A former federal prosecutor has decided to take on his ex-employer in defending a woman against charges that she violated federal laws in allegedly creating a MySpace account used to bully a teenage girl who committed suicide.
Orin Kerr, professor of law at George Washington University Law School, was a criminal trial attorney in the Computer Crime and Intellectual Property Section at the Department of Justice as well as a special assistant U.S. attorney for the Eastern District of Virginia.
But earlier this year when federal prosecutors in Los Angeles indicted a woman named Lori Drew with violating the Computer Fraud and Abuse Act — an anti-hacking law — for allegedly violating the MySpace terms of service in providing false information to set up the MySpace account used to harass the teen, Kerr didn't hide his disagreement with the charges.
Kerr wrote on the Volokh Conspiracy blog that the government was essentially charging Drew with criminal trespassing on MySpace's server for allegedly providing false information to open a MySpace account under the false identity of a nonexistent teenage boy. Kerr said this essentially made it a federal crime to violate any online terms of service contract.
"Since everyone who uses computers violates dozens of different [Terms of Service] every day, the theory would make everyone who uses computers a felon," he wrote at Volokh Conspiracy.
Today Kerr announced he's joined Drew's defense team as pro-bono co-counsel.
Kerr didn't want to discuss the pending litigation too much, but told Threat Level he decided to take on the case with Drew's current attorney, Dean Steward, because, "The stakes here are very high."
"If the government succeeds in this case," he said, "they can pretty much bring charges against anybody who uses the internet. And Congress never intended that. This is a case with really important civil liberties stakes for anyone who uses the internet."
A federal judge so far has refused to dismiss the case, though many legal experts agree with Kerr that the federal charges are based on an alarming premise and constitute a misuse of the federal hacking statute.
