Free for a Fee

The trial date in the so-called MySpace suicide case is just a couple weeks away. Yesterday morning, the lawyers — Dean Steward for defendant Lori Drew, and AUSA Mark Krause for the People — appeared before U.S. District Court Judge George Wu to argue the defendant’s failure-to- state-an-offense motion.

(For past LB coverage of the case, click here. Here’s Drew’s most recent filing in the case, which includes the name of GW law prof Orin Kerr, who recently joined Drew’s defense team, several months after telling the Law Blog he might.)

Judge Wu is still confused on a few points, according to Steward, with whom we spoke yesterday. “My sense,” Steward told the Law Blog, “is that Judge Wu still wants to hear some actual testimony regarding the MySpace terms of service and the way MySpace works. Much of the discussion at the hearing focused on whether you have to agree to the terms of service if you’re simply visiting the site [but aren’t a member]. My sense is that the judge wants someone on the witness stand that can tell him exactly how the technology works.”

Why is Judge Wu concerned so much with the technology of MySpace? Probably because a major issue in the case is whether a violation of the MySpace terms of service can trigger the Computer Fraud Abuse Act, the statute that the U.S. Attorney’s office is using to charge Drew.

“I was somewhat disappointed that we plowed a lot of the same ground that we plowed before,” said Steward. “My bet is that we won’t get a decision on the motion before trial.”

Steward said the trial will be in two parts: the legal side, such as what the statute means and whether it can be triggered by violating the terms of service; and the factual side, the tragic death of a 13 year-old girl and the question of who caused it. “But the factual side doesn’t have much bearing on the legal side,” said Steward. “Yet it’s far more important because the legal side” — whether lying online and breaching the terms of service of a Web site can constitute a federal crime — “will affect people all over the country. My prediction is that it goes up to Ninth Circuit no matter what happens.”

A call to the U.S. Attorney’s office was not immediately returned.