US Prosecutor Wants To Appeal Lori Drew Ruling

from the really?--give-it-up... dept

Mon, Sep 28th 2009 3:56am — Mike Masnick

This is incredible. Apparently the US prosecutor in the bogus Lori Drew case, which the judge finally tossed out in August is looking to appeal the decision. It's up to the US Solicitor General as to whether or not that actually happens, but just the fact that the prosecutor is still pushing this case is ridiculous. It was clearly an attempt to twist a law (unauthorized computer access) well beyond what it was meant to cover in an attempt to bring Drew up on charges because people didn't like the end result of what happened, even though she didn't break the law. The judge tossed it out because of how ridiculous it was. Also, apparently the cases that the prosecutor relied on in pushing the original case have now been rejected as well, making the argument even more tenuous. What a waste of time for a US prosecutor.

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Filed Under: cyberbullying, hacking, lori drew, megan meier

23 Comments

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Anonymous Coward, 28 Sep 2009 @ 4:52am

technically, if you come over to my house, and i say you have permission to go in x room, y room, and z room, and only until 6pm, and you go into q room or stay past 6pm, you're criminally trespassing. you're exceeding the scope of authorization and unlawfully accessing some area.

the same is true with the CFAA -- if you exceed the scope of the ToS and still use the system, you're not authorized to continue to access it, and that's a plain violation of the CFAA.

for instance, let's say the defendant uses someone else's password who willingly shared it. if the ToS says no account sharing, under this rationale, the defendant is committing a federal crime. however, the CFAA was aimed more at the defendant who steals a password... regardless of what the ToS says.

it really comes down to intent. what the CFAA is aiming to ban is hacking -- guys who intend to subvert security measures. the fact that the defendant in the lori drew case violated the ToS was only incidental. she wasn't trying to gain unauthorized access.
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LoL, 28 Sep 2009 @ 5:04am

At least the guy is persistent if not that all bright.
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Ima Fish (profile), 28 Sep 2009 @ 5:09am

He might just be putting on a horse and pony show for the family's benefit. I've seen prosecutors do that on loser cases before.
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Skippy T. Mut, 28 Sep 2009 @ 5:29am

Get over it
The judge threw it out with good reason. As a public official being paid with tax payer money he needs to get over his personal feelings and move on. You lost, dude...it happens.
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mike42 (profile), 28 Sep 2009 @ 5:55am

Wait a minute...
Are you sure this AG has anything better to do? Just because St. Louis vies with Detroit as murder capital of the US doesn't mean that the AG has anything to do. And let's not forget, Ashcroft got his start in Missouri, before starting his singing carreer in DC.
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Legal Eagle, 28 Sep 2009 @ 6:03am

It's all right...
It's ok for him to appeal it. Decisions get appealed all the time. If he appeals and an Appelate court strikes it down, the precedent will all the more firm - at least in that district.

If not, the Appelate Court's decision can be appealed and the Supreme Court might weigh in on it...
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Anonymous Coward, 28 Sep 2009 @ 6:13am

The court system was not designed for such evilness as Lori Drew. It's time for some good ol MOB JUSTICE!
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Jon B., 28 Sep 2009 @ 6:24am

Re:
You'll need to show a precedent where someone was lawfully allowed into a home, allowed to stay and never told to leave, yet broke some "house rule" and still was charged for trespassing. Otherwise, you're argument is invalid.
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Anonymous Coward, 28 Sep 2009 @ 6:34am

Re:
There is NEVER a cause for mob justice.
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Chuck Norris' Enemy (deceased) (profile), 28 Sep 2009 @ 6:36am

Anti-bullying Laws
Too bad the rest of the goofball politicians are clamoring to pass anti-bullying legislation in their respective states. That way they can come down on the Lori Drews of the future. "For the children" of course.
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Anonymous Coward, 28 Sep 2009 @ 7:28am

Must be time for Reelection over their.
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Anonymous Coward, 28 Sep 2009 @ 7:38am

Re: Re:
become a lawyer. it's a textbook example in early torts and criminal law classes. this is why attorneys rarely come to non-attorney blogs like this. you're going on the offensive with something you know nothing about.
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Phillip Vector (profile), 28 Sep 2009 @ 7:46am

Re:
By that same logic, I can say "If you click the link to my site above, you owe me $1,000,000" and if you end up clicking it, then you are agreeing to pay me that money.

