In the case Lori Drew, 49, is charged with one count of conspiracy and three counts of unauthorized computer access for allegedly violating the MySpace terms-of-service to inflict psychological harm on the 13-year-old Megan.
But with her assertion on Friday, 19-year-old Ashley Grills, who had worked in Lori Drew's advertising coupon business at the time of Megan's suicide, could be bailing out her former employer.
After Grills' deposition Friday, defense attorney H. Dean Steward moved for an immediate dismissal, arguing the testimony showed that Drew never saw MySpace's contract and wasn't the one who set up the account and accepted the terms.
Steward argued that the case was based on Drew intentionally violating MySpace's terms of service but said that prosecutors "haven't proven that portion of facts that would go to a knowing violation of a legal obligation." They provided no proof that Drew "ever read or had knowledge of the terms of service" therefore could not prove her intention to violate them.
U.S. District Judge George Wu acknowledged that "intentionality is a requirement" of conspiracy.
Wu retired to his chambers to review transcripts of previous testimony and consider the motion. When he emerged 30 minutes later, he asked both sides to file written briefs on the issue. He allowed the defense to proceed with direct examination of its witnesses and said he'd give his decision about the motion to dismiss on Monday.
Three-and-a-half days of testimony from prosecution witnesses in the trial indicated that Lori Drew was present when her daughter, Sarah and Ashley Grills set up a MySpace profile under the name of "Josh Evans," a purported 16-year-old boy. Using the account, Sarah Drew and Grills flirted with the emotionally-vulnerable Megan, who'd been diagnosed with depression, then ultimately turned on her, contributing to Megan's suicide.
MySpace's terms-of-service require users to provide accurate information in establishing an account, and prosecutors argued that violating that agreement for the purpose of harming someone is a crime under a federal anti-hacking law.
But testifying for the prosecution Thursday, Grills claimed it was she who conceived the idea of creating a fake account, to see if Megan would speak ill of Megan's sometimes-friend Sarah. More important, it was Grills who accepted MySpace's terms-of-service, and she did so without clicking on the link to view them. She testified that Lori Drew also did not read the terms at the time that Grills set up the account.
Wu noted Friday that some sites make you go through a page with the entire text of the click-wrap agreement before signing up. "But that's not the case here." At the time the account was set up, MySpace simply required users to click a box on the set-up page to agree to the terms, and users could do so without seeing them.
Assistant U.S. attorney Mark Krause conceded that none of the alleged participants in the hoax read the MySpace contract when the account was opened, but he argued that they knew they were breaking the law anyway.
Grills had testified that she told Drew she had reservations about opening the account because creating a fake MySpace profile was illegal. Grills said Drew told her it would be fine and that "people do it all the time." He also said that Drew's subsequent behavior "showed she knew of the terms of service" even if she didn't read them at the time the account was opened. Although Grills and Sarah Drew had used other services to communication with Megan Meier, such as AOL and Yahoo instant messaging, it was only the MySpace account that they moved to scrub after Meier's death.
Furthermore, he said, testimony by Tina Meier, Megan's mother, had established that Sarah Drew had opened a separate MySpace account with Megan several months before Megan's death. The implication was that she knew what was permitted on the site.
Wu, however, was skeptical.
"How is this not speculation?" he asked Krause and his two fellow prosecutors.
Wu said he would ask the court recorder for transcripts of Grill's testimony to review and determine what she might have known about the terms of service.
The trial continued Friday afternoon with the defense calling its first witness, a computer forensic expert.