want to make that bed. For the rest of her life, Drew will live as a free woman enslaved by what she has caused. To her family, neighbors, anyone who hears of the story, and anyone who Googles her name in the future will be her judges and jury. Changing or adapting the law to punish her is on par with prosecuting Communists, homosexuals, mixed-race couples, and other people who we (at one point or another) don’t like but don’t have any real basis for prosecuting.

Aside from that, I’ve noticed a lot of people on the internet using the term “cyber bullying” with a straight face. This sort of anachronism coined by out of touch politicians still wide-eyed and slack-jawed about any sort of technology more complex than their TiVos is insulting to those of us who regularly hang ten on the World Wide Web and use Electronic-mail to discuss our recent Weblogs or whatever we do. Remember the good old days when all we had to worry about was analogue bullying? You know, like putting signs on people’s backs, spreading rumors, prank dates—oh wait. What role did the cyber age really play in this case of bullying? It gave politicians and prosecutors an outlet to try to limit everyone’s freedoms because one girl decided to commit suicide.

Preface: I haven’t read any of the court papers, just media coverage.

One thing to keep in mind here is that crimes have two elements, usually: an act and a mental state. The prosecutors don’t seem to have been arguing that she should be criminally liable just for violating the TOS per se (strict liability) but rather for violating the TOS with the intent to do whatever she did. Depending on how steep the intent requirement for the crimes was (e.g., “intent to maliciously harm another” versus “intent to cause mischief” versus “intent to violate the TOS”), this doesn’t seem horribly bad to me, and is a fine-line distinction that is made in the law constantly (e.g., you can be civilly liable in tort for battery but not criminally because your intent was too “low”).

Because the crimes were misdemeanors, I gather the mental state requirement was fairly de minimis (gross negligence? recklessness?), which is why Judge Wu is tossing the case, as it basically amounts to the jury finding willful TOS violations a crime. If the crimes required “more” intent (e.g., “intent to cause someone to hurt herself”), I wouldn’t find them objectionable, as it would narrow the field of who is criminally liable quite a bit and make convictions hard because evidence of such intent would be so difficult to find and admit in court.