NEAL CONAN, host:
This is Talk of the Nation. I am Neal Conan in Washington. Last week, Lori Drew was convicted of three misdemeanors in a widely publicized cyber-bullying case. The charges involved violations of the Federal Computer Fraud and Abuse Act. A jury found Drew illegally accessed computers without authorization and violated the terms of service for the social networking site, MySpace, but that hardly explains the emotional worldwide interest in this trial. Drew is the woman who along with a young employee created a fake MySpace account then posed as a non-existent teenage boy named Josh Evans.
The fake account was use to flirt with 13-year-old Megan Meier and siphoned gossip about Drew's daughter, a classmate. At the end, the online relationship turned ugly. The last message to Megan Meier read, "the world would be a better place without you," she committed suicide shortly afterwards. Some believe the jury let Lori off too lightly. She was found not guilty on felony counts. Others worry that a federal prosecutor has now criminalized anyone who violates the terms of service of any website. Now later this hour, we'll talk about another Internet controversy, the audience that watched a man kill himself with Ayelet Waldman, a writer who cyberfriends intervened to help her to her lowest moment.
But first, the Lori Drew verdict, does the punishment fit the crime? 800-989-8255 is our phone number. Email us, firstname.lastname@example.org. You can join the conversation on our website, as well. Go to npr.org, click on Talk of the Nation. And we begin with Kim Zetter, a reporter who has covered this story for Wired.com with us today from the Youth Radio Studios in Oakland, California. Nice to have you on the program.
Ms. KIM ZETTER (Reporter, Wired.com): Thanks for having me.
CONAN: And I guess, there is not too much doubt that Lori Drew did something that was reprehensible. The question is, was it criminal?
Ms. ZETTER: Right. And you know, the jurors found a lesser charge in this case. She was charged with felonies, and the distinction between the felony and the misdemeanor verdict that the jury came out with was whether or not she intended to inflict emotional distress on Megan Meier who killed herself. And the jury found that they did find her guilty of the misdemeanor charge of unauthorized access, but they found that that wasn't - her intent wasn't to inflict emotional distress. The testimony had indicated that the intent of creating the account was to solicit information from Megan about what Megan might have been saying about Lori Drew's daughter, Sarah.
CONAN: So intent as in a lot of crimes, crucial to the verdict here?
Ms. ZETTER: Yes.
CONAN: And the other question that a lot of people have, how come this was tried in Los Angeles?
Ms. ZETTER: The MySpace servers are based on Los Angeles County in Beverly Hills. So, the charges, the felony charges or misdemeanor charges, either way, have to involve interstate communication. So the communications that were sent from Lori Drew's computer in Missouri had to pass through the MySpace servers in Los Angeles, and so that's why the charges were brought there.
CONAN: And because it was interstate, it comes under federal jurisdiction.
Ms. ZETTER: Yes. And it was brought in Los Angeles because authorities in Missouri didn't bring charges, and so the Los Angeles county prosecutors decided to find some way of bringing justice in this case. And they were able to determine that they could have jurisdiction in Los Angeles.
CONAN: Was the prosecutor satisfied with this verdict?
Ms. ZETTER: I believe he was. I mean, he didn't call it a victory, but he said pleased with it. He felt that the jury held Lori Drew responsible for her actions. So, yeah.
CONAN: And is her legal team planning to appeal the sentence?
Ms. ZETTER: Well, there is one step before that. They are planning to appeal, but there is a motion that is still pending from U.S. District Judge George Wu at the - when the prosecution rested its case, the defense filed a motion for direct acquittal. And this is kind of standard in case for defense attorneys to do this, but in this case, Judge Wu is seriously entertaining the motion, and he asked for briefs from both sides. The defense motion is based on the view that the prosecution failed to prove that Drew both was aware of the terms of service, that she read them, and that she intended to violate them. So, they've ask Judge Wu to essentially acquit her, and that would override the jury's verdict of guilty on the misdemeanor. If Judge Wu decides to let the verdict stand, then the defense attorneys have indicated that they do plan to appeal at the Ninth Circuit Court.
