After Lori Drew’s alleged involvement in the online hoax surfaced, her advertising business folded. Her private information was plastered all over the internet. She was forced to leave the neighborhood after her neighbors shunned her. Missing from the picture, unfortunately, were any sort of criminal charges. Until now.
The government contends that Drew violated Myspace’s terms of service (TOS) by creating the fake “Josh Evans” profile. This gave Drew “unauthorized access” to Myspace servers across state lines, a federal crime generally used to prosecute computer hackers. Furthermore, since Drew did so with the intention of harassing a young impressionable teenager, the government also contends that she was guilty of gaining unauthorized access in order to inflict a tort; namely, intentional infliction of emotional distress. Curiously tame charges for the most hated mother in America.
Legal scholars worry that these charges may turn online TOS agreements into de facto criminal statutes. Such a strange result risks undercutting basic due process guarantees. There is a wide variety in online TOS contracts, and it would essentially be up to site administrators whether someone breaches the terms of service and thus breaks the law.
There are also practical concerns; how many people use their real names online, particularly on Myspace? Isn’t one of the benefits of online identities the ability to remain anonymous?
This may be the one of those cases where no law seems to encompass a clearly wrongful act. In such circumstances it is routine for prosecutors to use existing laws in unique ways to bring wrongdoers to justice. What balance will be struck in this case’s inevitable appeals? Unfortunately the geologic timescale of the criminal justice system may make us wait a long time for any answer. In the meantime, you may want to consider revisiting your “Studman_69” Myspace profile.