Last week Lori Drew was convicted of accessing computers without authorization. As you may recall, she is the “mom” who created a fake Myspace profile posing as a teenaged boy in order to gain information from and to taunt a vulnerable girl. The hoax ended with the girl’s suicide. I use her designation as a parent loosely since parents are supposed to be the ones in the family who exercise a certain degree of judgment, who teach the next generation not to commit random acts of cruelty and that hurtful behavior ripples through their community in unintended ways.
In spite of my personal feelings about her actions, I worry more about the way she was convicted. At the time, Ms. Drew’s home state did not have an appropriate cyber bullying law in place. Federal authorities in California stepped in with charges for unauthorized computer access—Myspace servers in California accessed in violation of the Myspace terms of use.
One danger of this type of criminalized contract violation is that potentially criminal behavior is determined and drafted by corporate attorneys in legal departments across the country rather than those elected to do it. The result is an infinite number of websites with their own unique terms of use, not one of which is actually read by those subject to criminal liability for their violation. Those hundreds of attorneys who think they are drafting boilerplate language are actually acting as “branch office” senators.