CONAN: On the grounds of what?
Ms. ZETTER: On grounds that the prosecutors overstepped in using a Computer Fraud and Abuse Act for something that normally would be considered a civil action which is a breach of contract.
CONAN: These terms of service, by the way, I mean, that's these little questions that come up when every time you enter a website or join a website, and they have all of these very fine print things, and does anybody ever read them?
Ms. ZETTER: Well, there were two people that I spoke with or - one of the jurors, the jury foreman claims that she does read them. Megan Meier's mother, Tina Meier, testified in court that she always reads the terms of service, you know, top to bottom before she signs on to any site. And she explained that she used to be employed by a law firm, and so was drilled into her to read everything before she signs it. So, she claims that she did, and the jury forewoman that I interviewed after the case was over, indicated that she also reads these before she signs them. I don't personally read them, and I don't personally know anyone who reads them, but there maybe people out there who do.
CONAN: We're talking about the verdict in the Megan Meier case and whether it criminalize activities that a lot of people would consider, well, maybe reprehensible but questions of free speech on the web, and Kim Zetter, that's I guess, where this goes next?
Ms. ZETTER: I, well, there is a free-speech issue in terms of the precedent that this could set. It's important to remember that this case in itself wasn't a free-speech issue because, of course, the charge that was made against her was for computer access. So they used what was considered reprehensible speech as the excuse to bring the charges, but it's not technically a free speech case.
CONAN: Well, with us here in Studio 3A is Andy Carvin, NPR's senior strategist for online communities. Nice to have you back on the show, Andy.
ANDY CARVIN: Thanks for having me here.
CONAN: And I know that you'd been writing about this and the implications of this. So does this raise free-speech issues for some people?
CARVIN: I think for some people, it does raise free-speech issues, because people have debated even though clearly what she did was reprehensible in many people's minds, there wasn't a specific law that she broke in terms of the kind language and the way she'd led her on when talking to Megan pretending to be this young boy. But when you look at the actual case that was brought against her, it wasn't a free-speech case as Kim just mentioned. In some ways, you may want to look at this as a privacy case because she was specifically found guilty for violating terms of service using this law that Kim mentioned is called the Computer Fraud and Abuse Act, which was written specifically for going after hackers doing really malicious things on computer servers.
But the way the prosecutors framed the case, they use that same law to go after Lori Drew by saying when she went and accepted the terms of service, she ignored some of the aspects of the terms of service. Now, what's gotten so many people upset about this is people do that every single day. The vast majority of people I've asked in the last few days about this they've said that they don't bother reading terms of service. I just talked a couple of hours ago with a woman who specializes in doing web accessibility testing and of the more than a thousand test she has done, almost no one ever bothers to click that box to actually read it. They just click the check mark and keep going.
So, I think it's human nature that to just gloss over this legalese and not pay attention to it. But if the way the prosecution took place, if that were taken to an extreme, cases such people under the age of 18 using Google technically that's violation in their terms of service. People signing for the NPR website to be a part of our community. If a 17-year-old student did that for one of their classes, that's a violation. If you don't keep your Facebook page up-to-date, that's a violation. The list goes on and on.
CONAN: Are those crimes is I guess the question?
CARVIN: Precisely. And, you know, I've lost track of the number of times. Personally, when I've come to create accounts on new websites, if I don't really trust the site, because I really don't know the people behind it, sometimes, I'll purposely go and not put my real birth date because frankly, I don't trust them to handle my private information. They have to earn that trust.
CONAN: But that's a violation of terms of service.
CARVIN: It is exactly. So put the shackles on me right now. OK.
CONAN: Let's see if we can get some callers in on this conversation, 800-989-8255. Email is email@example.com. Cathy is on the line with us from St. Louis in Missouri.
CATHY (Caller): Hi. Thank you for taking my call.
