The jury instructions in U.S. v. Lori Drew read, in part:

In order for the defendant to be found guilty of the lesser crime of accessing a protected computer without authorization or in excess of authorization, the Government must prove each of the following elements beyond a reasonable doubt.

First, the Defendant intentionally accessed a computer without authorization or in excess of authorization.

Second, the Defendant’s accessing of that computer involved an interstate or foreign communication; and

Third, by accessing the computer without authorization or in excess of authorization, the Defendant obtained information from a protected computer.

You remember Lori Drew, don’t you? She’s the woman who set up a MySpace account to harass her teenage daughter’s former friend; her messages no doubt contributed in large part to the eventual suicide.

Then the U.S. Attorney’s Office, conflating inexcusable behavior with criminality indicted Drew for, essentially, violating MySpace’s Terms of Service – the ones that made Drew “promise” she was telling the truth when she set up an account under the fake name “Josh Evans”. The jury acquitted on the felony charges (that Drew acted tortuously and intended to inflict emotional distress) and convicted on the theory stated above, which was “only” a federal misdemeanor.

Forget, for a moment, that we (OK, not me, just you – in case the FBI reads my blog) have all signed up for an extra email account using false information, even if it’s just claiming our birthday is January 1, 1960 because that’s the default when you click through. The case was a crock from the beginning; likely just a prosecutor trying to make a name for himself in a high profile media case. Or perhaps one so morally offended by Drew’s actions that he just had to find some crime that fit. Or both.

On it’s face, if you read through the entire instructions, it looks like the jury had little choice but to convict on the “violating the terms of service” theory that was submitted to them by the judge. But what if there was an actual, but perhaps at the time unknowable defense?

From this Sunday’s New York Times Book Review of Stealing MySpace by Julia Angwin:

It was in this culture of microcelebrity that Anderson, an intellectual drifter who had been a hacker in his teens, saw an opportunity for MySpace. He was spending time on Friendster but thought the site was making a mistake by actively deleting the profiles of so-called Fakesters, people who pretended to be, say, Homer Simpson or Britney Spears.

The Fakesters were in open rebellion and had posted a remarkably prescient manifesto: “Identity is provisional. Who we are is whom we choose to be at any given moment, depending on personality, whim, temperament or subjective need.”

The final line could have been MySpace’s motto: “Every day is Halloween.”

When MySpace began, it would let people be whoever they said they were.

MySpace was co-founded by people that wanted to create an online environment where people could be… whoever they said they were? Entrepreneurs who realized there was a money making opportunity in letting people pretend to be someone else online?

Sure, you have to check the TOS box, but we don’t care who you claim to be. Our company was founded on that premise.

Maybe this came up at trial. Maybe the lawyers tried to get it in, but the defense was disallowed by the judge; I didn’t pay much attention while it was going on.

And even if it didn’t, it may be too late to raise the issue successfully now on appeal. But sentencing is still pending. Yes it’s “only” a misdemeanor, and a likely criminal history category of I, so probation, the lowest possible sentence, is extremely likely.

Maybe someone should email Orin Kerr and let him know…