Sunday, December 7, 2008

A Tortious Act

Last week, Lori Drew was acquitted on three felony counts of unauthorized use of MySpace and one count of conspiracy, though she was convicted of a misdemeanor on the former. Members of the jury, according to forewoman Valentina Kunasz, wanted to convict her but the prosecution did not give them enough evidence under the statute:

"We felt that ... knowing that she's got mental stuff going on, was enough to turn what normally wouldn’t be tortious into tortious or malicious," Kunasz said. "And the fact that this 47-year-old woman is participating -- whether it be physically or just egging them on verbally -- to me something was very off. What they were trying to do as a whole in the long-run was humiliate this girl, make her feel like a piece of [dirt], and make her feel sad.... They were intentionally trying to hurt her."

But four jurors felt that because Megan and Sarah Drew had a opened a MySpace account months earlier to meet boys, that Megan was emotionally functional and should have known what she was getting herself into by communicating with "Josh." She should have been prepared to be rejected by "Josh."

But these two things can exist simultaneously. Megan could still be aware of what she was involved in and yet still be completely blindsided by what actually occurred. There’s rejection, and then there’s harassment.

The trial was plagued with a number of problems, including conflicting testimony, and the fact that Megan’s suicide was not suppose to factor into the decision. It’s practically impossible to leave Megan’s suicide out of the investigation, because no matter which way you spin it, the distress of the attacks on her through MySpace caused her to kill herself. She was especially vulnerable due to her past problems, and the fact that Lori knew about this only damns the woman more.

One of the issues in this case—and the reason it is held in Los Angeles, where MySpace’s servers are based—is that it’s supposed to be a violation of the Computer Fraud and Abuse Act, which was previously used for hacking. Indeed, the fraud protection of the law can liberally be applied to this trial, even though emotional distress isn’t listed as a reason. The jury had to decide if Lori Drew obtained unauthorized access to MySpace’s computers with the intention of inflicting emotional distress on Megan Meir and a conspiracy to do the same thing.

This case has been closely watched by a number of people, partly because it is considered the first cyber-bullying case and could set precedents in the future.

Links to pdfs of the indictment and jury instructions, both before and during the trial, can be found, along with the complete story, at the Threat Level blog from Wired. Here's a related piece on vigilante justice and the role the Internet played with exposing the story.

7 comments:

mikhailbakunin said...

But these two things can exist simultaneously. Megan could still be aware of what she was involved in and yet still be completely blindsided by what actually occurred. There’s rejection, and then there’s harassment.

I don't know all the details of the case (or the exact statutory definition of harassment), but I don't think that Lori Drew's deception automatically implies harassment. Megan didn't know that she was communicating with Drew. As far as she was concerned, "Josh" was harassing her. So, if "Josh" had been an actual person, would you still think his actions constituted harassment?


(Also, I believe it's the Computer Fraud and Abuse Act that she was charged with violating.)

MediaMaven said...

It's the same act (the Cornell link I included came from the Wikipedia page, but I didn't want to use the entry because it needed to be cleaned up).

As for your comment--maybe so, but it's more than rejection. Saying "The world would be a better place without you", preceded by insults, is a lot different from "I'm just not that into you."

mikhailbakunin said...

But I think you're kind of dodging the big question in the case. Do you think the federal government should be able to transform what was essentially a MySpace insult - however scathing - into a felony charge?

I realize that Drew wasn't EXACTLY prosecuted for the insults, but facts related to that aspect of the case were presented at the trial. In other words, I think it's pretty clear that Drew was really being prosecuted for saying mean things rather than violating MySpace's user agreement.

(Also, did I quick Google search and I can't find "Computer Use and Fraud Act" anywhere. The link may be correct, but I think you have the wrong name.)

MediaMaven said...

I fixed the error. That was just a careless editing mistake on my part.

I recommend the Threat Level blog for learning more about the case, since it's quite extensive, provides a lot of links, and follows the case as it unfolds. It has more detail than many of the mainstream media accounts of the trial.

It's a tricky case, because it's hard to separate the different facets from one another. The case itself is all over the map judicially (depending upon how one interprets the laws, she may not have done anything illegal), and there's confusion regarding the sequence of events. She did violate parts of the Terms of Service, since it was a fake account, and she did intend to get information from and about a minor.

