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Opening Arguments

Law for the Devil

Lori Drew seems like a pretty despicable person. For her part in the hoax that led a 13-year-old girl to commit suicide, she deserves eternal condemnation. But it was clear that she didn't really violate the law. She was cruel, thoughtless and heartless, yes, but not a criminal. The prosecuting attorney in Missouri said as much when he declined to prosecute. But U.S. Attorney Thomas O'Brien didn't want to let her "get away with it," so succumbed to the Al Capone/O.J. Simpson Syndrome -- if we can't get her for that, we'll get her for something. So he used the Computer Fraud and Abuse Act of 1986, a law aimed at hackers, to allege that Drew intentionally accessed MySpace servers "without authorization." There's just one small problem with that, as Jacom Sullum explains:

But the charges did not fit the facts of the case. O'Brien claimed Drew's access to MySpace's computers was unauthorized because she violated the social networking site's terms of service (TOS) by providing false information and harassing another user. But he never presented any evidence that Drew saw MySpace's TOS, let alone agreed to them.

Furthermore, O'Brien's interpretation of the law would make criminals of us all. Shortly after the indictment, Orin Kerr, a George Washington University law professor who later volunteered as a pro bono attorney for Drew, noted, "Since everyone who uses computers violates dozens of different TOS every day, the theory would make everyone who uses computers a felon."

The Drew trial has bothered me from the start, and Sullum puts his finger on how it perverts the law and why it should worry us all. The law is meant to carefully -- and coldly, analytically -- prescribe and proscribe our actions so we know how to behave toward one another and what the consequences are if we don't behave that way. The law is supposed to be a substitute for the hot passions of the anger that leads to revenge, not a tool of it. The law isn't to be used to "get" people we don't like. If we encourage vigilantes like O'Brien -- and that's what he is -- to use the law as a blunt instrument to punish mean people we can't figure out how to get rid of, we are giving our implicit approval for such tactics to be used against us, too.

There is an exchange I love to quote from "A Man for All Seasons" between Sir Thomas More and William Roper -- but I don't think I've done so on this blog yet. Roper has criticized More for giving "the Devil the benefit of law." More asks him if he'd cut a road through the law to get after the Devil, and Roper says he would cut down "every law in England" to do that. More then says:

Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!