Rose Speaks.com will be updating this weekend for the BLOG part only. The blog main data base will be rolled back and changed over at about midnight [Sunday December 28], IF the current theme works then all will go smoothly, if not it will be a tad bumpy through part of Monday. Yes we did not finish on Saturday night so it is being done tonight [Sunday] If the blog is down a few hours late at night never fear the full blog is always saved in a roll back database. We will also be adding some new features like a much easier category section, and a translation into several other languages we have been asked to add. We hope we keep improving and you keep stopping by to read.

We thought we might add this bit about cases, old and new ones you have told us you would like Rose Speaks.com to follow. If you want something added to this list, please post it here and let us know.

Casey Anthony – Caylee Anthony – George and Cindy Anthony – Lee Anthony - Anthony case.

The Mike Corona case out of Orange County California, and the interwoven cases that have all come from this case (I.E. Don Haidl and before Corona’s case how it relates to Haidls’ son’s case, And the tail of the two Debbies)

Illinois Governor Rod Blagojevich and his staff and family as they all began to lawyer up.

Dr. Cyril H. Wecht - Because you just can’t make this up, the government needs help in a change of venue to “convict” the doctor on the second go round, cause the people love him.

D. C. Madame, Deborah Palfrey and her Estate.

Henry T. Nicholas III - California Billionaire, just had to allegedly possess and with intent to distribute drugs, with secret rooms beneath his homes. You have to just love California and what they bring to us, last year Anthony Pellicano and this year Henry T. Nicholas III.

The Hogan family’s continued problems and associated lawsuits.

Michelle Braun, Millionaire Madame and her Client list you are not going to believe who all is included and those she intends or might take down with her unlike the D. C. Madame, Deborah Palfrey.

Lori Drew, the ultimate case of cyber bullying and what her conviction is going to do to the rest of the nation in new laws.

A couple of Rock Bands just to spice things up here on Rose Speaks.com with people who know them well and are willing to give us their take on the current woes a couple of these bands find themselves in.

Thanks to Sprocket the ongoing Phil Spector trial in California, take two.

Roland Carnaby Civil Rights case from Houston Texas of an alleged CIA or FBI operative gun down, who died from gun shot wounds causing death due to blood lost, and why no one is standing trial for this death listed as a “homicide”.

Two Yale Law Students who decided to sue anonymous blog posters for defamation and what this also might generate in online defamation and/or law changes.

New Cases that catches the attention of John J. Nazarian P. I. – Security Consultant, whatever catches the fancy of Mr. Nazarian, we hope he will share with Rose Speaks.com.

All things Anna Nicole Smith related as many of those trials come to an end in 2009. Which by the way the New York Judge has granted Howard K. Stern’s legal team’s request for more time to answer Rita Cosby’s Motion for Summary Judgment. The new date due is February 6, 2009, based on that all of the paperwork filed by Elizabeth McNamara on December 15 was wrong and so had to be refiled on December 19, 2008.

If there is a case you would like to see us follow, let us know, and if we can we will. If you would like to follow a case and write articles for the blog, we welcome you, just drop us an email.

There will be a new article up on Casey Anthony today, and debunking of the blond ambitious, Cosby’s book will be up before the stroke of midnight on December 31.

©Rose Turner
December 27, 2008
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.

Please also read our Terms of Use and our Privacy Policy.

Tags: Anna Nicole Smith, Casey Anthony, Caylee Anthony, Deborah Palfrey, Dr. Cyril H. Wecht, George and Cindy Anthony, Hachette Books, Henry T. Nicholas III, Howard K Stern, Hulk Hogan, Illinois Governor Rod Blagojevich, John J. Nazarian P. I., Lana Clarkson, Lee Anthony, Lin Wood, Lori Drew, Michelle Braun, Phil Spector, retrial, Rita Cosby, Rod Blagojevich, Roland Carnaby, Roland Carnaby Estate, Rose Speaks.com site maintenance, Rose Speaks.com site updates, Sprocket, Susan Carnaby, The D. C. Madame, The Hogan family

In Los Angeles California, today will begin the trial of Lori Drew for “Violating the Terms of Service of My Space.com”. When you read that sentence, I think we all go WTH, violate the terms of service of an internet site and go to jail? Yet in the Landmark case of the government vs. Lori Drew that is exactly what is happening and it could change the internet world forever.

