No bill of attainder or ex post facto law shall be passed

What legal issue was relevant to the MySpace® suicide? Really, there was none; two sets of prosecutors declined to take it up, for the very good reason that no existing law adequately covered it, and the jury wisely convicted Lori Drew on a lesser charge. Retired FBI agent and internet safety consultant Jeff Lanza told the Kansas City Star, "Legally, this case has nothing to do with suicide."

U.S. Attorney Thomas P. O'Brien tortured an indictment out of the Computer Fraud and Abuse Act, specifically a section that provides penalties for anyone who

intentionally accesses a protected computer without authorization, and as a result of such conduct, causes damage; and...the modification or impairment, or potential modification or impairment, of the medical examination, diagnosis, treatment, or care of 1 or more individuals

O'Brien's biographical page notes that he actually did go to law school (at the University of San Diego, where he was associate Editor of the Law Review); perhaps more significantly, he is a graduate of the famous Top Gun training facility, which is strangely apt, since he seems to build cases the way Tom Cruise flies. If his reasoning in this case means anything at all, it means that if I had told my former boss what I was often tempted to say, that he could best benefit his department by leaping from the roof of the building, and if he had done so, my conduct might have been reprehensible but immune to penalty, but if I had opened a hotmail® account under a false name, transmitted the same opinion in a single e-mail, and the message had been sufficiently persuasive, I would be guilty of a federal crime.

Of course O'Brien was thinking, not of my former boss, but only of vulnerable teen girls, as he explicitly stated; the problem, as he seems never to have realized, is the gap between what he wishes were true and what the law actually says. (Not to mention his absurdly coy formulation: "If you're going to attempt to annoy or go after a little girl and use the Internet to do it, this office will hold you responsible." Really? Annoying someone is now a federal crime?) As Robert Bolt has Sir Thomas More reply in his own defense, "The world may construe by its wits. This court must construe according to the law."

It goes without saying that Drew's act was despicable, a taint one hopes will not be erased no matter how often she appears on talk shows to discuss her progress in learning to feel better about herself. But suicide from shattered hopes and deceit in love are as old as society itself; what happened to Megan Meier could as easily have occurred with equally tragic results 150 years ago, with paper and pen. If registering a false name on a network server becomes a felony, does expressing false sentiments in a thank-you note constitute mail fraud? The real issues here are the creepy strain of infantilism permeating much of our culture, the rash misinterpretation of laws to punish acts they were never meant to forbid, and the nearly superstitious imputation of unique and irresistible power to technology in itself.

Meanwhile, HR 6123, offered in the House of Representatives by Congresswoman Linda T. Sánchez of California, is a step in the right direction:

Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

Sánchez's bill, though originating with a concern about the welfare of minors, wisely extends protection to all. And yes, I know that language such as "substantial emotional distress" and "severe...hostile behavior" are subject to interpretation, but so are "reckless driving" and "disorderly conduct"; in any case, both I and the 15-year-old down the street are entitled to a remedy if someone repeatedly transmits "I want to make you scream" to our respective in-boxes.

Speaking of severe behavior, one hopes that even O'Brien could find sound legal grounds for prosecuting those who trampled a Wal-Mart employee to death this morning in Valley Stream, New York. On my budget, I sometimes shop at Target (where, in fact, a heedless guard very nearly did trample my son, years ago, when my son was quite small), which I suppose must not be that much different, but there is something about the idea of Wal-Mart that makes me inclined to see shopping there at all as a candidate for a misdemeanor charge, at least.

© Michael Huggins, 2008. All rights reserved.