CATHY: I'm coming from a more emotional place than a terms of services place with this comment. I'm in St. Louis. I live pretty close to where this all happened, and I think that the energy and outrage was generated about this, and it broke here first because an adult behaved so - in such a reprehensible way. And I don't think that our reactions in the Midwest or in St. Louis or St. Charles are any different than anywhere else. What she did was wrong, and the legalese part of it in some ways is baffling, because there are lot of people who behave badly on the Internet, and I personally am very glad that they were able to prosecute in California. It was very frustrating to all of us who are parents, and who live around here to think that this could go on again. And she deserved - again, I'm saying this emotionally - she deserved way more punishment than she got. She did not act like an adult, and bullying isn't tolerated in our schools, why should bullying be tolerated on the Internet?
CONAN: Kim Zetter, that was the feeling that a lot of people had was this federal prosecutor was saying well, she must be guilty of something, let's find out what.
Ms. ZETTER: Yeah, that's definitely the opinion of people who've been opposed to this. It's interesting. This definitely was a verdict based on emotion and the jury foreman woman that I spoke with said that the if she had been able to, she would have gladly given Drew the full extent of 20 years in federal prison for this. But what's interesting about this, if you - when you dig down into all the details of this, there were three people involved in this account, and it was Lori Drew, her 13-year-old daughter, and an 18-year-old employee.
In the testimony, it was uncovered that Lori Drew actually had very little direct role in the activities of that account. It was Ashley Grills, the 18-year-old employee, who came up with the idea for the account. It was her who opened the account and Ashley Grills clicked on the terms of services agreement, and she testified that she did not read them. She testified that both Lori Drew and Sarah Drew were in the room when she opened the account, but Sarah Drew's daughter contradicted that and said that neither of them were home when Ashley Grills created the account.
Ashley Grills also testified that she was the one that sent the majority of the messages to Josh, and that she was the one who sent the last that sent messages to - I'm sorry - that sent the messages as Josh to Megan, and she was the one that sent the last message to Megan that said the world would be a better place without you. So, when it comes to the direct activity of what Lori Drew engaged in, there was very little. She was involved in the conspiracy - which by the way, she didn't get convicted of. So, it's interesting in terms of if you break it down what she was fully responsible for, and why she was prosecuted instead of Ashley Grills.
CONAN: Cathy, thank you very much for the call. We're going to continue on this point when we come back from a short break so stay with us if you would, OK? We're talking with Kim Zetter of Wired.com and Andy Carvin who works on online communities here for us at NPR about this verdict in this very emotional case about cyber bullying. You're listening to Talk of the Nation from NPR News.
CONAN: This is Talk of the Nation. I'm Neal Conan in Washington. We're talking about the verdict in the first federal cyber bullying case. It's been called the Myspace suicide trial. Some legal experts criticize the verdict for setting a scary precedent for anybody using the web, while others complain the defendant, Lori Drew, was not punished harshly enough. What do you think? 800-989-8255. Email us firstname.lastname@example.org. You can also join the conversation on our website at npr.org. Just click on Talk of the Nation. We're talking with Wired.com reporter Kim Zetter. You can find a link to her in-depth reporting on the case on our blog and with NPR senior strategist for online communities, Andy Carvin and there's a (unintelligible) on our blog as well. Again, that's all at npr.org/blogofthenation.
Here's an email from Jamie in St. Charles, Missouri. Again, this is near where this happened. I live in Waynesville, Missouri. I have a six-year-old daughter and a seven-year-old son. As a mother, I find what this woman did absolutely awful. Putting that aside, there is a difference between free speech and attacking an individual. There are laws in Missouri and I assume, nationally, regarding phone harassment and physical harassment. I don't believe this is any different. Free speech is not the freedom to attack someone or impersonate someone. Allowing this behavior opens the door to so many negative people attacking others. Ms. Drew did not attack a belief or a system or religion or even express her beliefs. She absolutely intended to emotionally harm the recipient and individual of her messages. Andy, this is similar to the call we had just before the break.