I will admit, I am not a lawyer (and by your later replies, you are saying you are), but I have yet to see one case that this is true.

If you can find me one, then I'll send you half of the money I get for your services. :)
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fatcat, 28 Sep 2009 @ 7:47am

Re:
thats what i'm talking about. the fater of the young girl needs to shoot the bitch!
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ChrisB (profile), 28 Sep 2009 @ 8:03am

Re: Re:
Contracts are only binding if there is an exchange of value between parties. It is called a consideration. That is why you must sell cars for at least $1, or else the contract is not valid.

If you just click a button on a website, it is only binding if they are offering something for your $1M. If they do offer you something (and they can prove you weren't duped) you DO owe them $1M. They may have trouble collecting, though.
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pmp888@hotmail.com, 28 Sep 2009 @ 8:36am

For crying out loud, Mike - Please go to law school, or spend some more time around lawyers talking about how the legal system works, so you can get a better idea of procedures and terminology. There is no "district attorney" involved in the Lori Drew case -- unless you count the one in Missouri who declined to try to prosecute her under state law. The federal prosecutors involved in this case are in the U.S. Attorney's Office (for the Central District of California, to be more precise). The specific prosecutor involved is an Assistant United States Attorney (AUSA) named Mark Krause. He's the senior career prosecutor on the case, although the actual US Attorney's name would be on the brief as well.

And as Orin Kerr points out in his post (but which your post glosses over), the government has 30 days after a ruling to file a notice of appeal. Filing one doesn't mean the government definitely will appeal, but it's necessary to preserve that option.

I'm with you on the substance of your post, and your attitude toward the case, but I mention this because it's not very helpful to have one of the top Google results for Lori Drew appeal" have some inaccurate text front and center.

And by the way, I really do mean that about law school. I know you're busy, and maybe it's unrealistic, but I'm guessing you'd be quite good at it.
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PRMan, 28 Sep 2009 @ 9:04am

Re: Re:
"There is NEVER a cause for mob justice."

Then I hope you don't live in the US. It was founded on mob justice.
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Mike Masnick (profile), 28 Sep 2009 @ 9:47am

Re:
There is no "district attorney" involved in the Lori Drew case -- unless you count the one in Missouri who declined to try to prosecute her under state law. The federal prosecutors involved in this case are in the U.S. Attorney's Office (for the Central District of California, to be more precise).

Yes, that was a mistake that's been fixed. There are nice ways to point out a mistake and obnoxious ways. Which did you choose?

And as Orin Kerr points out in his post (but which your post glosses over), the government has 30 days after a ruling to file a notice of appeal. Filing one doesn't mean the government definitely will appeal, but it's necessary to preserve that option.

And what did I write in my post? "It's up to the US Solicitor General as to whether or not that actually happens..." Right. Which means that the gov't won't necessarily appeal.
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Anonymous Coward, 28 Sep 2009 @ 11:32am

Re: Re:
Mmm, which did I choose? I think I took about the same tone you usually take when pointing out other people's mistakes. Sorry if you're offended by it, but please don't get too snippy - it wasn't meant to offend you, but to express frustration at avoidable mistakes that you/TechDirt shouldn't be making. It's not the first time that TechDirt posts have mischaracterized legal proceedings, procedures, or players. (I don't even think this is the first time that a federal prosecutor has been identified as a "district attorney".) I realize these are inadvertent mistakes or misunderstandings -- you're not purposefully trying to mislead anybody. But when you write that a "district attorney" is going to move forward on something having to do with the Lori Drew case, that causes people who've been following the case to perk up, because if that were the case, it would be really really big news -- it would suggest some sort of weird, new twist involving state authorities. It may not seem like a big deal, and in this case, it isn't -- most of us reading your story just assumed you'd misspoken/-written. But it's a rookie mistake -- not the kind of error you should be making, having covered so much legal news for several years now.

