Eric Goldman on the Lori Drew Case
Former Marquette law professor Eric Goldman is posting a three-part series on his blog on the Lori Drew/Myspace “cyberbullying” case, in which the prosecution won a conviction based on an extremely broad interpretation of the Computer Fraud and Abuse Act. Basically, Drew was convicted of a misdemeanor for violating MySpace’s terms and conditions. Goldman is always worth reading on these matters; I cite him explicitly to my Internet law students every year for the proposition that if you can’t demonstrate $5,000 of “loss” under the CFAA, you’re just not thinking hard enough.
Part 1 of Goldman’s series discusses the possibility that, under the prosecution’s theory, ISPs may lose their Section 230 immunity for the activities of users if those users violate the terms of some other website. Part 2 looks at the question of whether someone who does not actually click on a click-through agreement can nevertheless be bound by it. Courts in the few non-criminal cases to consider this have essentially said “yes.” Part 3 will offer suggestions for drafters of website terms. [Update: Part 3 is now up.]
In other news related to the case, the defense, assisted by George Washington University law professor Orin Kerr, has filed a supplemental brief on its motion to dismiss, on the question of whether violation of contractual terms vitiates consent for purposes of a criminal unauthorized use statute. In true Internet law fashion, they look to the nearest litigated real-world analogues, in this case rental car agreements.