CARVIN: I think there's no doubt that people, especially in Missouri, are outraged and disgusted about this whole situation, and it became a national story as well even though it did take a while for the story to break nationally. I think people have a visceral reaction when they hear the name "mother was involved" in a case like this. You hear cases all the time of cyber bullying that are young person on young person if you will, but the fact that supposedly a mature adult, and a mother at that, was involved really sticks on people really, really hard. So, people were quite disgusted when local authorities weren't able to come up with something on the law books that was appropriate for an online incident such as this.
And so, it wasn't that surprising that when federal prosecutors started looking at the case, they looked at everything available in their entire arsenal. It just so happens though that they picked a particular way of attacking the case that has raised the ire of Internet advocates on both the left and the right because it raises these very complex issues of what it means to participate in the online sites and what kind of protection you have to protect your own rights.
CONAN: And Kim Zetter, again, from a legal aspect, and I know this has been discussed in the periphery of this case, the Supreme Court has repeatedly found that outrageous behavior is entirely constitutional. You may not like it. Nevertheless, that's what free speech means.
Ms. ZETTER: Well, yeah, but, there is the element of tortious act here, and if your intent is to inflict emotional distress which is what she was charged with in this case, there are laws that do indeed cover that. So yes, you can have a protection of speech, but you can also have actions that intend to create harm, and in that case, this is what she was charged with. I mean, it was the whole of the actions. The ruse of posing as a 16-year-old boy, of not revealing who they were, of drawing her into relationship with him so that she fell in love with him essentially, and then turning on her. So, it wasn't just speech on this case. It was a whole - as she was charged with a conspiracy in this matter.
CONAN: Let's get Scott on the line. Scott with us from Kansas City, Missouri.
SCOTT (Caller): Hey, how are you guys doing today?
CONAN: Good. Thanks.
SCOTT: So, I'm a little frustrated in how to talk about this, but the woman, OK, she's was in wrong, she shouldn't have - she should not - definitely not have not done what she had done. But I'm sure that the prosecuting attorney could have found a way better way to go about it than to take and twist user guidelines for a website and make a criminal case out of it. I mean, I'm sorry, I just don't believe in taking Google user agreement and Gmail user agreements, and you know, so a person want to spam out some email out of Gmail. So we're going to turn around and throw criminal charges on him. A user account for some of these RPG games, you know, they turn around and say they want to list this stuff which is against the user agreements for the video game.
CONAN: Right. Andy Carvin, the perception is that these user agreements on the web are there for liability, to protect the company.
CARVIN: Absolutely. They're there to make sure that the company doesn't find users doing things that aren't acceptable to them and puts them in legal jeopardy which is why they're written in these very dense legalese. In fact, there was this study done by a couple of researchers at Carnegie Mellon University, and they looked at terms of service agreements as they're called on some of the major online community sites, and the average one was about 2500 words long, and it took about 10 minutes for a person to read properly.
So, they calculated if you took the amount of time for everyone to read, if everyone actually read all this stuff, there would be a loss of approximately $365 billion in productivity. Now, of course, I'm pretty sure the vast majority people don't bother to the spend the time to read these things, but that's what has gotten so many people upset about this case is because even though it's very, very unlikely that any of us are going to get charged for violating a term of service for one of these sites, people are concerned that this is a slippery slope.
SCOTT: And regardless of you even reading these terms agreements, when somebody clicks this I Agree button and they click Submit, the worse that they're expecting if they violate these terms of service is their accounts are going to get banned. You know, slap on the wrist. They may have to move on to the next Facebook or MySpace or whatever.
CONAN: Nobody really expects to log in to leavenworth.com, you know?
CARVIN: No one gives it a second thought.
CONAN: Dot, gov, I guess.
SCOTT: I don't think anybody even after this is going to realize that they just put a cornerstone on prosecuting people criminally for going against user agreements on websites. I mean, that's completely insane.
CONAN: All right. Thanks very much for the call, Scott.
SCOTT: All right.
CONAN: Let's see if we can go now to Nancy. Nancy is calling us from Ann Arbor in Michigan.
