A Stitch in Haste

A 14-year old girl who is alleging sexual assault from a MySpace impostor is suing — of course — MySpace:

The suit alleges that MySpace has "absolutely no meaningful protections or security measures to protect underage users."

"(MySpace) has got to take this seriously," said attorney Carl Barry, who is representing the girl and her mother. The suit seeks $30 million.

Some hasty stitches:

--Where there is no duty, there is no negligence and no grounds for a lawsuit. End of discussion.

--Assume the answer for a moment and insist that there must in fact be a duty on the part of MySpace. What exactly would the plaintiffs have MySpace do? Turn itself into a credit bureau or background check service? Provide free chaperons to every meeting?

--Even if there were a duty, the plaintiff must still prove proximate causation, which in this fact pattern is undercut by foreseeability. The general rule in tort law is that criminal acts by third parties are not considered foreseeable and break the chain of causation between the plaintiff (i.e., the girl) and the negligent party (i.e., MySpace).

--Is "assumption of risk" dead as a defense to negligence? What about comparative fault?

--Thirty million dollars?

More thoughts at Point of Law Forum, Joanne Jacobs.

UPDATE: Apparently MySpace was already in the process of changing its access policies such that (self-reported) adults cannot reach out to minors unless invited to do so. How that, or anything else, protects against would-be predators posing as minors remains unresolved. Also, the accused has filed his own lawsuit against MySpace. This is rapidly becoming a theater of the absurd.

A MySpace user — who identifies herself simply as a "20-year female in a relationship," has apparently plagiarized an entire blogpost of mine without permission, trackback, citation or attribution.

How rude.

Now since I refuse to sign up for MySpace myself, I have no direct way to contact the apparent plagiarizer. Which I suppose might be a good thing if I were a (hetero-)sexual predator, but is not such a neat-o idea when I'm the apparent victim of an intellectual property tort.

Clearly MySpace has breached a duty, of some kind, to "protect" me from compositional "predators" like this young woman apparently is. Surely MySpace could have instituted safeguards, of some kind, to prevent this apparent malfeasance. Undoubtedly MySpace should have foreseen, somehow, that illegal acts by third parties might occur via its site, even if established tort law says otherwise. Certainly MySpace showed a "greedy" indifference to me and should be held liable, somehow, even if "greed" is not actually a tort.

I want my $30 million.

Need more? At the bottom of the MySpace page in question — and I'm guessing the bottom of all MySpace pages, is the following:

©2003-2006 MySpace.com. All Rights Reserved.
Copyright fraud? That's a federal offense.

Make that $300 million.

(For those who are wondering, I discovered the plagiarism via the embedded links to other posts of mine, which of course show up via a routine Technorati search.)

UPDATE: The young lady has apologized in the comments below.

The twin canards of "sue the deep pockets" and "it's never the parents' fault" strike again:

In the lawsuit, the parents allege that Texas resident Kiley Ryan Bowers, now serving a nine-year prison term in California, "utilized the site to contact, seduce, meet, assault and then harass and torment" their 15-year-old daughter, Kristin Helms. Bowers pleaded guilty last year to two counts of interstate travel to have sex with a minor and transporting child pornography. Helms committed suicide while an investigation against [Bowers] was pending.

The parents allege that MySpace should be held liable, and sued both Bowers and the site. "MySpace provides a ready means for sexual predators to easily gain direct access to young, innocent children that those predators would otherwise have no ability, or a substantially decreased ability, to locate or contact," the suit alleges.

It may well be true that MySpace "provides a ready means for sexual predators to easily gain direct access to young, innocent children" (we'll leave aside the gratuitous use of the word "innocent" and stipulate that the sexual intercourse between the two, while clearly not forced, was also not strictly "consensual" given the girl's age).

But "providing a ready means" is simply not a tort. Where, exactly, is the negligence by MySpace? Putting aside the pesky provisions of the Communications Decency Act (i.e., that insulate Internet sites from liability related to content posted on them), basic negligence law requires that a duty existed and was breached for there to be liability. What, exactly, was the duty owed by MySpace to Helms or her parents?

Was it this?

MySpace recently agreed to implement measures aimed at protecting youngsters on the site, including banning known sex offenders from the site and setting defaults on the profiles of teens to "private," so they can't easily be accessed by strangers.

Just two problems: (1) Bowers wasn't a "known sex offender" at the time (he certainly is now); (2) they didn't meet on MySpace — they met via Yahoo! IM and migrated their online contact to MySpace after the fact (i.e., Bowers was not a "stranger" to Helms when they started interacting on MySpace).

More:

They [her parents] took away her computer, shut down her MySpace.com profile and forbade her to contact Bowers. But Kristin Helms secretly communicated with Bowers, calling him behind her parents' back and using school computers to contact him.

Curious that the parents are not suing the school. That would be a far more viable negligence claim (it is trivial to block a website on a computer).

In any case, not every tragedy is a lawsuit, not every party involved in a criminal act is a criminal and not every party in a tortious act is a tortfeasor. The parents should certainly feel free to pursue Bowers to the fullest extent the civil law allows. But MySpace simply isn't responsible, any more than the store that sold Bowers the shoes he wore to his meetings with Helms or the station that sold him the gas he used to drive to her.

---

Meanwhile:

A federal judge in New York ruled on Tuesday that a lawsuit contending that an NBC television series on pedophiles had played a role in the suicide of a Texas prosecutor two years ago could move forward.

The decision was a defeat for NBC Universal, producer of the "Dateline NBC" series "To Catch a Predator," which had asked the judge this year to dismiss the lawsuit.

The $105 million suit was originally filed in July by Patricia Conradt, the sister of Louis W. Conradt Jr., an assistant district attorney in Rockwell County, Tex., who shot himself in November 2006 as he was about to be arrested by the police and accused of trying to solicit a minor online.

The alleged tort is the infamous "intentional infliction of emotional distress," which is always a thorny legal question that can vary widely from state to state. Another fascinating claim that the judge did not summarily dismiss is that NBC staff essentially became "state actors" — de facto police — and that the Fourth Amendment therefore applies to them (for example, a SWAT team was deployed even though the suspect had no history of violence — was that done for NBC's cameras, and was it constitutional?).

Stay tuned. (No pun intended.)