But you're right in that the actions are so morally abhorrent that she basically was tried for the horrible chain of events that followed in the wake of creating the account. In that, though, there's the argument that she could have received a far harsher sentence than what she got.

To the question you posed in your first comment: I do think those statements constitute harassment. If similar words and statements were written in a public forum, even in a wall post, or if Sarah Drew had brought those printouts to school to disseminate and taunt Megan with, of course it would be considered unacceptable and the offenders would be reprimanded or face other disciplinary action. If statutory harassment is considered "unwanted conduct that violates another person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person", and it happens repeatedly, with the explicit intent to hurt someone, then it is harassment.

Of course, in hindsight you wish that Megan would have just blocked “Josh” from her account and severed all ties. Doesn’t mean that Drew & Co. wouldn’t have tried something else, but it might have deterred them from further action.

mikhailbakunin said...

You're right - the real world is messy. Things don't fit into logic-tight compartments. And sometimes the structure of our judicial system allows for a certain degree of injustice. But if we begin to apply laws arbitrarily in order to rectify specific injustices, I think the entire judicial system is weaker for it. All of a sudden, vengeance becomes more important than consistency and objectivity.

So, philosophically, I have a real problem with cases like this - cases where I don't think jury members can be trusted to put personal feelings aside.

Regarding the harassment question, I think there are two separate issues. The first is whether Lori Drew's actions technically constitute harassment. I think it's pretty clear that they don't - otherwise federal prosecutors would have charged her with harassment.

The second issue is whether there should be some sort of statutory revision - amending the legal definition of "harassment" to cover a broader range of action, or passing new legislation.

(Again, I'm not a lawyer and I don't know exactly how different statutes are applied, but I'm pretty sure that "internet" harassment isn't covered by federal legislation. I think the website you referred to is concerned with harassment in the workplace.)

Anyway, I think we disagree on the second point. You seem to be suggesting that Drew's actions SHOULD constitute harassment. I don't think so - for exactly the reason that you cited. There is no forced interaction on MySpace. If someone is bothering you, you can simply block them.

I think if we apply your new definition of "harassment" consistently, then every nasty comment posted on a message board or a MySpace page is suddenly grounds for federal prosecution.

MediaMaven said...

I know the link deals with harassment in the workplace, but that was the best definition I could find. As far as I know, there are no laws for online harassment—it’s up to the individual website or organization as to how they deal with it. Even school-wide policies are determined by state or local laws; the few school-related links I found supported that.

While it’s true that you don’t want to tamper down every comment on social websites (and I certainly do not want anything of the sort to happen), the biggest problem as I see it is when the personal and the online mix. What if Megan blocked “Josh”, yet Sarah Drew and her friends had wall posts and groups that specifically taunted her? What if they planned a nasty prank on her and the whole plan was outlined online? What if they made threats to her—and Megan found out anyway? Even if she tried to stay away from them online, what if the girls didn’t, and brought that nastiness to an arena where she couldn’t hide from them? Does it only count once it's brought into the public eye?

I got the impression from some of the reports that it was actually Ashley Grills who was the mastermind behind the operation—which makes sense, as 1) she was granted immunity in favor of being a witness for the prosecution and 2) she was 18 at the time, and far more knowledge of how all these online tools work, and 3) because it seems a lot more logical that a girl that age would think up a scheme like that than a middle-aged woman. But if you take that view, then Lori Drew is practically innocent and could be considered a victim, since she’s the one who’s facing the consequences now.

mikhailbakunin said...

What if Megan blocked “Josh”, yet Sarah Drew and her friends had wall posts and groups that specifically taunted her? What if they planned a nasty prank on her and the whole plan was outlined online?

If Drew and her friends had created such a group, Meier could notify MySpace and they could deal with the matter. People shouldn't be held criminally liable for insulting their classmates on a social networking site. If the insults evolve into violent threats, that's a different story.

There's a distinction between saying "Megan is ugly" or even "Megan should die" and explicitly outlining plans to hurt Megan. You seem to be throwing out a bunch of hypotheticals with no consideration for that distinction.

I got the impression from some of the reports that it was actually Ashley Grills who was the mastermind behind the operation . . . . But if you take that view, then Lori Drew is practically innocent and could be considered a victim, since she’s the one who’s facing the consequences now.

I don't really understand your point with regard to Ashley Grills. If you take that view, then Lori Drew IS practically innocent. So, do you take that view?