The Lori Drew case was scheduled for a hearing today and the question was whether she would be sentenced or perhaps the case dismissed.  According to press reports it looks like it may be the latter, although everyone is calling it a "tentative" ruling pending the court's written order.   A key issue in the case was whether the computer statute that was used was appropriate for these alleged acts.  (see here) The State where the alleged act took place – Missouri – did not have a cyberbullying crime at that time, although one has since been passed. Federal prosecutors in California brought this case, a case with a keystroke in Missouri, premised upon the contractual agreement one clicks with MySpace. They also used the conspiracy statute as it allows for a wide jurisdictional base, although Drew was not convicted of conspiracy. If the final decision is to dismiss the case, it would not be surprising.

See Alexandra Zavis, LATimes, Judge tentatively dismisses case in MySpace hoax that led to teenage girl's suicide  ; Gina Keating, Reuters,  MySpace suicide conviction tentatively dismissed; Linda Deutsch, AP, Judge tentatively acquits woman in MySpace case

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An upcoming panel at the ABA Litigation Section's Annual Conference on Friday, May 1 at 3:15 P.M. –"Is Your Data Secure?  Responding to Next-Generation Computer Crimes."  (see here) Panelists include Wesley Hsu (AUSA & Chief of the Cyber & Intellectual Property Crimes Section (C.D. Cal.), Susan Brenner (NCR Distinguished Professor of Law & Tech – U. of Dayton School of Law), Aaron Philipp(Navigant Consulting), and Aaron Danzig(Arnall, Golden & Gregory).

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Senators Rockefeller and Snowe have proposed extensive legislation on Cybersecurity.  

Michael L. Volkov (Dickinson Wright) provides a summary of that legislation – Download Volkov_-cyber_security

Legislation –Download S._773_Cybersecurity_bill

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The MySpace related case, a first case of its kind raises issues as to whether contract terms can serve as the basis for a violation of the Computer Fraud & Abuse Act (18 U.S.C. s 1030). For background information and the indictment, see here. Although there has been a verdict (no felonies), it is likely this case will be reviewed. See Ashley Surdin, Wash. Post, Woman Guilty of Minor Charges for MySpace Hoax. Scott Glover, LA Times, My Space Case Goes to Los Angeles Federal Jury raises the issue of whether this verdict will remain.

For a discussion of some of the issues raised here, see Derek Kravitz, Wash. Post, ‘MySpace Suicide’ Case Expands Web Law; Jennifer Steinhauer, NYTimes, Verdict in MySpace Suicide Case.

(esp) (w/ a hat tip to Gerri Moohr & Tiffany M. Joslyn, Research Counsel at NACDL’s White Collar Crime Project )

Addendum, Doug Berman, Sentencing Law & Policy, Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?

The federal indictment resulting from an incident on MySpace has been reported nationally. (see, e.g., here and here).  A press release of the U.S. Attorneys Office of the Central District of California states that:

"A Missouri woman was indicted today on federal charges for fraudulently using an account on the social networking website MySpace.com to pose as a teenage boy who feigned romantic interest in a 13 year-old girl. That girl later committed suicide after the ‘boy’ spurned her and told her, among other things, that the world would be a better place without her."

The Indictment charges a conspiracy to commit a violation of the computer fraud statute – 18 U.S.C. s 1030 and also specific substantive offenses under section 1030. Some are critical of the use of the computer fraud statute for this purpose (see here). Clearly, whether this alleged incident should be the subject of an indictment, and whether it should be subject to a federal indictment will likely be issues that will be considered in this case.

But in addition to questions of whether the computer fraud statute was intended for this purpose, there is also a question of whether the U.S. Attorneys Office in the Central District of California ought to be prosecuting this case. According to the indictment (see below), the basis for the jurisdiction is that Fox Interactive Media Inc. is the Beverly Hills Corporation which operates myspace.com ("MySpace").  As the server is located in LA County, the indictment notes that this is within the Central District of California.

This indictment raises a threshold question of where is the appropriate jurisdiction in computer related cases, and specifically in cases charging criminal conduct. Should it be the place of the keystroke, the place of the social harm, or can prosecutors go for jurisdiction, as they have here, to the place of the server?  Is it appropriate to give prosecutors the power to chose jurisdiction this way?  Does this disadvantage the accused in that their evidence may be located in the place where the social harm is alleged to have occurred and not where the server is located?  Does a prosecution such as this make the requirement of venue meaningless?  Interestingly, Missouri has since passed a cyberharrassment law (see here).

The indictment – Download my_space_lori_drew_indictment.pdf

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One of the hardest criminal activities to investigate and prosecute are cybercrimes and other activities that may be occurring via the WorldWideWeb.  The identity of the perpetrator can be difficult to discern.  Some of these crimes involve Intellectual Property. In 2007, the DOJ filed 217 Intellectual Property cases.  This fact was brought out by AG Mukasey would gave a speech this past week, in California, emphasizing that intellectual property crimes will be a major focus in the DOJ. Mukasey stated:

"To put it simply, the continuing worldwide escalation of counterfeiting and piracy poses a threat to both our economy and public safety. Since that threat comes from so many different directions, our response has to proceed on several fronts. We need strong and coordinated law enforcement efforts, both at home and abroad; we need robust intellectual property laws; and we need adequate resources devoted to IP law enforcement."

The DOJ has moved beyond its role as prosecutors to become teachers, as Mukasey states:

It’s imperative that countries work together on cases like these to ensure strong enforcement worldwide. To enhance that kind of cooperation, Justice Department lawyers have provided training and technical assistance to thousands of foreign prosecutors, investigators, and judges in more than a hundred countries.

Hopefully, there has been or will be comparable training to those who will be defending individuals charged with these crimes.

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A press release of the Attorney General of Virginia, announced that the Virginia Supreme Court upheld the nation’s first felony SPAM conviction.  Virginia’s Anti-Spam Act "prohibits the sending of unsolicited bulk e-mail by fraudulent means, such as changing the header or routing information to prevent recipients from contacting or determining the identity of the sender."  According to the press release, "such conduct is punishable as a class 1 misdemeanor or as a class 6 felony if any one of the following conditions applies:

The defendant in this case was sentenced to a term of nine years. 

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