Great cases, like hard cases, make bad law.
— Justice Oliver Wendell Holmes

Justice Holmes wrote that 104 years ago. But a sad contemporary case from St. Charles County may prove that his warning still holds true.
Thomas O’Brien, the U.S. attorney in Los Angeles, is trying to stretch computer-crime statutes to cover actions never envisioned by Congress. Anyone who ever has used a pseudonym on the Internet or has “flamed” someone in an e-mail or blog posting might want to pay attention.
The case was a hard one, indeed. It seems that two St. Charles adults and a teenager set up a phony account on MySpace, a social-networking Internet site, masquerading as a teenage boy named Josh. They lured a troubled 13-year-old girl name Megan Meier into an on-line friendship, then broke it off. In a final e-mail, “Josh” told the girl, cruelly, “The world would be a better place without you.” Within an hour, the girl hanged herself.
This is exactly the sort of emotional case about which Justice Holmes warned. It “appeals to the feelings and distorts the judgment,” as Mr. Holmes said. It tempts prosecutors to distort the law to fit the case, possibly creating unforeseen dangers for the future.
The U.S. attorney in St. Louis and the circuit attorney for St. Charles both decided against bringing charges in the case. They found no criminal law that covered the conduct in question.
But in Los Angeles, location of the MySpace computer servers, Mr. O’Brien, the U.S. attorney, bent the statutes to make them fit the behavior and persuaded a grand jury to indict one of the adults, Lori Drew, 49, of O’Fallon, Mo.
The indictment revolves around the agreement that MySpace users must endorse to gain access to its services. These sorts of documents are required by all sorts of websites, and we suspect that most people click the “agree” button without reading them. The idea that a person could go to prison for violating one is scary.
Mr. O’Brien says Ms. Drew’s behavior violated the service agreement. His view is that that made Ms. Drew guilty of “accessing protected computers without authorization.” That refers to a criminal law enacted to address computer hackers, not people using a social network.
There’s a clear danger in using this sort of tortured two-step to try to put people in prison. If violating user agreements is a crime, millions of us could be committing crimes and not know it. That’s not what Congress intended.
Prosecutors are granted considerable discretion in the application of existing laws, but they don’t have the latitude to create law out of whole cloth. That is the province of Congress and state legislatures.
Earlier this month, the Missouri Legislature passed a bill that expands state harassment statutes to include messages sent by computer. That’s a more sensible way of addressing the sort of conduct of which Ms. Drew is accused.
Unfortunately, the Missouri bill also makes it a crime to send messages intended to frighten, intimidate or cause “emotional distress,” vague terms that are all but guaranteed to create confusion in enforcement. Criminalizing distressing messages could raise questions about a lot of chatter between parents and their teenagers and between bosses and employees.
The governor should send the bill back with a request that it be narrowed to cover true harassment without infringing on the robust, lively exchanges that characterize personal Internet communications.