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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SCOWIS to Consider Scope of Ministerial Exception

Earlier this fall, the Wisconsin Supreme Court granted a petition for review in Coulee Catholic Schools v. Labor and Industry Review Commission. The decision below is here. 

The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.

The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”

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Appreciating Our Professors: Dan Freed

Yale Law Professor Dan Freed has undoubtedly been the biggest influence on my own career as a law professor. I had him for a year-long sentencing course during my third year — a course that was a descendant of the legendary Yale Sentencing Workshop that Dan helped to organize in the 1970’s. The Yale workshop brought together lawyers, judges, policymakers, law professors, and law students for intensive discussions about the sentencing process. A proposal emerging from the workshop caught the attention of Senator Ted Kennedy, who used it as the framework for a major sentencing reform bill. Eventually enacted (with several important modifications) as the Sentencing Reform Act of 1984, the Kennedy bill created the United States Sentencing Commission and the Federal Sentencing Guidelines.

By the mid-1990’s, when I had him as a teacher, Dan had become an outspoken critic of the Commission and the Guidelines. However, his course still reflected his faith in the value of bringing together people with diverse perspectives to talk to one another in a rational, mutually respectful manner about sentencing law and policy. Thus, we had a parade of fascinating guests in the course: judges, prosecutors, defense lawyers, probation officers, law professors, a sociologist, a Senate Judiciary Committee staffer, and others. Taught seminar style, the course included many lively, memorable conversations with our distinguished guests. The experience sparked what has become a long-term interest of mine in sentencing — a subject that I now teach and write about regularly. In fact, the paper I wrote for Dan’s course became my very first law review article. I’ve stayed in touch with Dan (now retired) since then, and have benefitted from his counsel at many turns.

Dan has been a model for me in several respects.

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