Tuesday, November 24, 2009

Prosecutor decides not to appeal decision that intentional violation of terms of service agreement constitutes a crime

I wrote in September about the U.S. District Court decision throwing out the jury verdict convicting Lori Drew of violating a federal criminal statute on the grounds that in accessing MySpace with the intent to harass Megan Meier she had she had intentionally accessed a computer "without authorization" or in a manner "exceed[ing] authorized access." The prosecution's theory was that Drew's actions satisfied the elements of the crime because breaching MySpace's terms of service agreement constituted gaining "access" to "a computer without authorization" and in a manner that exceeded "authorized access." The court concluded that defining intentional violation of a terms of service agreement as a crime would unconstitutionally empower prosecutors to "to pursue their personal predilections" in seeking indictments because there would be "absolutely no limitation or criteria as to which of the breaches should merit criminal prosecution. All manner of situations [would] be covered, from the more serious (e.g. posting child pornography) to the more trivial (e.g. posting a picture of friends without their permission)."

At the time, the prosecution promised to pursue an appeal. But "the U.S. Attorney spokesman told Threat Level on Friday that the government would not pursue a retrial on that charge."

1 comment:

  1. That's interesting because it opens the scope of further indictments that might have usually been overlooked. So one type of crime could be split into several different smaller ones based on the fine print language. I think almost certainly the prosecutors here would have pursued had Lori committed a more serious crime.