If there is a genuine need for a cyber-harassment or cyber-bullying statue, then by all means, let’s pass one.  Much has been made in the Drew case of the fact that an adult was "harassing" a child.  But would it have really mattered to MTM if the online comments and dumping were done by a real, rather than illusory, "Josh Evans?"  Would the pain have been any less and the result any different?  If we do draft such a "harassment" statute, what would –- or constitutionally could -– it say?

The fictional Josh apparently told MTM that "the world would be better off without you" hours before the fragile and depressed MTM hung herself.  While many States have criminal statutes regarding "promoting a suicidal act" Missouri does not appear to be one of them.  If Drew/Evans really intended that MTM kill herself, then this could likely be prosecuted under such a statute.  But not every imperative to "drop dead" is the solicitation of suicide.

What kinds of "cyber harassment" should we make a crime? This strikes a delicate balance between the right of free and sometimes uncomfortable speech and the right to live in a peaceful and civilized society.  Is saying "I hate you" a hate crime if said to a 13 year old by another 13 year old?  What about an adult to a child? A mother to a daughter? Vice versa? 

On May 15, 2008 the Missouri state legislature passed a new bill which would define "harassment" as communications of any kind conducted to knowingly frighten, intimidate, or cause emotional distress or knowingly using unwanted expressions that put the person in reasonable apprehension of offensive physical contact or harm or knowingly making unwanted communications with a person.  Under that statute then, texting a friend after they tell you, "I don’t think we should talk anymore," might be a prosecutable offense.

Similarly, do we really want to make providing false information in violation of TOS a "computer trespass" punishable by the federal government thousands of miles away from where the statement was made or read? Certainly, transparency breeds accountability.  A recent federal law made it both a crime and an enhancement to the federal sentencing guidelines to lie on a domain registration.  Other countries like India and Germany are considering passing statutes also making it a crime to provide false information online.  In the United States, such actions were considered criminal only when done as part of a "scheme or artifice to defraud" someone out of "money or property."  As noted above, there are many good reasons NOT to provide accurate information online, most notably protecting privacy.  The debate about false information is one we should have openly, and not attempt to shoehorn this crime in a Terms of Use debate.

The most troubling aspect of the California indictment is the fact that it might just succeed.

First, while we can argue that this is not what the statute was intended to prohibit, the language of the statute is capable of that interpretation.  Just as with any "trespass" statute, the owner of the property, in this case Fox’s MySpace, gets to make the rules about who is allowed in and who is a trespasser, and the criminal law enforces these rules.  If Drew’s lawyers file a motion to dismiss, it might be difficult for a judge to find a deficiency in the indictment itself.  The Indictment tracks the language of the statute, and may be legally sufficient.  Moreover, public and jury outrage over the egregiousness of Drew’s conduct may lead to acceptance of the "breach of contract, go to jail" theory of liability.

In the end, however, the precedent would open up the field of prosecutable offenses. Workers could be prosecuted for using their computers for personal reasons. Members of online dating sites could be prosecuted for making themselves sound more exciting. And, anti-government protesters who don’t provide accurate information to their ISP’s, IM providers, or social networking sites would also face the threat of prosecution.

While the government’s response would likely be, "Oh, don’t worry. We would never prosecute you." The reality would require that that statement end with "... yet."