Michelle,
I’m kind of tentative about responding here, I have read criticism of this indictment on high-flown legal blogs and found the reasoning wanting, and said nothing.
First, know who charged Drew, what they actually charged her with doing. It’s not what you say.
She is charged with violating TOS, per se, but violating permitted use of a private commercial webservice computer located in another state, in order to gain unauthorized access to information about another person in furtherance of a tortious act, and conspiracty to do these things. ALL of those things, PUT TOGETHER. Not “this thing hers, and that over there too, but boolean “THIS AND THAT.”
My frank impression at the law blogs, is I have found them trying to read both the charges and the applicability of the statute through a desireability filter, not cold appraisal of whether the technical language of the statute is fulfilled, or whether Drew’s actions are the criminal equivalent of some other form of unauthorized access to protected information.
The “tortious action” element is not murder nor does it have to be.
Her tort is alleged to be, and need only be, trying to intentionally inflict emotional distress (while doing the other things she is charged with doing).
The fact that there is no equivalent state law to produce an indictment for the same reasons, means only that Missouri has no equivalent statute for this violation of interstate commerce law.
That doesnt mean that the Federal charges are bogus, It does’t mean that interstate commerce laws should not apply. Nor that the state made any mistake. Assuming there is a law under which to charge Drew in Missouri, misjudgment or proper use of discretion by Missour prosecutors contributedto their decision not to charge under some local law.
If Drew had used some local BBS service, the Feds would not be involved.
Jack Banas, the local prosecutor “found” a statute to charge Drew with, but (inexplicably) determined it did not apply because in his determination there had been no attempt to harm Megan. I could go on at length about that decision and have elsewhere, because there were both good and bad reasons to do so but anything thoughtful would be too long to include here.
Now, it seems to me the court will have to decide if Drews admission that her chief motivation was to gain access to Megan’s private Myspace page, otherwise hidden from users is getting unauthorized information. Megan invited “josh” to view it, but Drew used a trojan boy to do it.
If Drew had created a trojan horse on a page that Drew had created, and Megan willingly clicked on it, that would be “hacking” and fit anyone’s definition of the statute.
So why is the “trojan boy” different from the “trojan horse”?
Well?
Also, about that door note analogy: If I tresspass, and I commit a tort on private property, say, leave you a note that is crafted to deceive, with shocking news in it – say , I have run over your child and driven her to the hospital- but the whole thing was just a hoax to punk you, the tresspass and the reasons for doing it could be criminal.