NANCY (Caller): Hi. I just want to state that 14 - 15 years ago I was harassed on the Internet before it was even the world wide web on a religious alt group that was out there. And I had lost a child, and I'd mentioned in the group I lost a child. And one of the people in the group who I thought was my friend for some reason began to blame me for the loss my child, and called me on the phone, posted my home address and my phone number. We'd get hang up calls in the middle of the night.
To this day, I don't guard my identity online, but I have a private phone number, and I'm very careful what information I give out. The day before we got the call that we were able to adopt a child, this person had driven me to the point where I was seriously considering a suicide. They blamed me for the death of my child. They would email your son will never play horsey with your husband. He's dead. He's buried in the ground, and you probably could have stopped it. That was not the case, but when you get this day after, day after day, after day.
CONAN: It could be overwhelming, Nancy. Did you report this to the police?
NANCY: Yeah, but there weren't any laws there that could protect me. They referred me to the FBI, and the FBI said there is nothing they could to. This was over the Internet, and they weren't personal attacks. It wasn't we're going to come and get you. It was if you had done this instead of that, then your child would be alive.
CONAN: Given that experience, what do you think of the verdict in this case?
NANCY: I'm horrified, because I was lucky. We've adopted two children. We have birthed two children since then, but the day before we got the call to adopt oldest child all of my son's stuff fell out out me in the closet, and I was - I'm horrified, because I was so close to just ending my life, because I felt so responsible. And I hadn't felt that way until this person started saying what they did. I'd been ensured by the doctors that there is nothing I could have done, but when you're being worn down and worn down and the email addresses would change, so I didn't know who it was coming from.
So I'd open the emails. It wasn't a matter of simply blocking this person or their ISP. They change ISPs three times to avoid being caught. And the FBI said there was nothing they can do. There were no laws on the books, because they did not threaten me personally. They just were harassing me.
CONAN: Nancy, we are so glad. I know - you can still hear the emotion in your voice, but I'm really glad that you made it through.
NANCY: I'm a little nervous that by being on the radio, these people are going to figure where I am and how badly they hurt me, because I tried very hard to hide that. But it worked out well, but it's still something I'm working through almost 15 years later. So, you know...
NANCY: I understand why a young woman, a very young girl in her teenage years, being hurt like that, knowing she was unstable. This woman knew she had problems. Lori knew that she had problems, and she pushed all those buttons anyway. And not only that, but she probably encouraged her child to do it too. And over what was being said about her in school? Girls can be so cruel at that age. And...
CONAN: Regrettably it's not just girls but...
NANCY: Yeah, I know it's not. I know it's not. But you know, I don't blame her parents. I don't blame her parents one bit. She probably felt so ashamed and embarrassed that - or that she never even said a word to them.
CONAN: Nancy, again. We've been through this, and thank you for sharing the story.
NANCY: Well, thank you for having me. Thank you.
CONAN: OK. Bye-bye. And Kim Zetter, that raises the question - obviously that kind of pain is very real and it's long-lasting and emotional distress, you know, it may not be the legal definition, but I think we just heard it. Is there anything in the works that - legally - that would allow prosecutors to go after such people and still with it be in the realm of the First Amendment?
Ms. ZETTER: Well curiously, there was a law passed in 2006, and I've asked the Los Angeles prosecutors why they didn't use this law. Let me just explain a bit what it is. In 2005, the Department of Justice Appropriations Bill includes something buried in it about cyber bullying, and it specifically states that if you use an interactive Internet service, computer service in order to harass someone, and you do so under a false identity, you can be charged and the punishment is up to two years in prison.
Now the bill was signed by President Bush in January 2006. The incidences that occurred in the Drew case occurred in September and October of 2006. So, it's unclear to me if there was some kind of - if there was something in the statute of - I've gone through the through the statute, and I don't find anything that says that it didn't go into place until perhaps January 2007 or something. As far as I know, it was in place when these incidents occurred, and I don't know why prosecutors in L.A., whether or not they were even aware of the statute or why they didn't use it, or if there's some reason that they couldn't have used it. So, it appears that there is something that can be used in a case like this. I understand that there is also a bill that has been introduced in Congress regarding cyber bullying. I don't know where it is at this point, and I don't recall who's actually introduced it yet.
