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Cyberbullying, Website Terms of Use and the CFAA: the Lori Drew Case

Suffice it to say, very few people realize that violating the “terms of use”  (aka the small print that no one reads) on a web site may constitute violation of a federal law that has both criminal and civil penalties.  Yet, this was the basis for the prosecution of Lori Drew,  the woman who allegedly created a MySpace account under the name of “Josh Evans.”   Using this account, Drew developed an online relationship with Megan Meier, a 13-year-old girl.  “Josh Evans” said hurtful things to Megan, who took her own life.

Pamela Jones lays out the legal issues in this case on Groklaw, here, where she links to many key documents, and embeds the EFF’s amicus brief, in its entirety.

I was trying to figure out how to explain to you all that is involved in the case of the U.S. v. Lori Drew, the cyberbullying case that so many lawyers are expressing concerns about. I felt I needed a lawyer to explain it, but where would I find one who felt like doing some unpaid work, and over the Thanksgiving holiday to boot?

Then I had a brainstorm. I could show you the amicus brief [PDF] submitted in the case by the Electronic Frontier Foundation, the Center for Democracy and Technology, and Public Citizen, which was also signed by “14 individual faculty members listed in Appendix A who research, teach and write scholarly articles and books about internet law, cybercrime, criminal law and related topics at law schools nationwide”. Appendix A is at the very end. If you look at the list, you’ll see that it’s some of the finest and most knowledgeable lawyers and law professors specializing in cyberlaw. The brief was written by Jennifer Granick of EFF and Philip R. Malone of Harvard Law School’s Berkman Center for Internet and Society’s Cyberlaw Clinic.

I think when you read it, it will turn your hair white.  Continue reading ….

"Excuse Me, What Isle is the Chutzpah In?"

"Excuse Me, What Isle is the Chutzpah In?"

Whole Foods, in the wake of the D.C. Circuit’s decision reinstating (in a manner of speaking) the FTC’s challenge to the Whole Foods – Wild Oats merger, has filed a most unusual lawsuit in the federal district court in the District of Columbia. Whole Foods is seeking to terminate the FTC’s administrative proceedings investigating the merger. The stated grounds are violation of the Due Process Clause and the Administrative Procedure Act (the APA).

Here is a link to the complaint (scribd.com).

This lawsuit is unusual, to say the least. The essence of Whole Foods complaint seems to be that the FTC has prejudged the case and set an unreasonably aggressive discovery schedule. I’m not aware of any grounds for this legal theory at this stage of an administrative proceeding, but I’m sure that Whole Foods’ lawyers have done their homework, and that these claims have some legal merit. Stay tuned.

Judge Ralph Gants: SJC’s Gain Will Be BLS’s Loss

Today’s Boston Globe reports that Governor Deval Patrick will nominate Superior Court Judge Ralph Gants to the seat on the Supreme Judicial Court now vacated by Justice John Greaney. This is a great nomination – Judge Gants is truly a superstar of the Massachusetts Superior Court – without question one of the best, if not the best, minds on the state trial court. He has reportedly been on the “short list” of potential nominees for the last few weeks, and there was little question in my mind that he was the outstanding choice on that list. I expect his nomination to the SJC to be approved by the legislature in a heart beat.

Judge Judith Fabricant has been the number 2 judge in this session (the BLS2 session) since Judge Van Gestel’s retirement, but it’s unclear if she will provide what has become a tradition of leadership and excellence in the relatively short period of time since the BLS was created, or even whether she is interested in taking on the responsibility of leading the BLS. Being the “BLS1 Judge” is a significant commitment, and not every judge is well suited to this responsibility. Most of Judge Fabricant’s experience (before her appointment to the Superior Court in 1996) was as a criminal prosecutor and then an assistant attorney general. Whether she feels that she has the depth of experience appropriate to head the BLS remains to be seen.

It’s also worth observing that the Business Litigation Session is not a “statutory” court – it was formed in 2000 as a pilot project, and exists at the discretion of the Chief Justice of the Superior Court. Without a strong and committed leader (as Judge Van Gestel was), and as Judge Gants was beginning to prove himself to be), the future of the BLS is not certain.

So, the BLS’s loss of Judge Gants leaves the BLS in limbo – will Judge Fabricanttake over BLS1? If so, will she provide the level of quality provided by Allen Van Gestel and Ralph Gants? Who will become the new “number two” at the BLS?

Finally, it’s worth observing that the BLS appears to have emerged as a “feeder court” for the SJC – first Justice Margot Botsford (who was the BLS2 Judge before Gants), and now Judge Gants have gone from the BLS to the SJC. Whether this is coincidence (or whether the BLS attracts the best judges on the Superior Court) is open to debate, but the phenomenon is worth noting.