Prosecutors in Los Angeles will try to prove that Drew knew she was breaking the Terms of Service of the social networking website MySpace.com by creating a fictitious 16-year-old heartthrob named Josh Evans to woo, then humiliate a minor girl to the point she killed herself. The ultimate Cyber Bully, but is this trial fair to the rest of us that could be affected forever by this case.

As a headline in a newspaper in Australia said yesterday, this could result in something to the affect of, “Say goodbye to anonymity on the web.” The online paper goes on to say:

“So what did they charge with?

How about ‘conspiracy and fraudulently gaining access to someone else’s computer’.

Yup … that’s it and as much of a twist of the laws as it might be this is exactly what they got indictments against Ms. Drew which has more than a few legal scholars a little worried. The one thing that was in Lori Drew’s favour though was that the judge hearing the case had originally said that any evidence relating to … suicide would be excluded from the trial. Considering that the young girl’s death had nothing to do with whether any computer fraud laws were broken this made sense.

Unfortunately, though the judge has now reverse his decision and this evidence will be allowed. In light of how emotionally charged this whole matter is evidence such as this will make it very hard for a fair trial to be heard on the charge of computer fraud; as that is the only charge against Lori Drew.

So how does this affect any use of anonymous accounts or aliases?”

After months of many of us saying that this was a horrible example of an adult bullying a child but it did not meet the criteria of the Computer Fraud and Abuse Act and would never see a courtroom we have now been proved wrong and the trial of Lori Drew begins today. In recent weeks U. S. District Judge George Wu appeared to have agreed with most of our armchair take in this with his initial hints of rulings to be expected with comments leaning toward either dismissing the case outright or barring prosecutors from mentioning the death of the minor child. However, on Friday, Judge Wu stunned a globe of sites/forums/blogs following the case by deciding that the case would go forward, suicide and all. In an irony he mentioned a Law and Order television program on NBC called SVU that had a segment last week based on the Lori Drew case.

Dean Steward, Drew’s lawyer had said that if the suicide of the girl was allowed into the trial that the jury would convict his client, himself and anyone sitting near him. Perhaps he maybe closer then he might think in that assessment with the Pro Bono Expert Orin Kerr deciding he could not attend the trial citing that this is the last week of classes at George Town University on the East Coast after paying the fee to appear Pro Hac Vice to represent Drew.

The case against Drew marks the first time the Computer Fraud and Abuse Act has been used to pursue allegations of cyber bullying rather than computer “hackers”, those whom have intentionally access a computer without access or exceeds the access they know they have to take something from that computer or network.

State and local governments have passed laws to address cyber bullying, in part out of frustration after local, state and federal prosecutors in Missouri stated they could not find a statute to try Drew under. NO ONE is claiming that cyber bullying is not a horrible phenomenal effect on the world web net where anonymity is the rule of the day and thereby allows bullies to do things they would seldom think of doing face to face. There are federal laws pending in congress to address cyber bullying now pending for the new congress to take up next year.

Why is Drew then being tried in Los Angeles? Federal prosecutors in Los Angeles tried the computer fraud approach, claiming jurisdiction because MySpace.com’s computer servers are in that court’s district.

The statute being used has been challenged so extensively in pretrial motions that many of us have predicted the trial would never take place and more people on the internet then ever before understands what “hacking” is. It does not mean what many of us thought of the old vision of someone “hacking” into a site to take it down so in that respect this case has served as a teaching tool to millions of internet users.

Per one of the best articles outlining the case out of Saint Louis, Missouri, it restates in easy to understand language the basis of what the government has to prove including all four parts of the Computer Fraud act of:

“That Drew “intentionally accessed a computer without authorization or in excess of authorization.
That the access involved interstate communication.
That Drew obtained information that way.
That it was done “in furtherance of a tortious act in violation of the laws of any State.” In this case, the alleged tort is the intentional infliction of emotional distress, with the suicide as proof.”

