Not a Lexis Advance subscriber? Try it out for free.

United States v. Drew

United States District Court for the Central District of California

August 28, 2009, Decided; August 28, 2009, Filed

No. CR 08-0582-GW




This case raises the issue of whether (and/or when will) violations of an Internet website's 1 terms of service constitute a crime under the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. Originally, the question arose in the context of Defendant Lori Drew's motions to dismiss the Indictment on grounds of vagueness, failure to state an offense, and unconstitutional delegation of prosecutorial power. See Case Docket Document Numbers ("Doc. Nos.") 21, 22, and 23. At that time, this Court found that the presence of the scienter element (i.e. the requirement  [**2] that the intentional accessing of a computer without authorization or in excess of authorization be in furtherance of the commission of a criminal or tortious act) within the CFAA felony provision as delineated in 18 U.S.C. § 1030(c)(2)(B)(ii) overcame Defendant's constitutional challenges and arguments against the criminalization of breaches of contract involving the use of computers. See Reporter's Transcripts of Hearings on September 4 and October 30, 2008. However, Drew was subsequently acquitted by a jury of the felony CFAA counts but convicted of misdemeanor CFAA violations. Hence, the question in the present motion under Federal Rule of Criminal Procedure ("F.R.Crim.P.") 29(c) is whether an intentional breach of an Internet website's terms of service, without more, is sufficient to constitute a misdemeanor violation of the CFAA; and, if so, would the statute, as so interpreted, survive constitutional challenges on the grounds of vagueness and related doctrines. 2


Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

259 F.R.D. 449 *; 2009 U.S. Dist. LEXIS 85780 **


Disposition:  The motion for a judgment of acquittal was granted.


website, authorization, term of service, accessing, Internet, profile, users, terms, interstate, intentionally, vagueness, notice, violations, site, misdemeanor, guidelines, commerce, posting, visitor, communicate, conscious, exceeding, applicable law, photograph, courts, criminal prosecution, unauthorized access, breach of contract, criminal statute, governing law

Criminal Law & Procedure, Jury Instructions, Particular Instructions, Lesser Included Offenses, Fraud, Computer Fraud, Elements, General Overview, Trials, Motions for Acquittal, Penalties, Governments, Legislation, Vagueness, Interpretation, Business & Corporate Compliance, Contracts Law, Contract Conditions & Provisions, Arbitration Clauses, Contracts Law, Breach, Breach of Contract Actions, Remedies