Lori Drew Criminal Case Ends With a Whimper

By Eric Goldman

United States v. Drew, 2009 WL 2872855 (C.D. Cal. Aug. 28, 2009)

Almost 2 months ago, the judge presiding over the Lori Drew trial orally announced that he intended to rule in favor of Drew, but it was a little hard to decipher his statements without a written ruling. On Friday, the judge issued his written ruling, which indicates that he granted Drew’s FRCP 29(c) motion for a post-verdict acquittal. I haven’t seen any announcement of the prosecution’s response and whether they plan to appeal. This ruling also has no direct bearing on any civil claims against Drew. Nevertheless, for now, Lori Drew has been fully acquitted of the criminal charges brought against her.

The Holding

While the written opinion clears up the judge’s exact disposition of Drew’s status, it is hardly a clear précis on the legal issues. The judge ultimately grants the acquittal because a Computer Fraud & Abuse Act (CFAA) prosecution based on negative behavioral restrictions in an online user agreement is void-for-vagueness. I think this makes a lot of sense because the negative behavioral restrictions are effectively incorporated into the criminal statute but lack the degree of drafting precision we require from criminal prohibitions. The judge gives a good example of such an imprecise restriction by citing a MySpace user agreement prohibition against posting in “band and filmmaker profiles…sexually suggestive imagery or any other unfair…[c]ontent intended to draw traffic to the profile.” The judge rightly asks what the terms “sexually suggestive imagery” and “unfair content” mean when incorporated into a criminal CFAA prosecution. If we aren’t sure, that sounds like a valid basis for a void-for-vagueness dismissal.

Having said that, given this ruling, I still can’t understand why the judge let this case go to the jury in the first place. I believe the judge’s ruling was independent of the jury verdict and does not rely on any of the jury findings, so why did he wait until after the jury verdict to make a ruling that he could have made pre-trial? His delay was not costless. The jury verdict against Drew remains a public rebuke of Drew even though it’s been wiped away, and the judge could have saved everyone a lot of time and money by cutting to the chase earlier.

The Dicta

The judge’s actual void-for-vagueness discussion of Drew’s situation starts on page 25 of a 32 page opinion. What’s going on in the previous 25 pages? The remainder of the opinion apparently explains how the government may have successfully proven the elements of its case, but I found the discussion gratuitous, meandering and confusing. Some of it could also be pernicious. For example, consider this oh-no quote from FN 22:

As a “visitor” to the MySpace website and being initially limited to the public areas of the site, one is bound by MySpace’s browsewrap agreement. If one wishes further access into the site for purposes of creating a profile and contacting MySpace members (as Drew and the co-conspirators did), one would have to affirmatively acknowledge and assent to the terms of service by checking the designated box, thereby triggering the clickwrap agreement.

Read that first sentence again. WHAT??? Did the court just say that every visitor is bound to MySpace’s browsewrap just by visiting the website? Uh, I don’t think so, or at least I hope not. Whoa.

Another oddity: on page 9, the opinion says “According to Sung, MySpace owns the data contained in the profiles and the other content on the website.” (Sung is MySpace’s VP of Customer Care). The court slyly quotes the applicable provision in the user agreement which clearly points out that MySpace only takes a non-exclusive license to user data, not ownership. So what could this reference to ownership possibly mean?

Implications of the Ruling

Although I wish the judge had been more careful and laconic in his drafting, this opinion is still a good jurisprudential development. This opinion erects a significant hurdle for future CFAA criminal prosecutions for breaches of user agreements because they will face the same void-for-vagueness challenge that was dispositive here.

I’m less clear how this opinion might affect civil CFAA lawsuits for using third party servers in excess of a user agreement. As the case recounts, a number of cases already accept those claims, and I think this judge’s dicta simply adds to those cases. So, for example, if MySpace wanted to sue Drew civilly under a CFAA theory for the behavior at issue with her criminal prosecution, I don’t think this opinion would stand in the way. In fact, I think MySpace would cite it favorably. Then again, I doubt MySpace will be suing Drew; MySpace has been conspicuously low-profile about a crime purportedly committed against it.

I do not expect this ruling will defuse any debates over cyberbullying and how to deter it using legal means. If anything, the fact that Lori Drew walks is more likely to pour gasoline on the fire of state legislators who think they can solve the problem through their brilliant statutory drafting. They are wrong, of course, and they can do plenty of harm by trying (see, e.g., the broad and dangerous law that Texas just passed). Unfortunately, I expect more anti-cyberbullying legislative efforts, for better or (mostly) for worse.

Even though the judge corrected a judicial system error, I continue to believe that we as cyberlawyers need to mitigate the problems we create by putting extensive and ambiguous negative behavioral restrictions into our online user agreements. As I’ve explained before, I think best practices now move most negative behavioral restrictions into a non-binding statement of community norms and expectations.

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