U. S. District Judge George Wu who presided over Lori Drew’s cyberbullying trial continued the sentencing until July 2. She was convicted of three misdemeanor counts of violating the Computer Fraud and Abuse Act (18 USC 1030) The jury either found her not guilty or hung on felony counts and now the U. S. attorney is seeking three consecutive sentences of one year each for the misdemeanor convictions. One year is the maximum sentence on a misdemeanor.

The problem is that she may not have violated any law that was on the books at the time that she, her 13 year old daughter and an employee created the fake person named Josh Evans and used the identity to communicate with Megan Meir on MySpace. Rumor had it that Megan Meier. a former friend of Drew’s daughter was spreading malicious rumors about her daughter. Drew created the Josh Evans character in order to get Meier to admit that she spread the rumors.

Meier was emotionally weak and she had been prescribed psychoactive medications. At one point in the MySpace communications, “Josh Evans” says to Meier “The world would be better off if you were never born.” Twenty minutes later, Meier tragically committed suicide.

The authorities in Missouri where Drew and Meier lived investigated the incident and were unable to find any violation of the law. But the U. S. attorney in Los Angeles where MySpace is located came up with a creative way to charge Drew by alleging that she violated the Computer Fraud and Abuse Act. Section a(2)(c) of the act reads:

(a) Whoever–

(2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains–

(C) information from any protected computer if the conduct involved an interstate or foreign communication;

The government’s theory is that by creating a false identity on MySpace, Drew violated the MySpace rules and therefore accessed the MySpace computer without authorization. But, assuming that this is the type of behavior that Congress was attempting to forbid when it passed the act you still have to show that Drew intentionally accessed the MySpace computer with the intent to gain access to a computer she knew she did not have authorization to access. There is no evidence that she knew the MySpace rules or that she intended to violate the rules when she created the “Josh Evans” character.

Besides the lack of proof that Drew intentionally accessed a computer without authorization the government has several other problems. The law was written to prevent computer hacking. Due process requires that a law give notice to those who may violate the law of what conduct will violate the law. The courts have consistently held that to determine what conduct will violate a law you first look at the plain meaning of the law and secondly if the plain meaning of the law is vague you look at the intent of Congress in passing the law. There is little in Section 1030 that indicates that the law can be violated by bullying a neighborhood child. Such harassment may not be nice. It may be mean but it does not seem to violate the plain meaning of the law. Furthermore, when we look at Congressional intent in passing the law it is clear that it was meant to punish computer hackers and the theft of trade secrets–not bullies who harass neighborhood kids.

Since the arrest of Drew many states have passed laws, specifically punishing cyberbullies. But these laws were passed after Drew bullied Meier. The Constitution prohibits ex post facto laws. Ex post facto law are those that punish behavior that occurred prior to the passage of the law. Again the purpose is that a person should know what conduct will violate a law. Of course one does not know what conduct will violate a law that is only passed after the conduct occurred.