CONAN: And whether or if it's in Congress now and has not been approved, it's going to be - it have to be reintroduced in the next session of Congress which when the next Congress comes back in January. So, well anyway.
Ms. ZETTER: Right.
CONAN: Kim Zetter is a reporter with Wired.com, also with us Andy Carvin, a senior strategist for online communities here at NPR. You're listening to Talk of the Nation from NPR News. And Josh is on the line. Josh calling us from Tulsa, Oklahoma.
JOSH (Caller): Hi. I don't have an opinion on verdict or anything. I just was wondering how the prosecution was able to go after the defendant for a violation of terms of service when the - I believe the victim herself was violating terms of service. I can't remember for sure but MySpace, I thought, was - the minimum age was 14. And that's simply my question is how was the prosecution able to go after?
CONAN: Kim Zetter, did that come up in the trial?
Ms. ZETTER: It did actually. I think the MySpace age limit now is 13. I think it was lowered earlier this year. But at the time in 2006, it was 14. And Tina Meier, Megan's mother, had allowed her to open an account about a month and a half before she turned 14. So, it did come up. The defense brought it up and you know, the issue was you know how do you charge Lori Drew with something when the victim was guilty of at least part of the same thing of what she's been charged with. You know, prosecutors decide, you know, who to prosecute and why to prosecute. I mean, Megan Meier didn't create an account in order to harass other people and that's, you know, this is the whole basis of the prosecution here. Again, I want to come back to the idea of the role that Ashley Grills played in all of this. And it's probably more appropriate to ask why she wasn't charged in this...
CONAN: I was just about to ask why she wasn't charged. Did you ask the prosecutors?
Ms. ZETTER: She was granted immunity, because they needed her to testify against the defendant. So, you know - and again the emotional element of this case, the whole reason that this grabbed, you know, the public such as our St. Charles caller explained. You know, she was absolutely right that it was Missouri that was affected by this case. It was nationally even internationally. The whole reason this grabbed people was the role of an adult woman. Had this been just perhaps an activity with an 18-year-old girl and a 13-year-old girl, we probably wouldn't have had this case at all. So, it is the outrage over an adult who should known better of why one person is prosecuted and another one isn't.
CARVIN: It's a valid point. It's quite possible that no one will ever be charged the same way again, and it was done for a very unique circumstance. But at the same time that's the nature of slippery slopes when people complain about them. The concern is what if. It began to process in which other people could be tried in such a way that their rights are violated. Again, I think it's largely because people were so disgusted in this particular circumstance. They felt they had to do something. So unless a similar situation arises, it's possible that maybe it won't happen again, but we just don't know.
CONAN: And Kim Zetter, was that part of the prosecution's argument here? This is a deterrent. We should be able to prosecute in such cases?
Ms. ZETTER: Yeah, they were very clear especially after the verdict came down in the press conference that, you know, they weren't going to make a plan of bringing prosecutions like this. They were very clear that this was special circumstances that's - you know called for action and in the absence of another law that they could use, this is what they had to go on. So, if another law is passed, and you know, soon then they wouldn't have to use this law again.
CONAN: Kim Zetter, thanks very much for your time today.
Ms. ZETTER: Thank you.
CONAN: Kim Zetter, a reporter for Wired.com with us today from Youth Radio in Oakland, California. Our thanks as well to Andy Carvin, NPR's senior strategist for online communities with us here in the Studio 3A. Thanks, Andy.
CARVIN: Thanks for having me, Neal.
CONAN: Coming up the online suicide of 19-year-old Abraham Briggs watched by at least a 100 cyber voyeurs via webcam prompted Ayelet Waldman to consider the actions of her own web community in some of her darkest days. We'll talk with her next. Stay with us. I'm Neal Conan. It's the Talk of the Nation from NPR News.