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Legal Speak

Making the Law Work

Published September 26, 2008 11:45 AM by Tony DeWitt

It is often said, erroneously, that ignorance of the law is no excuse. The fact is, ignorance is frequently an excuse, and juries determine if it's a good one. Societies regulate conduct by passing laws. Sometimes the law is a little slow in catching up with technology. So when computers became tools for hackers and criminals, laws were passed to forbid their use for unlawful means.

Next came "cyber-bullying" - a term coined by the media after a St. Louis area woman reportedly bullied a teen into committing suicide. Even though it will ultimately fail the test of the First Amendment, states and the federal government rushed to regulate this kind of conduct under the theory that it is somehow better to place restrictions on free speech than to encourage teenagers to end their lives. While I question the wisdom of this kind of lawmaking (i.e., passing a law because it makes legislators feel good), it was certainly within their right to do it. Someone will undoubtedly challenge it, and the Supreme Court tends to interpret the First Amendment broadly. The law is unlikely to punish wrongdoers but likely to keep otherwise nice people from acting like complete jerks.

This brings us to the case of Lori Drew, the St. Louis woman who federal prosecutors claim bullied Megan Meier, then 13, into suicide. Drew impersonated a teenage boy on MySpace, and apparently convinced Meier that there were problems with her worth as a human being. Don't misunderstand. I do not condone Drew's behavior. She must live with herself for the rest of her life knowing that the child died as a result of the mean things she said. 

The US Attorney's office in St. Louis, run by Catherine Hanaway, is one of the most aggressive in the country at prosecuting federal crimes. The prosecutors in that office, many of whom I know, wouldn't hesitate a minute to file a case if indeed there was a case to be filed. But because they are great lawyers sworn to uphold the law, and because Ms. Hanaway prefers to enforce, rather than make, the law, that office declined to press charges because Drew didn't break the law.

Enter the federal prosecutors from Los Angeles, where MySpace is located. MySpace took aim at Drew under the Computer Fraud and Abuse Act (CFAA). CFAA was written to address hackers and others who violated protected business computers, hacking into account information, stealing identities, and otherwise engaging in electronic pillaging. It contains loose language that defines a "protected computer system" very loosely. 

When Drew obtained a MySpace identity she was confronted with the "terms of service" for the MySpace system. One thing the terms forbid is using someone else's identity. If you do, MySpace can kick you off the service. Incredibly, the prosecutors in Los Angeles charged Drew with a federal crime under CFAA for violating the terms of service of MySpace by lying and impersonating the boy who Meier thought didn't like her. Under the government's theory, violating the terms of service of an online community like MySpace converts a computer user's activities from lawful to criminally unlawful.

Why should this worry nurses who might never use MySpace? Because many health care facilities are going toward paperless records, and that means nurses and administrators will have log-ins and passwords and will be setting rules for access to the computer. Suppose a night nurse who just went off shift calls back to the facility and says "I forgot to chart Mr. Smith's Lasix."  Being a kind soul, a day shift nurse enters the nurses password and user ID, charts the drug, and the night shift nurse avoids coming to the facility. 

 Under the government's theory, because the day shift nurse "impersonated" the other user, and because this is likely not permitted by the facility's rules, the day shift nurse would be subject to indictment even though she had no criminal intent because she exceeded her authorized access and did so knowing that she was using someone else's identification.

Drew is well represented. Her counsel have filed numerous motions to dismiss. They have been joined by the Electronic Freedom Foundation, a watchdog group formed to protect constitutional rights in an electronic age. Recent media reports suggest that the judge is carefully considering these motions.

While the prosecutors may likely think it wrong that Drew did what she did, they should be sticking to enforcing the laws that are written, and not trying to reverse engineer existing laws to criminalize behavior that is not criminal.

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About this Blog


    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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