And in some cases, what may seem like little errors make a real difference in the substance of your posts. Recently, you made a point about a judge's ruling on a motion to dismiss (in the case involving claims against ratings agencies) in which you seemed to interpret the judge's denial of a motion to dismiss as a stronger endorsement of the plaintiff's theory than it actually was. While your post criticized the judge's ruling, it turned out you were OK with the case moving forward if there were evidence of real fraud. And, as discussed in comments to that post, in order for the case to move forward so that evidence of fraud could be offered, the judge had to let the case move forward. So that's a instance where you attitude toward a case, and the entire tone of your post about it, was (or could have been) dramatically affected by a deeper understanding of the legal procedures involved.

Understanding the significance of motions to dismiss, or the difference between dismissing a case vs. granting summary judgment vs. a verdict after a trial, isn't super-easy -- it takes little bit of study (either in law school, or even just poring over one of those "Nutshell" books). Knowing you from your writing and speaking, there is no question that you are far, far smarter than is necessary to understand those concepts. You're also quite good at explaining many tech-legal concepts in your posts, especially when it comes to bigger picture issues. You can certainly hold your own in debating big tech-policy and tech-law issues with the best and the brightest in the field.

Where there's a deficiency in your/TechDirt's coverage, it's in understanding some of the nitpickier details of the law. When one of your posts makes a minor mischaracterization, or you evince an insufficiently-deep grasp of, say, some line of First Amendment case law, it makes it tougher for you to get your argument across. It also makes it easier for someone like, say, Ben Sheffner to pounce on your mistakes or misunderstandings, and not confront the merits of your arguments. I find this especially unfortunate since I so often agree with you on the underlying substance.

That's why I wasn't kidding about suggesting you go to law school. Sure, you could sit down with a bunch of geeky lawyers and, before discussing whatever the big legal issue of the day is, get them to give you a quickie tutorial on some of the basics. But going to law school would give you a much more in depth understanding of some of these issues, and would be a heck of a credential (since you could then actually litigate one of these cases, or at least give legal advice to your clients).

Sorry if you took these comments as insulting, but they are honestly meant as constructive criticism from someone who greatly appreciates your blogging and other work on tech issues. So, in the nicest way possible, let me implore you to please (1) try (harder) to avoid making rookie mistakes on legal issues in TechDirt, and (2) at least *consider* law school, and (3) try not to be so defensive.
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angry dude, 28 Sep 2009 @ 1:03pm

Re:
You're a Douchebag.

Mike's too mature to say it. But I'm not. Go lick yourself.
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AC2, 28 Sep 2009 @ 1:05pm

Re:
Over their what?
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Anonymous Coward, 28 Sep 2009 @ 1:29pm

Re: Re: Re:
Textbook examples rarely have real life equivalents. Thus your argument still remains tenuous. You're going on the defensive about something you, apparently, should have at your fingertips. Oh mighty lawyer. Sorry, but scientific minds require proof.
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Mike Masnick (profile), 28 Sep 2009 @ 5:06pm

Re: Re: Re:
Fair enough. Appreciate the feedback.

I do try hard to avoid such mistakes, and often consult lawyers on certain legal questions. But little unimportant mistakes get through. And that's what I consider this to be. The vast majority of my audience doesn't care about the difference between a US prosecutor and a DA, and it's the sort of thing that someone points out quick enough and I adjust, and there's no problem there.

The blog has always been about getting my opinion out, and kicking off the discussion (and that means correcting little nitpicky errors like that). I try to avoid them, but honestly, is my time better spent figuring out of it's the DA or the USP... or in writing another interesting post? I'd argue the latter.

The only people who seem really upset by such mistakes tend to be the people who would never agree with me in the first place.

Again, I appreciate the feedback, and I take it to heart, but I'm not going to law school, and I'll probably still make such mistakes. And when they happen, point them out, and I'll change them, and we'll all be better off for it.
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