The government’s case hinges on the fact that Drew violated the MySpace “terms of service,” which prohibit lying when registering, or soliciting information from someone under 18 and/or harassing other users. As we have noted almost all sites, including Rose Speaks.com has Terms of Service and a Privacy Statement as does others sites examples of TMZ.com, MySpace.com, Topix.net and thousands of other online forums/sites/blogs.

The article in the Saint Louis papers states in part, “To prove the elements of emotional distress, prosecutors normally would have to show the conduct was intentional and “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

If Drew is convicted, each charge carries a potential penalty of five years in prison. Judge Wu did rule however that the jury could find her guilty of a misdemeanor charge of unauthorized access to a protected computer that would mean much less than a year, and possibly probation for Drew.

The girl who committed suicide father, Ron Meier, is in Los Angeles, where he says he will stay until the end of the trial.

Per the Saint Louis newspaper article, “Meier did say that a guilty verdict and even minor punishment would be enough if it came with a broader awareness of cyber bullying.”

I think we all hope that laws that fit the crime as many here at Rose Speaks.com knows address cyber bullying. It has become almost insane in nature as to how some of our members and moderators have been stalked online and have had everything about their private lives that can be dug up put out on the internet to scare and/or harass them.

We are hoping one of our Los Angeles Court Watchers will be writing on this case from inside the courtroom this week so stay tuned to Rose Speaks.com for the latest in coverage of the USA vs. Lori Drew.

You can pick up all of the papers in the Lori Drew Case in our download section Opened to ALL not just registered members.

©Rose Turner
November 18, 2008
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.

Please also read our Terms of Use and our Privacy Policy.

Tags: Computer Fraud and Abuse Act, Cyber Bullying, Dean Steward, Josh Evans, Judge George Wu, Judge Wu, Lori Drew, MySace.com, MySpace Cyber Bully case, Orin Kerr, Orin S. Kerr, Ron Meier, TMZ.com, Topix.com, U. S. District Judge George Wu

In papers filed through yesterday, November 12, it appears that alleged Cyber bully, Lori Drew seems headed for trial on November 18, just a few days from now.

The AP reports on the hearing held on Monday November 10 that, “Prosecutors in the trial of a woman accused of a MySpace hoax that allegedly led a 13-year-old girl to kill herself will likely be prohibited from presenting evidence of the suicide, a federal judge said Monday.

U.S. District Judge George H. Wu told attorneys he was leaning toward excluding the evidence from the trial of Lori Drew, who is accused of using a fictitious profile on the social networking site to drive …her daughter’s former friend, to hang herself.

Drew has pleaded not guilty to one count of conspiracy and three counts of accessing computers without authorization.

‘I don’t necessarily think the suicide is relevant to the crime charged,’ Wu said, adding he thought details of the … [girl's] death would unfairly prejudice the jury. He said he planned to announce his final decision Friday, November 14”.

This will be the first alleged case of Cyber Bullying to be tried under the Computer Fraud and Abuse Act, Section 1030 (a) (2) of cyber crimes. This will also be the first time that violating a site’s TOS/Term of Use is without stealing some type of information will be used under the statute. The government has argued that this is applicable due to the part of the statute that states, “the section … provides: any person who intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer if the conduct involved an interstate of foreign communication … shall be subject to a fine, imprisonment or both.”

Could this case forever change the internet and users of forums/blogs? Will the government be able to fine a jury that has not read about this case and its tragic end? Can any juror completely disregard that this case was brought because of a minor’s suicide? Without the tragedy of the suicide this becomes just another case out of thousands each year of some person violated the TOS of a site and either enters a site without authorization or exceeds authorized access, and that it crosses state lines. Much like what happened here at Rose Speaks.com a few months ago. Of course that did not end in anyone’s death but did lead to online identity, theft of monikers, email address and with a few of our members had passwords stolen.

