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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Milwaukee Third Municipality to Pass Paid Sick Leave Ordinance

Medicalcare This past Tuesday, the voters of the City of Milwaukee overwhelmingly (68%) approved the sick pay ordinance. Under this ordinance, private employers in Milwaukee must provide paid sick leave to workers, who earn the benefit at the rate of one hour of sick pay for every thirty hours of work.

The Milwaukee Journal-Sentinel reports:

Employers would have to grant 72 hours of sick leave per calendar year or 40 hours if they have fewer than 10 employees.

Although the ordinance is due to take effect in about 100 days, the Metropolitan Milwaukee Association of Commerce has filed notice that it intends to legally challenge the law on the grounds that (1) it is inconsistent with federal and state laws for family and medical leave; and (2) oversteps the city’s authority to require sick pay from employers outside the city that have employees living in Milwaukee.

I am no expert on the second issue, but the first ground of challenge seems utterly without merit.  The federal FMLA and state leave law provide a floor under which no law may go, but states and municipalities have always been free to be more generous, and, in this case, provide some paid leave to workers.  The fact that the business group believes the ordinance will cause them economic harm is not grounds for setting the ordinance aside.

I am hopeful that the court deals quickly with this matter so that the ordinance can go into effect when scheduled and start providing much-needed relief for the workers of Milwaukee when they become sick.

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