State governments and federal prosecutors are cracking down on individuals who use the internet to harass or threaten others.  On June 30, Missouri Governor Matt Blount signed into law a measure that criminalizes online harassment.  This new law represents a marked change in the legal treatment of this form of harassment, also known as “cyber-bullying.”  Other states have enacted legislation to help stop cyber-bullies, but none has gone so far as to impose jail sentences on violators.  The Missouri law, however, criminalizes the transmission of an electronic communication for the purpose of frightening or disturbing another.  V.A.M.S. 565.091 (not yet chaptered).  Adult violators of this new law face up to 4 years in prison if they perpetrate the offense against a child.

The legislation responds to the 2006 death of 13-year old Megan Meier, who committed suicide after being harassed repeatedly on MySpace.  The harassment was allegedly perpetrated by Lori Drew, a 47-year old woman who falsely assumed the identity of a fictitious teenage boy on MySpace and posed as this character to develop an online relationship with Meier.  The girl’s suicide was allegedly prompted by disparaging comments made by Ms. Drew disguised as the teenage boy.  The tragedy outraged the Missouri community in which it occurred, but local authorities were unable to prosecute Ms. Drew because cyber-bullying was not illegal.

Federal prosecutors, however, have been more inventive, using unconventional means to go after Ms. Drew.  On May 15, the U.S. Attorney in Los Angeles obtained an indictment against Drew under the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, a law most commonly used to prosecute computer hackers who steal sensitive information stored on databases or corrupt computer systems.  Ms. Drew’s indictment alleges that she provided false information in order to register her MySpace account and violated various aspects of the company’s terms of service, including prohibitions on soliciting information from minors and using information gathered from the website to harass, abuse or harm other people.

The indictment essentially asserts that by providing false information to access MySpace and violating the terms of service, Ms. Drew hacked into the MySpace network, causing damage to the network and physical injury to Meier.  This novel use of the CFAA demonstrates the challenge of prosecuting serious online harassment in the absence of laws such as Missouri’s.  Successful prosecution of Ms. Drew under the CFAA could have far wider implications for users of online networking sites, suggesting that violation of a website’s terms of service could give rise to criminal liability.

For a discussion of cyber-bullying and the use of the CFAA in prosecuting Ms. Drew, please view this clip of the Jim Lehrer News Hour, featuring Proskauer Partner Christopher Wolf.

Proskauer summer associate Matt Jackson contributed to this report.