If this case goes forward and Lori Drew is convicted then the whole internet will have to begin to enforce TOS/Terms of Use on ALL sites. Many of us begin to tighten up and enforce the most outrageous violations, Court TV closed it forums, TMZ.com began to ban some users who violated their TOS, and we try to always enforce our Terms of Use. Topix.net appears to be the last anything goes Wild West of the internet. Since they are located right next door to My Space, well at least in the same community as TMZ.com is, will that last frontier began to enforce their own TOS?

Many of us are heartsick over the young girl’s tragic death and this alleged outrageous cyber bullying by an adult, Lori Drew, on a child. However most site owners I predict will be watching the trial next week very closely because of the broad ramifications it could have on all forums and blogs. Can you imagined the extra employees and hours expended on sites like TMZ.com and Topix.net if Lori Drew is convicted. Ultimately, this trial will come down to the violation of a site’s TOS.

Personally I did not feel it would get this far even in the court system, and Judge Wu has indicated he wants to hear from My Space.com employees as to can you prosecute someone that you cannot prove read and understood the TOS of a site like My Space.com. Judge Wu has also indicated that he wants to know what Lori Drew stole from MySpace.com in order to prosecute her under the Computer Fraud and Abuse Act, Section 1030 (a) (2) of cyber crimes. Both of those I predict will be high thresholds for the government to prove.

In another irony in this case, Lori Drew filed to have a “bench trial”, Judge Wu only hearing and deciding the case, and it was the government who filed not waiving their right to a jury trial. Could that signal that the government knows it has a weak case and needs the sympathy of a jury for hope for a prosecution. You add to that the fact that the Court might exclude the minor’s suicide and that leaves the case pretty mundane, in my opinion.

Please don’t mistake that I think this case should not go forward or that I don’t care about what happened to that child. If what is alleged that Lori Drew did is correct then her acts are despicable, but do they meet the criteria of “hacking”, “intentionally accesses a computer without authorization or exceeds authorized access”.

I hope this tragic case brings some self-patrolling by forum/blog site owners to pledge that they will enforce the TOS that almost all of us require you sign you have read and agreed to on ALL sites. In my opinion that would be a fitting memorial to one of the worse cases of cyber bullying, any of us have ever heard about.

Rose Speaks.com will be following this case, trial and appeals if any through the completion beginning on November 18.

You can pick up the newest filing today on USA vs. Lori Drew in our download section which is open to ALL, not just registered members. BE AWARE SOME OF THE INFORMATION IS VERY DISTURBING ESPECIALLY THE COMMENTS OF LORI DREW ABOUT THE COMMUNICATIONS TURNING INTO SEXUAL CONTENT.

©Rose Turner
November 13, 2008
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.

Please also read our Terms of Use and our Privacy Policy.

Tags: "alleged" cyber bullying of Lori Drew, Cyber Bullying trial of Lori Drew, Lori Drew, Lori Drew goes to trial on death of teen, USA vs. Lori Drew

There were new filings in the USA vs. Lori Drew in the California Federal Court hearing the case including the October 14 Application for records of another minor girl.

An Application for an Ex Parte Application of a Subpoena Deuces Tecum to Sprint Cell phone records was requested to be Court Ordered on October 14 by Lori Drew’s defense team. It appears that after receiving the mirror of the hard drives from the FBI, the defense forensic expert examined the mirror copy of both the Drew computer hard drive and the M. family’s hard drive, and has concluded that M.T.M. was not the sender of one of the messages that the USA is basing their case on.

The Subpoena Deuces Tecum is to get the cell phone records from Sprint to find another minor girl with the initials of S.D. who actually sent the message, in question, in the indictment to the fake “Josh Evans” Myspace.com account.

A Stipulation of Protective Order by the parties concerning the court-approved subpoena to St. Joseph’s Hospital in Lake St. Louis, Missouri of the minor M. T. M.’s records was also presented to the Court for its approval on October 14.

