FORUM COLUMN

By Robert D. Brain

I discovered in art history that the more I learned about the background of the artist, the more interesting the painting became. The same is true about litigation. With that in mind, let me share with you some of the backdrop of the MySpace mom case I learned as I was researching for my videogame casebook.

The Drews moved into a St. Louis suburb about five years ago, with the help of Tina Meier, a local real estate professional who lived on the same street. The families had a lot in common, including grade school-aged daughters, Megan Meier and Sarah Drew, who became friends. In September 2006, when the girls entered eighth grade, Megan transferred schools and the girls drifted apart. But the parents stayed friendly. It was that kind of neighborhood.

About that time, a MySpace account with a false profile was opened in the name of Josh Evans. "Josh" told the MySpace community "he" was 16, and posted a shirtless picture of himself worthy of an Abercrombie & Fitch ad. When creating a MySpace account, a user has to click an "I agree" dialogue box consenting to the lengthy MySpace terms of service agreement, which requires that the information in the profile must be 100 percent accurate; that the user refrain from soliciting personal information from minors; and that information learned from MySpace not be used to "harass or harm" others.

Shortly before, Megan, who was then 13, begged her parents for permission to open her own MySpace account. The Meiers eventually agreed, but with conditions. First, the computer had to be in a common area of the house, and only they would have the MySpace password, so they could monitor her account activity at all times. In addition, it was to be a "private" account, meaning that one of them had to specifically approve adding someone from the MySpace community as a "friend."

Almost immediately after setting up "his" account, Josh started messaging Megan, saying he had just moved into town, was being homeschooled and that her picture was "sexi." Tina Meier granted Megan's request to add Josh as a friend and, at first, the Drews were delighted with the results. You see, Megan believed herself to be overweight, and had self-esteem issues. She had been under the care of a therapist for years and reports say she had attempted suicide in the past and had been taking psychotropic medication. But during the six weeks she and the "hot" Josh were MySpace friends, she lost 20 pounds and was upbeat and cheerful. She was about to turn 14, and invited Josh to her party.

A day or two after the invitation was sent, Josh's messages took a different turn. Don't know if I want to be friends with you any more - heard you spread false rumors about your friends. What do you mean, Megan asked? He didn't say. Megan was puzzled; depressed. The next day, Megan rushed home from school, asked her mom to log on - maybe it was all a misunderstanding; maybe he had RSVP'd that he was coming to her party. But no, there was more of the same. Puzzlement turned to anguish. Her mom wanted to shut off the computer, but Megan's sister had an orthodontist appointment and needed to be driven there. At least she got Megan to promise to log off as she left the house. But Megan did not. Tina Meier called from the orthodontist to check - Megan was sobbing. The MySpace community was now posting "bulletins" about her: "Megan is fat;" "Megan is a slut." It got worse. "Log off, Megan!" But she could not. Megan's mom called yet again, "Why are they being so mean to me, Mom?" There were no apparent answers. While Tina was driving home, Josh sent a final message ending with, "the world would be better off without you." Megan typed back, "You're the kind of guy a girl could kill herself over." When Tina got home - Megan was distraught, but finally got off the computer and walked despondently to her room. About an hour later, Tina found Megan in her closet, having hung herself. She was rushed to a hospital, but died the next day. The parents tried to write Josh, telling him the effect of his hurtful words, but his account was cancelled.

During the next few weeks, neighbors, including the Drews, tried to comfort the Meiers. As part of the healing process, the Meiers began to visit with their friends to talk about Megan's life. They told the Drews on one visit that Megan always appreciated their friendship. They came to Mr. Drew's 50th birthday party. Life was slowly going on. About that time the Drews bought a foosball table for their kids for Christmas and asked the Meiers to hide it in their garage so as not to spoil the surprise.

About Thanksgiving, it became too much for one neighbor. Several weeks before, one of the Drews let loose the secret of Josh to one of Sarah's classmates. The "Josh" account and profile was opened by Lori Drew and Ashley Gillis, an employee of the Drews' marketing company. The consensus is that Drew had heard that Megan was spreading rumors about Sarah and wanted to find out what she might be saying about her daughter online. The classmate told her mother, aand the mother told the Meiers. After the wailing stopped, the Meiers took an axe to the foosball table, drove the rubble over to the Drews and dumped it on their driveway. Shocked at such behavior, the Drews filed a police report and a misdemeanor complaint was issued against Ron Meier, Megan's dad.

