Friday, May 16, 2008


I assume everyone has seen the stories about the indictment in the Megan Meier suicide case. I did a post on the case last fall, because it at once outraged and mystified me.

(How could an adult get involved in all this?)

If you want a review of the facts and my take on the permissibility (not) of charges, check out that earlier post.

Here, I want to talk about something different.

I want to talk about why the woman who set the events in motion that led to Megan’s suicide has been charged in a federal indictment with (a) gaining unauthorized access to “a computer used in interstate and foreign commerce, namely the MySpace servers located in Los Angeles” and (b) conspiring to gain such unauthorized access to the MySpace servers for the purpose of inflicting emotional distress (harassment) on Megan. U.S. v. Lori Drew, Indictment, N.D. California 2008.

The unauthorized access charges were brought under the basic federal cybercrime statute, 18 U.S. Code section 1030, which I have written about before. If you want an outline of what can be charged under the statute, check out this post. The conspiracy charge was brought under the basic federal conspiracy statute 18 U.S. Code section 371, which makes it a crime to conspire to commit a federal offense.

My “why” questions (don’t expect answers) have two parts. The first goes to the propriety of bringing these charges. As I said in my earlier post on Megan’s suicide, it’s a horrible tragedy and I cannot understand what was in Lori Drew’s mind, but I don’t think it warrants criminal charges. And the local prosecutor simply was not able to bring charges because the facts didn’t warrant them. So now the federal government has gotten into this.

The people who created the Constitution and our federal system intended that criminal law be enforced firstly and foremost at the state and local level. They intended that because crime and the imposition of criminal liability are matters that resonate with local concerns, local mores, local attitudes. They also didn’t want too much power centralized in the federal government.

Over the last century, the number of federal crimes has exploded. I’m not getting into whether that is a good thing or a bad thing. It’s a fact, and it means federal prosecutors have access to a broad statute like section 1030 which can, maybe, be shoehorned into a prosecution like this. I think the charges can be, as they have been, put together in a fashion that will survive a motion to dismiss based on the premise that “this ain’t a crime,” but I don’t think they make sense in terms of law or policy.

Last January, I raised the grand jury investigation into Megan’s death with the students in my cybercrime class and we analyzed how section 1030 COULD be used against Lori Drew. It really doesn’t make sense, though: the statue was intended to criminalize hacking, both the general, exploratory kind of hacking and the kind that involves stealing or destroying data in a system you’re not suppose to have access to. Here, IMHO, it’s being used in a really distorted manner. There’s also the minor matter of diverting federal resources to a case that, I would argue, belongs in a state court if it belongs anywhere.

Okay, that’s the first part of “why.” Here’s the second: The stories say (and I haven’t parsed the figure out myself, using the statute and sentencing guidelines and all that) Lori Drew faces up to 20 years in prison if she is convicted of the charges in the 4-count indictment. Why?

The imposition of criminal liability and punishment – imprisonment – in our system is based on achieving four goals:

  • Incapacitation: We lock you up so you can’t re-offend.
  • Deterrence: We lock you up to teach you a lesson so you won’t re-offend when we let you go, and we lock you up to convince others not to follow your example and commit the crime(s) you did.
  • Rehabilitation: This used to be very important, but is a minor theme now. Basically, if we have time and it seems easy, we’ll try to rehabilitate you so you don’t re-offend.
  • Retribution: This is the oldest reason for punishment. The ancient law, the lex talionis, called for an “eye for an eye, tooth for tooth” and so on. So, we lock you up to exact pain from you for what you did.
Does it make sense to lock Lori Drew up for 20 years? Would doing that achieve any or all of these goals?

This goes to an issue I often raise with my students: overcharging. If Missouri had a harassment statute that would have encompassed what Ms. Drew allegedly did, then it seems to me it would be perfectly appropriate to charge her with that crime, convict her if the evidence established that she committed it and then punish her "enough" to achieve whichever of the above goals were driving the prosecution. So, in our hypothetical, she's convicted of harassment under state law and, what?, maybe fined, maybe given 30 days in jail, put on probation for a few years, required to work at suicide prevention center or some other appropriate place. That would make sense to me.

I just don't see the sense in, as the saying goes, "making a federal case out of it", especially not when it could mean 20 years in jail.

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