On October 15, 2008, the Court issued an Order Resetting the Trial Date to November 18, 2008; however, the hearing on the Motions to Dismiss is set for October 30, 2008 at 8:30 AM and the Court has Ordered that defendant, Lori Drew, be present.

The renown specialist on the internet Orin Kerr, attorney, was granted Pro Hac Vice status by the Court after his application to be part of the legal team representing Lori Drew, his application says he is defending her on a Pro Bono basis.

I still predict this case will never go to trial because although Lori Drew violated My Space.com TOS, she did not still anything, and now with a top attorney that specializes in computer law, I see them beginning to chip away at the government’s case.

All of the documents for this case are available in our download section, OPEN to ALL, not just members of Rose Speaks.com.

©Rose Turner
October 19, 2008
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.

Please also read our Terms of Use and our Privacy Policy.

Tags: Cyber Bullying, Lori Drew Cyber Bully case, Lori Drew Cyber Bullying Case, Lori Drewn, My Space Cyber Bullying suit

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
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.

Please also read our Terms of Use and our Privacy Policy.

Tags: Cyber Bullying, Lori Drew, Lori Drew Cyber Bullying Case, Orin Kerr, Orin S. Kerr

In a Court Order and minutes on September 23, the Court is not sure the USA can prove that Lori Drew “stole” anything with her violations of the MySpace.com TOS.

The Court asked the USA and for Lori Drew’s lawyers to extend Drew’s trial date from October 7 to a date in the future by agreement and to notify the Court of that joint decision. The Court is also asking for brief to explain what did Lori Drew “steal”, that is what a lot of us have been saying is what will become the focal point of having this case dismiss.

What Lori Drew is horrid, but she did not steal email addresses, user names, password, nor committed identity theft. The existing laws do just not cover Cyber Bullying, nor did Lori Drew in my opinion steal anything, which is a basic for the Cyber Crime statutes, other than stalking which Ms Drew was NOT accused of doing to the young girl.

The USA prosecutors have also filed two Motions to exclude evidence used in Missouri in both state and federal investigations. They want it excluded either because of the “hearsay” provision or that what those entities used as evidence to in Missouri to make the determination there was nothing that they could do with existing state or federal laws in this situation.

I still predict as sad as what Lori Drew did this case will be dropped and the U. S. Congress will need to broaden or enact laws on Cyber Bullying.

You can read all of the documents involved in this case in our download section open to ALL not just members of Rose Speaks.com.

©Rose Turner
September 29, 2008
All Rights Reserved, do not reproduce in whole or in part without the express written consent of the author.

This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.

Please also read our Terms of Use and our Privacy Policy.

Tags: Lori Drew, MySpace Cyber Bully case, MySpace.com

During a hearing on September 4, the California Federal Criminal Court, Judge Wu, issued decisions on two of three Motions to Dismiss by the defense team of Lori Drew.

The Court ruled that the USA [government prosecutors], had met the burden of proof under two of the defenses Motions to Dismiss. Those two was the “Defendant’s Motion to Dismiss Indictment as the Unconstitutional Delegation of Prosecutorial Power”, which was DENIED by Judge Wu on September 4. The other was the “Defendant’s Motion to Dismiss Indictment for Vagueness”, which was also DENIED by Judge Wu. The Court took under advisement the “Defendant’s Motion to Dismiss Indictment for Failure to State an Offense”. Those present in the court have reported the judge’s only question on that final “Failure to State an Offense”, was could the USA prosecute Lori Drew if the government cannot prove that Lori Drew specifically “read MySpace.com Terms of Service/Use”.

The Court is going to issue its ruling on that in the next few days. However, if the minutes of the hearing released on September 5 as well as a Subpoena for the young girl’s medical records are any indication added to the fact the Court did not continue [reset or put on hold for the time being] the pretrial hearing on September 23. The Court as well stated in the Court’s Minutes that the Trial date of October 7 was still on the schedule. That has led to the thoughts that the judge is going to allow the prosecution to go forward with USA prosecution case and the trial of Lori Drew.

