Barely Legally

Confessions of a Moot Court Bailiff

Who's the Man? Wu's the Man.

A while back, I wrote about Lori Drew. She’s the woman who was indicted for violating a federal anti-hacking statute prohibiting the “unauthorized access” of MySpace’s computers by lying about her age and gender when she signed up for an account. Of course, tons of people do that on a daily basis; Ms. Drew was indicted not primarily on the basis of her dishonesty, but on what she did with her account. Under the guise of a teenage boy, Ms. Drew harassed 13 year old Megan Meier until the teenager committed suicide.

sidebar: I feel the need to point out how deeply I believe that what Ms. Drew did was despicable. Children bullying children is an inevitability of a child’s false steps in developing interpersonal skills. Adults bullying children is an unacceptable and unforgivable failure as a human being.

Ms. Drew was tried and convicted for unauthorized access of the MySpace computer system. She escaped conviction for the felonies, but was convicted of the corresponding misdemeanors. Threat Level seemed to focus on the fact that Ms. Drew wasn’t a felon, but being convicted of three misdemeanors still means you can go to prison for three years. Small comfort, then, that you’re not a felon. (N.B. - Contrary to the popular misconception, being convicted of a felony does not automatically disqualify a person from voting.)

The big news is that the presiding judge, the Hon. George Wu, is apparently ready to toss out the jury’s conviction of Ms. Drew, and will dismiss the case entirely. Judge Wu has expressed concern that the prosecutor’s claim (breach of terms of service constitutes a federal crime) is misguided, and that lying to MySpace should be a breach of contract rather than a violation of a federal anti-hacking statute. From the article:

“Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?” Wu asked. “If these people do read [the terms of service] and still say they’re 40 when they are 45, is that a misdemeanor?”

Frankly, I’m relieved to hear that the prosecutor’s tactic isn’t going to work. We’re all appalled by Ms. Drew’s actions. But let’s all recognize, along with Judge Wu, that a federal anti-hacking statute is not the proper avenue to punish people like Ms. Drew. As every law professor everywhere has always said, “bad facts make for bad law.” Let’s not torture the meaning of a law just to make sure that someone gets their comeuppance. If you start stretching the meaning of certain terms for these heart-wrenching cases, you run the risk of the laws being misapplied in other cases. None of us think the government needs (or should have) the power to throw us in jail for lying about our age on MySpace, or our favorite book on Facebook. I won’t rehash this.

However, a number of sources are being a little sloppy with their language, as is often the case with laypeople and 1Ls discussing legal technicalities. Judge Wu isn’t overruling the jury’s verdict: he’s dismissing the case because the prosecutor didn’t choose the right law to indict the defendant with. This is the same thing that would have happened had the prosecutor charged Ms. Drew with reckless driving, or Ms. Drew’s dog with unauthorized access of a computer system. Granted, the prosecutor was a lot closer on this matter, but the point stands. I applaud Judge Wu’s decision, and I’m in some good company.

A federal judge does have the power to overrule a jury and declare a defendant innocent or guilty, however. What a few commentators have conflated with dismissing the case is entering a judgement non obstante veredicto, abbreviated as JNOV. This translates to “judgement notwithstanding the verdict,” and it might seem bizarre for a judge to have this kind of power over the result of a trial, but it’s restricted to the much more mundane matters of law, and not the issues of fact.

Dismissing the case is different from overruling a jury’s verdict with a JNOV, as the latter simply states that the jury improperly applied the law, while the former signals a refusal to even allow a jury to apply this law to these facts. Again, think if Ms. Drew had been charged with reckless driving: an overwrought example, but a charge of reckless driving would have been dismissed, as well.

Regardless, I’m fairly certain we haven’t seen the last of the litigation in this case.