If The Drew Fits, Charge It?

Being fascinated with both the use (and misuse) of technology and criminal law in general, I have been intently following the Lori Drew case. For those of you who haven’t, however, Drew is the Missouri mother who — as a response to some animus between 13-year-old Megan Meier and Drew’s daughter — created a false persona, “Josh Evans,” on Myspace to flirt with and gain the trust of Meier, then insulted and demeaned her to the point where Meier committed suicide. Missouri state officials reviewed the case, but felt that there was no appropriate state statute under which to bring charges against Drew; federal prosecutors in Missouri declined to charge the case for similar reasons. However, federal prosecutors in California (where Myspace’s servers are located) disagreed; claiming jurisdiction, they charged and were subsequently able to indict Drew under 18 U.S.C. § 1030, the Computer Fraud and Abuse Act (CFAA). Specifically, the U.S. Attorney’s Office in California is charging her with violating 18 U.S.C. § 1030 (a)(2)(C), which makes it a crime for anyone to

intentionally access[] a computer without authorization or exceed[] authorized access, and thereby obtain[] . . . information from any protected computer if the conduct involved an interstate or foreign communication.

The indictment can be found here, if anyone is interested in reading it, but the gist of the argument that the AUSAs in California are making is that by giving fictitious profile information, Drew violated Myspace’s Terms of Service, thus “exceeding” the access authorized by Myspace. Then, as she used this fictitious profile to “obtain information” from Myspace’s servers — personal information about Megan, as best as I can tell — to commit the tort of infliction of emotional distress upon Meier, and since to access Myspace’s servers she was required to send packets of data across state lines, she met all the elements of the crime.

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Seventh Circuit Week in Review

The Seventh Circuit had two new opinions in criminal cases this week, with the government winning both.  (Since I started this Week in Review series three weeks ago, the government has gone 10-0 — an even better run than the Tennessee Titans have been enjoying.  Let’s hope the Packers don’t have the U.S. Department of Justice coming up on their schedule!) 

In United States v. Anderson (No. 07-3654), the court considered a bank robber’s request for appointment of an expert to evaluate his mental health.  The district court had denied the request, and the Seventh Circuit (per Judge Posner) affirmed.  Normally, we think of mental health evaluations in connection with the insanity defense or determinations of competency to stand trial, but Anderson wanted an expert to help him advance a sentencing argument, specifically, that he suffered from diminished mental capacity at the time of his bank robbery.  (And the fact that he did rob a bank provides prima facie evidence of diminished capacity: bank robbers are successfully apprehended at a much higher rate than most other criminals.  As I tell my students, if you want to steal money, there are a lot smarter ways to do it than to rob a bank!) 

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Seventh Circuit Week in Review

The Seventh Circuit had a busy week, with six new opinions in criminal cases. The government won all six.  I’ll provide just a brief description of each.  At the outset, though, it is interesting to note that five of the six involved gun charges.  Even in the wake of the Supreme Court’s recognition of an individual constitutional right to possess firearms in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), it still appears to be business as usual in the world of gun prosecutions.

In United States v. Whitaker (No. 08-1259), the court (per Judge Ripple) affirmed the defendant’s conviction of being a felon in possession of a firearm.  On appeal, Whitaker argued that his Fourth Amendment rights had been violated by the search of his car that turned up the incriminating firearm.  The search followed two 911 calls, in which tipsters alerted police to an altercation in a parking lot.  One of the tipsters further indicated that a man involved in the altercation was carrying a gun.  When police officers arrived on the scene, they found Whitaker and (after a search of Whitaker’s nearby parked car) the gun.  In seeking to have the gun suppressed, Whitaker relied on Florida v. J.L., 529 U.S. 266 (2000), in which the Supreme Court held that stopping an individual solely on the basis of an anonymous tip usually falls beyond the bounds of reasonableness.  However, the Seventh Circuit distinguished J.L. based primarily on the fact that the tipsters in Whitaker alterted police to an ongoing altercation; “when the police respond to an emergency as a result of a 911 call, the exigencies of the situation do not require further pre-response verification of the caller’s identity before action is taken.”

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