The conspiracy theory is based on the government’s argument that the government must prove in order to go forward with the trial the following under the Computer Fraud and Abuse Act [CFAA]:

1. That Lori Drew with others “conspired to access protected computers without authorization in violation of the 18 U.S.C. § 371”.
2. That “accessing the protected computers without authorization to obtain information to further a tortuous act in violation of 18 U. S. C. § 1030(a) (2)

The government maintains that the “terms “access” and “unauthorized” are not so imprecise that people of common intelligence must guess at the meaning stating that both can and have been applied in common sense fashion such that the statue itself places individuals on notice of prohibited conduct and is sufficiently definite to protect against arbitrary enforcement”. The Court agreed with the prosecution on this issue heard before the court on September 4.

The prosecution appears to have met its burden that the CFAA covers “cyber bullying which is a relatively new phenomenon, as is social networking.” The government maintains that “Congress specifically envisioned that statute as a tool to address all manner of cyber crimes”. The government in it’s argument, which the court agreed with, pointed to a case involving a student of the University of Texas. In using that case the prosecutors stated in part; “that conviction being upheld by the firth circuit of appeals stating, [c]ourts have … typically analyzed the scope of a user’s authorization to access protected computer on the basis of the expected norms of intended use or the nature of the relationship established between the computer owner and the user.” [United States v. Phillips, 477 F 3d 215, 219 5th Circuit 2007]. “Accordingly, some courts have concluded that when users access computers in violation of rules established for the user of those computers, the access is unauthorized.”

The Court agreed that the Section 1030 (a) (2) is applicable only where unauthorized access is used to obtain information. The prosecution presented the argument that, “Unauthorized access to obtain information from any protected computer if the conduct involved an interstate or foreign communication”.

The government quotes in section 1030 that Lori Drew is being tried under the following section for 1030 (a) (2):

“the section … provides: any person who intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer if the conduct involved an interstate of foreign communication … shall be subject to a fine, imprisonment or both.”

In addressing the “Defendant’s Motion to Dismiss Indictment as the Unconstitutional Delegation of Prosecutorial Power”, the government stated that the statute’s content demonstrates there is no implicit delegation. Section 1030 instead sets forth several elements that must be met before criminal liability will be imposed:

“First: The defendant intentionally committed the unauthorized access to a computer; or intentionally exceeded authorized access to a computer; or intentionally accessed a computer with;

Second: The defendant’s access of that computer involved an interstate or foreign communications;

Third: By exceeding authorized access to a computer, the defendant obtained information from a computer used in interstate or foreign commerce or communication;

Fourth: The defendant obtained the information to further a tortuous act.

One type of tortuous act that the government is using to prosecute this case, is intentional infliction of emotional distress. There are four additional things that the government would have to prove to show that defendant obtained the information to further a tortuous act:

First, the defendant acted intentionally or recklessly
Second: the defendant’s conduct must be extreme or outrageous
Third: the conduct must be the cause of
Fourth: extreme emotional distress

In relation to using the My Space.com website TOS to prosecute Lori Drew the government stated that most of the facts relevant in a prosecution under Section 1030 (a) (2) have nothing to do with the website owners.

Those facts that the government must show, therefore, exist independently of any website operator and demonstrate there is no delegation of authority.

Nor does it matter that Section 1030 criminalizes “unauthorized” access to protected computers. “The fact that the statute looks to what a website operator identifies as “authorized”, as opposed to “unauthorized access,” makes it no different from a host of other statues that likewise proscribe conduct by reference to what a private party authorizes or consents to: State trespass laws, for example, criminalize conduct where the trespasser lacks the permission of the property owner to enter onto the property.”

The prosecution attacked the defendant’s Motions to dismiss stating in part; “The essence of defendant’s argument appears to be that written terms of service are somehow different. They are not. Property owners often post signs outlining conduct that will result in ejection (backed with a call to law enforcement)”.

“.. the implication of defendant’s argument appears to be that website operators should not be allowed to regulate the use of access to their web sites; however, if the operators of web sites cannot identify what conduct on their property is “authorized” or, by implication, “unauthorized,” they become hostage to the whims of users, no matter how detrimental to the online communities they may wish to sponsor.”

