A federal judge in Los Angeles on Thursday tentatively threw out the conviction of a Missouri woman for her role in a cruel Internet hoax on a teenage girl who ended up committing suicide.
The decision by U.S. District Judge George H. Wu, which will not become final until he files a written ruling, was a blow to prosecutors who had hoped to send the message that cyber-bullying is a crime. Wu had repeatedly delayed sentencing to consider a defense motion to dismiss the entire case.
U.S. Atty. Thomas P. O'Brien, whose office prosecuted the woman, said after the decision was announced that the law needed to be strengthened.
"We call it cyber-bullying and we don't have a law to address it," he said at a news conference.
O'Brien, who was personally involved in the case, has earned a reputation for aggressive prosecutions in the nearly two years he has headed the Central District of California.
His decision to prosecute Lori Drew, 50, surprised many because the suicide and MySpace hoax that led up to it took place in Missouri, where local and federal prosecutors had decided they could find no applicable statute.
O'Brien said his office determined that the case could be prosecuted in Los Angeles because MySpace is based in Beverly Hills.
Prosecutors here invoked a criminal statute more commonly used to prosecute hackers or defendants who have improperly accessed computers for financial gain, to charge Drew for her part in setting up a MySpace account in the name of a fictitious 16-year-old boy.
Prosecutors said Drew, her 13-year-old daughter, Sarah, and an 18-year old employee used the fake profile to lure Megan Meier into an online relationship, initially to find out whether Megan had been spreading rumors about Sarah.
Megan, 13, hanged herself with a belt in October 2006 after getting a message, purportedly from the boy, telling her that "the world would be a better place without you."
A federal jury convicted Drew in November of three misdemeanor computer crimes but deadlocked on a felony conspiracy charge that would have carried a sentence of up to 20 years in prison.
Wu took the unusual step of delaying sentencing to consider the defense's contention that the case should be dismissed because prosecutors failed to prove that Drew, whose family lived four doors away from the Meiers in the St. Louis suburb of Dardenne Prairie, had intentionally violated MySpace rules when creating the bogus profile.
At a May hearing, Wu grilled Assistant U.S. Atty. Mark Krause at length about whether the government had prosecuted Drew under the appropriate laws when they asserted that violating MySpace's terms of service amounted to a crime.
On Thursday, he again expressed concern that if Drew's conviction stood, anyone who violated the site's terms of use could also be convicted of a crime.
"The implication was that anyone on the Internet would be a criminal if they filled out a website registration using a fake name or using the wrong age," said Matt Zimmerman, a lawyer at the Electronic Frontier Foundation.
"And I think that was a path the judge was not terribly interested in going down."
Legal experts have been grappling with cyber-bullying for years.
Although the anonymity available on the Internet creates opportunities for abuse, attempts to restrict cyber-bullying raise thorny issues about free speech.
"Ultimately I think Congress has to deal with this issue," said former Assistant U.S. Atty. Laurie Levenson, now a professor at Loyola Law School.
"The challenge is to draft legislation that . . . isn't so broad that it chills people's 1st Amendment rights and is enforceable."
Drew's lawyer, H. Dean Steward, said outside court that his client was relieved by the tentative outcome but "like the rest of us, continues to be saddened by the death of a teenage girl."
Steward, who has called the prosecution a misguided effort to seek vengeance, said Thursday that charges should not have been filed in Los Angeles in a case that was rejected by prosecutors in Missouri.
"The cynic in me says that Tom O'Brien wanted to make a name for himself or to keep his job," Steward said.
O'Brien acknowledged that prosecuting Drew under the federal Computer Fraud and Abuse Act was a risk, but he said, "I am proud to be involved in a case that sought justice for a 13-year-old little girl."
O'Brien said prosecutors would consider their options, including a possible appeal, when they receive Wu's written judgment, which could be filed as soon as next week. Megan's parents, Ron and Tina Meier, were in court Thursday and briefly addressed the news conference.
Although they expressed disappointment at the judge's tentative reversal of Drew's conviction, they said the case had served a purpose by drawing attention to the danger of cyber-bullying.
Fighting back tears, Ron Meier said: "A jury of her peers did convict her, and that is a victory in itself."