The much talked about cyber bullying case could go up in a smoke. Lori Drew, the 49-year-old woman, charged with taunting 13-year-old Megan Meier to death, could walk away free.
Drew was convicted only of three misdemeanor counts on Wednesday.
The misdemeanors relate to gaining unauthorized access to MySpace for the purpose of obtaining information on Megan Meier, and they potentially carry up to a year in prison, but most likely will result in no time in custody.
The jury in Los Angeles federal court declined to convict Drew on more serious felony charges of accessing a computer without authorization to inflict emotional distress,
U.S. District Judge George Wu has not yet ruled on a defense motion seeking dismissal of even the misdemeanors charge. The motion, if granted, would result in a judgment of acquittal.
After just over a day of deliberation, the six-man, six-woman jury acquitted Drew of three felony charges of violating the federal Computer Fraud and Abuse Act.
The verdict followed three days of testimony by 15 witnesses.
The indictment charged Lori Drew with creating a fake profile for a nonexistent 16-year-old boy named "Josh Evans" in September 2006. The account was used to flirt with, and then reject, Megan Meier.
Drew conspired to create the Josh Evans account with her then 13-year-old daughter, Sarah, and a then-18-year-old employee and family friend named Ashley Grills, for the purpose of inflicting psychological harm on Meier. The whole idea was to settle scores with Meier over some spat between her and Drew's daughter.
Prosecutors alleged that Drew and the two others used the profile to lure Megan into an online relationship with "Josh" to find out what Megan was saying about Drew's daughter online. Midway through the ruse, prosecutors said Drew changed the plan and wanted to print out the correspondence between Megan and the fake boy in order to confront her with the pages in public and humiliate her.
That confrontation never occurred. But after "Josh" turned on Megan and told her he wanted to sever their relationship, Megan hanged herself in her bedroom in October 2006.
Neighbors in O'Fallon, Missouri, the small town where the Drews and Meiers lived four houses away from each other, turned on Drew when her supposed complicity in the hoax emerged. They called her a murderer, Lori Drew's father testified Monday.
A year after Megan's death, her great-aunt Vicki Dunn contacted a local newspaper columnist who wrote about the case but didn't identify Drew in the article, since she hadn't been charged with any crime. The piece was picked up by numerous publications, sparking a frenzy among bloggers and others, who outed Drew's name and published her address and phone number online.
The Drews and their business associates received harassing calls and death threats. Sarah Drew testified that her school asked her to leave after officials concluded they could not control the bullying she was receiving from other students. A former business associate of Drew testified that a parent at her child's school asked her why she did business with a "murderer."
Publicity over the suicide prompted county prosecutors to review the case to determine if charges could be filed against Drew, but they were stymied by the fact that there was no criminal law addressing the cyberbullying that Drew was alleged to have committed.
That's when prosecutors in Los Angeles sought to indict Drew, charging her with unauthorized access to MySpace's computers, using a federal anti-hacking statute known as the Computer Fraud and Abuse Act. Prosecutors charged that Drew was guilty of the crime by violating MySpace's terms-of-service agreement when she and her co-conspirators allegedly provided false information to open the account and pose online as the 16-year-old boy.
Underscoring the importance of the high-profile case to the government, Thomas O'Brien, U.S. Attorney for the Central District of California, personally oversaw the prosecution and handled some of the witness testimony himself. O'Brien was appointed by President George W. Bush in 2007 to oversee the 266 federal prosecutors in the second-largest U.S. Attorney's office in the country.
MySpace's user agreement requires registrants, among other things, to provide factual information about themselves and to refrain from soliciting personal information from minors or using information obtained from MySpace services to harass or harm other people. By allegedly violating that click-to-agree contract, Drew committed the same crime as any hacker, prosecutors claimed.
The novel use of the statute was criticized by numerous legal experts who said the case set a "scary" precedent and potentially made a felon out of anyone who violates the terms-of-service of any website.
But testimony in the case offered by prosecution witness Ashley Grills under a grant of immunity showed that nobody involved in the hoax actually read the terms of service. Grills also said that the hoax was her idea, not Drew's, and that it was Grills who created the Josh Evans profile, and later sent the cruel message that tipped the emotionally vulnerable 13-year-old girl into her final, tragic act.
Critics fear that the verdict means that any computer user who violates a service provider's terms of service could now face criminal prosecution for what in the past would have been, at worst, a civil breach of contract.
Drew's attorneys will be seeking a re-trial on the three misdemeanor counts but are awaiting a decision from U.S. District Judge George Wu who can decide to acquit Drew. If Wu lets the verdict stand, Drew's lawyers plan to appeal the case to the 9th Circuit Court.
Legal experts say the court is likely to overturn the jury's verdict on grounds that prosecutors overstepped in using the Computer Fraud and Abuse Act to criminally charge a contract breach, which is normally a civil violation.
Paul Volokh said, on appeal, "the 9th Circuit will ultimately reject the prosecution's position."
"It's strikingly broad and can't possibly be what Congress intended with the statute and what the statute is properly interpreted as meaning," he said. "To say that whenever you breach the contract you therefore become an unauthorized user of the system and are therefore a felon, that can't possibly be right. I think the court of appeals will correctly conclude that the government's theory is legally unsound, and the statute ought not to be interpreted this way."