The government’s position went on to address using the violations of My Space.com TOS to prosecute Lori Drew stating; “Although their property, defendant would deprive website owners from being able to control conduct at their websites. After all, although defendant repeats a parade of horribles related to creation of arbitrary terms of service, an alternative world which website operators could not rely on enforcement of their rules to prevent people from using the their sites to “harass, abuse, or harm” others or to seduce children would be an undesirable one indeed”.

Indeed the government disagrees with the assumption underlying defendant’s series of hypothetical. Although defendant describes a series of websites and calls them “public,” to the extent the owners of those websites seek to restrict access, enact safeguards to restrict access (including sign-in pages that require prospective users to agree to terms of service), and put the users on notice of the rules governing the website, their website cannot truly be considered “public”. Nor should it matter that the websites are attractive to prospective visitors, even if only to see why they are excluded. How strange it would be if the homeowner whose view of the ocean is the envy of others could not exclude outsiders traipsing across his property because the property was “too attractive” for people to help themselves from intentionally entering his property without permission.

The prosecution in it’s filings list cases that support the prosecution of Lori Drew for violating My Space.com TOS. Stating, “The plain terms of the statute allow a prosecution of a defendant who lies to gain access to a computer and intentionally violates the rules established by a computer’s owner for the use of that computer for the purpose of committing another crime or tortuous act. This plain reading of the statute has been embraced by courts throughout the United States, and is consistent with the statute’s legislative history. Through its development and continual expansion of the statue, Congress demonstrated its desire to address through Section 1030 the newest cyber crimes, of which cyber bullying is just one of the latest.”

The prosecution addresses the concerns of it prosecuting Lori Drew in violations of her First Amendment Rights as follows. “Second, Section 1030 does not implicate any First Amendment rights. The statue does not proscribe speech… it proscribes conduct. Specifically, a felony violation of section 1030 (a) (2) (c) requires the government to prove that:

“1. A defendant intentionally accessed a computer without authorization or in excess of authorization; 2. To obtain information 3. To further a tortuous act; 4. In addition to other jurisdictional requirements. But even if the conduct the statue proscribes is tangentially related to speech that would not justify dismissal. Courts have repeatedly recognized that there is no privilege to trespass in order to exercise First Amendment rights. Nor does the constitutional avoidance doctrine apply because no First Amendment rights are implicated and, in any event, there is no ambiguity that could invite the application of the canon of construction.”

The government also won the argument that TOS such as MySpace.com can be prosecuted under the CFAA. The government quoted part of the MySpace.com TOS as the following:

1. “Criminal or tortuous activity… Including copyright infringement…
2. “Using any information obtained from MySpace.com services in order to harass, abuse, or harm another person.
3. “soliciting personal information from anyone under 18”
4. “harass[ing] or advocate[ing] harassment of another person…
5. promot[ing] information that the member knows is false or misleading; and
6. using a photograph with out a person’s consent.

I suggest that all of you read the terms of service/use of the sites you post on, including TMZ.com, Topix.net and our site. We like other sites, (I. E. MySpace.com) when we update our TOS on the site, makes it mandatory when you sign onto the main site to read the newest version of our TOS and to agree to them. I look for more sites to be doing this as well as we post a link to our TOS at the end of each article now.

What if someone accesses a website via a proxy to not be “traced”; harvested information from the website in violation of the TOS; shared that information with others; took members identities via user names, email addresses and passwords; and then went to other sites. What if the person or persons doing that knew that the person whose identity had been taken perhaps used the same user name and password on other sites and then harvested private messages; data that a non-member would not be entitled to; and disseminated that information to others in a concerted way to harass? What if that person or persons used that information to find out other personal information and intentionally caused extreme emotional distress to others by humiliating them on other forums; in your opinion would that be covered under the CFAA?

©Rose Turner
September 8, 2008
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Tags: Lori Drew, Lori Drew Cyber Bully case, MySpace Cyber Bully case, MySpace.com, TMZ, TMZ.com, Topix.net