July 23, 2008

Drew’s Attorney: Law is Flawed

By Robert Patrick, St. Louis Post-Dispatch

Jul. 23--The lawyer for a Dardenne Prairie woman accused of using a fake online identity to harass a neighborhood teen who later committed suicide fired off the first detailed challenge to prosecutors' legal theory early today in California.

Drew's lawyer, H. Dean Steward, electronically filed three documents in federal court in Los Angeles at about 5:30 a.m. California time (7:30 a.m. St. Louis time), saying that the criminal law being used to prosecute Lori Drew is flawed, unconstitutionally vague and tries to criminalize behavior committed by millions online every day.

Steward's filings also attack prosecutors, saying that in their say that they overreached in their "zeal to charge Lori Drew with something, anything."

"Only. . . Rube Goldberg could have built a theory of criminal liability like the one the government has tried to craft here," he wrote.

The challenges were expected, and prosecutors will have their chance to respond before a hearing currently scheduled for September. The case marks the first time that the Computer Fraud and Abuse Act has been used to go after online misrepresentations and harassment, not computer hacking. Legal experts have questioned its use, and it is not unusual for novel legal theories to face many challenges and appeals before seeing regular use.

Megan Meier, 13, hanged herself on Oct. 16, 2006, shortly after receiving this message from "Josh Evans," someone she thought was a 16-year-old boy: "The world would be a better place without you."

A federal grand jury in Los Angeles indicted Drew in May on a felony conspiracy charge and three charges of illegally accessing MySpace computers, or intentionally accessing a protected computer without authorization. If convicted, she could face up to five years in prison on each count.

Federal prosecutors in Los Angeles, near where MySpace computers are located, say Drew violated MySpace's rules and terms of service by using false information to set up an account, which she and the others then allegedly used to harass Megan.

But Steward says that in 22 years, the Computer Fraud and Abuse Act has never been used to go after someone who has violated a Web site's terms of service. And for good reason, he wrote in the filings.

There is no proof that those who set up the Josh Evans account consciously or knowingly violated the terms of service -- no proof that they were aware of them, read them or discussed them among themselves, Steward wrote. Someone must be aware of the terms to violate them and therefore be unauthorized, he said.

He also says that most people fail to read the terms of service when accessing Web sites.

"If violating user agreements is a crime, millions of Americans are probably committing crimes on a daily basis and don't know it," the filings says.

Steward also says that laws have to make clear what is prohibited, and the one being used against Drew doesn't. The terms "access" and "unauthorized" aren't defined in the law. The law fails to warn the public of what is prohibited and establish standards that would prevent it from being enforced in an arbitrary and capricious manner, he wrote.

"A reasonable person could never know whether their conduct violates the statute," the filings say, and the law is "ripe for discriminatory enforcement."

Steward also writes that it is unconstitutional to delegate governmental powers to private parties. Prosecutors' interpretation of the law would allow Web site owners unlimited authority to decide what was unauthorized.

"Almost any computer owner can set up whatever arbitrary and unique rules they want, and a violation of those rules can lead to a. . . prosecution," Steward wrote.

Steward attached an FBI memo that details the conclusions of the assistant U.S. attorney and FBI special agent who handled the case in St. Louis and found that Drew's conduct did not violate either of two statutes being looked at, the filing says. Those statutes are not specified in the memo.

Steward also wrote that Drew was not home at time last message was sent, and attached a portion of the FBI agent's investigative notes that say Drew's former employee Ashley Grills admitted to sending the message.

Grills told "Good Morning America" in April that she, Drew and Drew's daughter created the account and that she sent the final message. She also said that she has been granted immunity from prosecution.


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