Free for a Fee

[This case was noted in a boxed insert in the defamation section of Chapter Six (Personal torts). It is the case involving Lori Drew and the 16 year old girl, Megan Meier. Drew is said to have “cyberbullied” Meier. ell]

With the October 7 trial date approaching in the MySpace Suicide case, we called up H. Dean Steward, the defense lawyer for Lori Drew, to see whether we should prepare Law Blog One for a journey to California.

Judge George Wu, Jan. 19, 2006, in Los Angeles. (AP Photo/Los Angeles Times, Robert Gauthier)

We’re glad we called. Yesterday, says Steward, at what was supposed to be a pre-trial conference, U.S. District Court Judge George Wu told Steward and AUSA Mark Krause, who’s prosecuting the case, that he was having trouble with a few issues.

Before we get to them, a quick refresher on the case: According to this New Yorker article and the May indictment, Drew — under the guise of “Josh” — struck up an online relationship with Megan Meier, a 13-year old MySpace member, that lasted for several weeks. “Josh” — who was the MySpace handle of at least three other individuals in addition to Drew — allegedly told Megan she was “sexi” and made other suggestive overtures. He later told Megan that the world would be a better place without her. Distraught, Megan went to her bedroom where she hanged herself in her closet. (For past LB discussion of the case, click here, here and here.)

According to Steward, Judge Wu requested briefing on the following three issues:

What terms of service matter? Are all violations of the Myspace terms of service tantamount to the “unauthorized access” required by the Computer Fraud and Abuse Act? If not, who decides which violations are relevant? MySpace? A jury? Or the court?

Here’s why it matters: The government’s theory of the case seems to be that when Drew registered on MySpace she agreed to certain terms of service that required her to, among other things, provide ?truthful and accurate registration information? and ?refrain from promoting information that? she knew was ?false or misleading.? For violating the terms of service, the feds have charged her with conspiracy to access MySpace without authorization.

Where’s the theft? According to Steward, Judge Wu says he’s found some support for the idea that the object of the Computer Fraud and Abuse Act is to prohibit theft of information. So Judge Wu wants to know what, exactly, Lori Drew stole. According to Steward, AUSA Krause likened Drew’s alleged unauthorized access to a trespass on land. “That?s all well and good,” Steward told the Law Blog, “but then show me in indictment where you allege that Lori Drew stole information.”

Back to Con law 101: In what Steward says was a surprise to him, Judge Wu wanted to know where “the interstate connection” was, given that the alleged acts occurred in Missouri. The government brought the case in California because MySpace is based in Beverly Hills.

“I?m an old war horse,” says Steward. “So for me, it?s always been the case that if you use the mail or a wire, then there?s an interstate connection. I assumed that, under these facts, that would apply. But the judge isn’t so sure. I can’t tell you how delighted I am to dig into that issue. I know there has been a narrowing of it over the years.”

A call to Krause’s office was not immediately returned. Steward predicts the trial date will get pushed back to December.