At that point, not many knew the truth about Josh, but when it was discovered that the Drews swore out a complaint against Ron, it was "on." Word of what happened spread through the neighborhood; then to the nation and then to the world via the Internet. TThe Drews became the targets of what the cyber community calls "Internet shaming" and the cybermob made its outrage against Lori Drew plain.

Action was demanded of the authorities, but the Missouri prosecutors said they didn't believe that Lori Drew had committed any crime. Enter the U.S. attorney's office for the Central District of California. The office has more experience than most with the prosecutions federal Computer Fraud and Abuse Act. Under the act, it is a crime to gain unauthorized access to another's protected computer. A theory was devised that because she violated the terms of service agreement, Drew was not authorized to be on MySpace. Hence, accessing the MySpace servers in the guise of Josh was essentially an unauthorized criminal "hack." The theory regarding jurisdiction was that the crime actually took place on the servers themselves and MySpace houses its servers in Beverly Hills. So Drew was indicted in Los Angeles on three misdemeanor and three felony hacking charges; as well as a conspiracy count, claiming she conspired with Gillis to commit the crimes. The difference between the felonies and misdemeanors was essentially intent - to be guilty of a felony under the Computer Fraud and Abuse Act the defendant must have hacked with an intent to commit harm, whereas unauthorized access to a protected computer is enough for a misdemeanor conviction. Drew was hauled to Los Angeles and tried.

As is often the case, a slightly different story emerged at trial. Gillis was given immunity and she testified that while Drew knew what was going on and wanted to know whether Megan was spreading rumors about Sarah, it was nevertheless Gillis's idea to set up the MySpace account. Further, Gillis testified that she was the one who made up and typed the final, "the world would be better off without you" message. Moreover, she testified that neither she nor Drew ever read the terms of service. The jury acquitted Drew on the felony charges, hung on the conspiracy count, but convicted her on the misdemeanors. The U.S. attorney's office sought the maximum three years imprisonment and a $300,000 fine.

The case was tried before Judge George Wu. He had taken a number of defense motions under advisement throughout the trial, and when it came to the sentencing, he granted some of those motions and dismissed all the claims. His opinion has not yet become final, but reports of his order and the reasoning behind it have been published. He expressed concern that conviction on the misdemeanor counts was really a criminalization of a simple breach contract between MySpace and Drew, and gave MySpace, not the Legislature, the ability to define criminal activity via the terms of its terms of service agreement. He wondered whether it should be criminally actionable for someone who was actually 45 to type that he was 40 on his profile, and was also troubled by the question of whether someone who hadn't read the site's provisions should be held criminally liable for violating them. He also mentioned possible constitutional problems in trying to punish Internet speech. Finally, he explained that he didn't rule on these issues before trial because he wanted to see what the jury was going to do, and indicated he might have sustained a felony conviction as acting with intent to commit harm stood on a much different moral and legal footing.

In the end, the litigation left no winners. Without criminal sanction, no message of societal approbation was delivered to the next person who creates a false profile for whatever reason. The U.S. attorney's office came up with an ingenious theory, but after expending much effort, it lost. Drew prevailed, but she has been so beleaguered that her family has had to move out of the neighborhood; her business has been affected; and she has emptied her bank account (and that of her parents) to vindicate a legal position that the Missouri prosecutors adopted in the first place. And, of course, the Meiers, who lost a child and have now divorced, have no sense that justice was done.

In the future, lawyers and law professors will use the case to argue about computer servers as the basis for cybercrime jurisdiction, the implications of criminalizing breach of contract and the scope of the First Amendment. But what hopefully doesn't get lost is that cases are not just standards and dogma; holdings and dicta. Every case is the product of human interaction and consequence.

Robert D. Brain is an associate clinical professor of law at Loyola Law School, whose research interests include contracts, evidence, video game law and trial techniques. He can be reached at bob.brain@lls.edu.