There’s something of a cliche in legal academia that says “Hard cases make for bad law.”  The idea behind this is that in the zeal to punish someone for a morally blameworthy act, legal professionals twist and pervert the law into a shape if was never intended to take.  It results, at best, in an anomalous legal proceeding that generally gets ignored, but still is a perversion of the law.  At worst, it results in the setting of precedent and the law remains forever warped and almost impossible to correct.

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A criminal case occurring in Los Angeles is poised to be another one of those situations where we’re forced to choose between situational justice and a reasonable understanding of rule of law.  The case involves a woman named Lori Drew.  She created a MySpace account under a false name so that she could bully a former friend of her teenage daughter’s.  The friend, Megan Meier, ended up killing herself as a result of the psychological abuse she took both online and in person.

Obviously, if any sort of criminal charge were to be brought against Drew, one would expect it to be some sort of homicide charge, or some sort of stalking or harassment charge at a minimum.  However, Drew is in fact being charged with violating the Computer Fraud and Abuse Act.  The act allows charges to be filed against anyone who “intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer in furtherance of any criminal or tortious act.”

Now, MySpace is a public site, and anyone can create an account to use its service.  But MySpace limits who can use the site’s services to those who agree to MySpace’s Terms of Service.  One of those terms is that you can’t sign up for an account under false pretenses.  Accordingly, the US Attorney’s theory in this case is that because Drew violated the Terms of Service for MySpace, the use of the MySpace account by Drew was unauthorized.  Once Drew made unauthorized use of MySpace to get private information about Meier, she violated laws intended to prevent hacking.

There is absolutely no reasonable way in which what Drew did could be classified as hacking.  The Computer Fraud and Abuse act was in no way passed into law to apply to this sort of situation.  So why is it being applied here?  Because there are technical problems with the wording of the statutes, which the local authorities say they will try to fix.

The bigger problem here is what will happen if the prosecutor’s theory of “unauthorized access” is accepted.  Under the theory the US attorney is putting forward, anyone using a computer in violation of the terms of their agreement with whoever owns it is now committing a crime.  Are you surfing the web from a company that doesn’t permit casual web surfing?  Crime.  Are you using a file sharing program that your internet service provider says you aren’t allowed to use?  Crime.  Indeed, under the theory proposed here, virtually any broken contract term involving the use of an Internet-connected computer leaves the actor at risk of being charged with a crime.  Now, it’s pretty certain that not even a fraction of these will ever actually be prosecuted, but do we really want to rely on a lack of government willpower and resources to safeguard our civil liberties?

It is when we face the most absurd and horrifying circumstances that our principles matter most.  The conduct in Lori Drew’s case is beyond appalling, and so consequently many agree that the act should be criminal.  But it wasn’t.  So instead of trying to twist the law to punish a single instance of an unthinkable act, why not use that outrage and interest to just fix the problems with the law?  We don’t wind up with laws backfiring and needing constant revision to make them make sense, and the publicity takes care of the momentum needed to make the necessary changes to the statutes.  While it may make us feel good to see a blameworthy person punished for their misdeeds, sometimes the fact that they got away with it is the better course of action in the long run.