Rose speaks

Orin S. Kerr is an associate professor of law at The George Washington University Law School and a leading scholar in the subjects of computer crime law. Before joining the faculty at The George Washington University Law School, Kerr served as a law clerk for Judge Leonard I. Garth of the U.S. Court of Appeals for the Third Circuit. He later took a leave of absence from the law school to clerk for Justice Anthony M. Kennedy of the United States Supreme Court during October Term 2003. On September 30, 2008, Orin S. Kerr applied Pro Hac Vice to represent Lori Drew on a Pro Bono Basis.

As the Court requested on October 6, 2008 the legal team led now by Orin S. Kerry Responded on behalf of Lori Drew as requested by the Court, explaining she did not commit any “Theft” of property or information “owned” by MySpace.com. In part, the Supplemental Filing addressed, According to Judge Kozinski, unauthorized access statutes protect the privacy of owners of computerized information just as if trespass statutes protect the privacy of physical space. …By analogy, not all efforts to gain access to a computer using trickery or misrepresentation exceeds authorized access: The mistake must extend to the essential character of the act itself, which is to say that which makes it harmful or offensive, rather than to some collateral matter which merely operates as an inducement. In other words, it must be a substantial mistake concerning the nature of the invasion or the extent of the harm. “ The Supplemental filing goes on to state, “Under Theofel, violation of a Term of Service can only make an access unauthorized or in excess of authorization if the violation ‘go[es] to the essential nature of the invasion’ that 18 U.S.C. § 1030(a)(2) was designed to prohibit.

Violations of Terms of Service that involve “some collateral matter” other than “that which makes it harmful” may trigger liability for breach of contract, but they do not violate the prohibition on access without authorization or exceeding authorized access. … The Senate Report accompanying the 1996 passage of 18 U.S.C. §1030(a) (2) (C) explains that the essential nature of the invasion contemplated by the statute is interstate or foreign theft of information by computer. (“The proposed subsection 1030(a) (2) (C) is intended to protect against the interstate or foreign theft of information by computer.”).

Congress enacted § 1030(a) (2) (C) to effectively overrule the Brown decision. Under the new statute, interstate thefts of information from one state to another state would violate §1030(a) (2) (C) instead of § 2314:

This subsection would ensure that the theft of intangible information by the unauthorized use of a computer is prohibited in the same way theft of physical items are protected. To the extent any “theft” occurred, that theft was from M.T.M. in Missouri to the defendant in Missouri. It was “theft” down the street, not a theft of property in one state that was then transmitted to another state.

It would be a different case if the government claimed that the defendant had stolen property belonging to MySpace.com. MySpace’s servers are located in Los Angeles County, and a defendant who used the Internet from Missouri to steal information belonging to MySpace in California would be engaging in an interstate theft. This would be the kind of conduct that 18 U.S.C. § 1030(a) (2) (C) was designed to prohibit.”

In Response to the legal team for Lori Drew, the USA on October 6, 2008 filed its Supplemental as requested on September 23, 2008, by this Court. The governments filing addresses those three items the Court wanted to be briefed further on stating; “posed three questions to counsel: (1) Whether the Court could exercise its discretion to decline to assert jurisdiction over the case based on federalism concerns even if the allegations in the indictment regarding interstate communications were adequately pled and prove, ..(2) whether Section 1030 (a) (2) only prohibits the “theft” of information … (3) if so what was the information that was stolen.”

On October 7, 2008 the Joint Stipulation by the USA and Lori Drew lawyers, to have a hearing on the additional Responses of Explanations the Court Requested to be heard on October 30, 2008 and postponing the trial to November 18, 2008.

I agree as I continue to say that what Lori Drew did was despicable and she should become the poster for cyber bullying, however I do not think she can be prosecuted under the current laws. That still leaves the question, as you read these papers, of for those who came into the Rose Speaks.com email server as well as over 60 other accounts on the email server, because of a vulnerability, did they commit a crime under the existing statutes? Does it make it worse that they especially bragged on other forums they sent that information to a law firm for the sole purpose to give that firm an advantage in existing litigation?

Please pick up the most recent filings in our download section, open to ALL not just members of Rose Speaks.com.

©Rose Turner
October 9, 2008
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This entry was posted on Thursday, October 9th, 2008 at 3:06 pm and is filed under High Proflie Trials, Lori Drew, Orin S. Kerr, What legal responsiblity do bloggers have.You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.