Left to chance

Prosecutors Set Stage to Appeal Lori Drew Ruling

Federal prosecutors in Los Angeles have filed a notice of appeal in response to the ruling in the Lori Drew cyberbullying case, where a judge threw out the government’s case against Drew for allegedly using a fake MySpace account to drive a teenage girl to suicide.

Assistant U.S. Attorney Mark Krause filed the notice on Friday in the 9th Circuit Court, indicating that the government may appeal a judge’s ruling in July that acquitted Drew of three misdemeanor counts.

The feds’ prosecution of Drew relied on a controversial reading of a federal hacking law — essentially prosecuting Drew for violating MySpace’s terms of service by not being truthful in a profile.

But U.S. District Judge George Wu said the government’s theory was unconstitutional. Letting that interpretation stand would ultimately have given prosecutors the power to criminally prosecute anyone for violating a website’s terms of service, Wu reasoned, and “would convert a multitude of otherwise innocent internet users into misdemeanant criminals.”

Drew and two others created a fake MySpace account to harass 13-year-old Megan Meier, who later committed suicide. Federal prosecutors got involved after local authorities could not find a way to bring charges.

The filing, however, doesn’t mean the government will pursue an appeal.

“A final decision has not been made,” said Justice Department spokesman, Thom Mrozek, who indicated that the filing was made as a placeholder until prosecutors can decide whether to pursue an appeal. Federal rules require parties to file a notice of their plan to appeal within 30 days after a ruling.

“There are timetables to preserve our appellate rights, so that’s what we did last week,” Mrozek said. “In terms of whether or not we will pursue that or withdraw that notice of appeal, that will depend on a final decision from the solicitor general in Washington.”

In July, Wu conditionally overturned the jury convictions, which had found Drew guilty of three counts of violating the Computer Fraud and Abuse Act for breaking MySpace’s terms of service agreement.

Wu’s ruling, however, did not become official until he filed his written judgment on Aug. 31, at which point the clock for filing a notice to appeal began ticking.

The 9th Circuit Court will now have to set a schedule for filing the opening brief in the appeal. Mrozek said given the court’s current schedule, it could be four months or longer before the government’s brief is due.

Drew was initially charged with three felony counts of violating the Computer Fraud and Abuse Act and one count of felony conspiracy to violate the statute. Last November, a jury convicted her instead of lesser misdemeanor charges on the first three counts and deadlocked on the conspiracy charge. Prosecutors said at the time they weren’t sure whether they’d attempt to retry Drew on the fourth charge.

Eight months later, Wu overturned the convictions on grounds that the statute was unconstitutionally vague.

Orin Kerr, a former Justice Department prosecutor who now teaches law at George Washington University, plans to work on Drew’s defense if the government pursues an appeal.

Kerr wasn’t available for comment, but on his blog on Friday he noted that the 9th Circuit Court just recently rejected a number of cases that prosecutors in the Drew case had relied on for their broad interpretation of the CFAA.

Photo: AP Lori Drew

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