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Foreperson in Drew Jury "Always" Reads Terms of Service, Feels Jail May Be Appropriate for "Lazy" People Who Don't:
As I noted below, the forewoman in the Lori Drew case has been speaking to the press. Here's what she told Kim Zetter of Wired:
  "Trust me, I was so for this woman going away for 20 years," Valentina Kunasz told Threat Level. "However, on the harsher felony charge, it was very hard to find her guilty on the specific [evidence] given to us."
  Kunasz said despite all the debate outside the courtroom about the prosecution's use of an anti-hacking statute to charge Drew for violating a website's terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a website's terms of service should be prosecuted.
  "The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service," she said. "I always read the terms of service.... If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable."
  Should they be punished with a federal prison sentence?
  "I guess that's an option for debate," Kunasz said. "When it's gross circumstances of someone killing themselves.... "
  I'll withhold comment under the circumstances, except to note that this post by Zetter on the chances that the verdict will survive appellate review is also worth reading.
AntonK (mail):

"The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service," she said. "I always read the terms of service.... If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable."
That's the biggest pile of BS I've ever read.
12.2.2008 2:41pm
Ben P:

That's the biggest pile of BS I've ever read.


I would tend to agree. I only began to read them during law school because I was intellectually curious as to what they would put in there.

But even now I typically only scroll through them and stop if something catches my eye as being interesting.
12.2.2008 2:43pm
Dilan Esper (mail) (www):
I remember in 2000 learning for the first time that lots of voters didn't clean the chad off of the back of the punchcard ballots like I always did (because I read the instructions). That probably colored my view of the Florida recount somewhat (I was a little less sympathetic than most Democrats to arguments about ballot design confusing voters). I think it's very difficult for anyone to realize that their own idiosyncracies are not necessarily followed by the rest of the public.
12.2.2008 2:47pm
Sk (mail):
"Steward asked Wu for a judgment of acquittal based on the defense's view that the prosecution failed to prove that Drew knew the MySpace terms of service existed, and that she knew what they said and intentionally violated them."

This is from the Wired article, and I find it a bit disappointing. As many of the comments at Wired noted: most people don't read any of their legal agreements (when they buy a car, when they buy a house, when they sign up for Health Insurance, etc)-but that is not an excuse from being held to the obligations to which they sign. If your defense depends upon such a flimsy legalism, I fear you are losing the moral edge in the case.

As it now stands, the prosecutor charged a woman with a crime that he really didn't believe in ("terms of service violations"), in order to punish her for behavior that 'everybody' knows she did (be mean to a depressed girl, and potentially push her to suicide). The defense is making an argument for the defense that nobody believes in ("just because I signed up for a website doesn't prove that I understood what I was signing up for-therefore I shouldn't be obligated by it"), in order to keep her out of jail for what 'everybody' knows is the real reason (what she did was mean, but it wasn't illegal). You are really losing the moral high ground by making silly arguments like this-which are the nitpicky equivalent of the prosecutor's argument.

Stick to the broader issue (I think Eugene was quoted as addressing it): violating terms of service may be a breach of contract, but its not a crime.

Sk
12.2.2008 2:52pm
PhanTom:
This reminds me of the jurors we get in products liability cases who always read the instruction manuals that come with their toasters.

--PtM
12.2.2008 2:53pm
gee mail (mail):
SK-

With the exception of rare strict liability crimes, intent is always a requirement in criminal prosecutions, and is not merely a "legalism". Bad analogies about paying off mortgages and car loans are not applicable to prosecutions in criminal law.
12.2.2008 2:55pm
Bob White (mail):
I remember my Contracts prof (a Conspirator, as it happens) saying "You, like me, probably sign most consumer contracts without reading them." I will occasionally scan TOS, particularly if I'm signing up with a new enterprise, but that's about it.
12.2.2008 2:58pm
Peter Twieg (mail):
In my experience, this is sometimes true - namely for those who don't use computers or software very much at all. I imagine most people look over the first few ToS that they see, and if those are for the only products you ever use..
12.2.2008 3:01pm
Steve:
Stick to the broader issue (I think Eugene was quoted as addressing it): violating terms of service may be a breach of contract, but its not a crime.

Maybe it shouldn't be a crime, but if Congress chooses to criminalize what you would otherwise consider an ordinary breach of contract, it most certainly becomes a crime.
12.2.2008 3:01pm
Junior Assoc.:
It seems to me that the issue of whether a party to a contract is presumed to have read the contract is entirely different than whether a criminal defendant had the necessary mens rea. Drew could be presumed to have read the ToS for BoK purposes, but you can't presume knowledge for a criminal case.
12.2.2008 3:03pm
OrinKerr:
Steve,

Given that Congress hasn't passed a law making it a crime to violate TOS, your comment is interesting but hard to understand in the context of this thread. I'm curious, though: What's your view of the constitutionality of such hypothetical legislation in light of the void for vagueness and overbreadth doctrines?
12.2.2008 3:06pm
PersonFromPorlock:
Speaking of Congress, how many of them fully read the bills they vote on? Including bills about Terms of Service?
12.2.2008 3:07pm
einhverfr (mail) (www):
SK, while I agree with you to some extent, I would note that the defence atty's job is to poke any holes possible in the prosecutor's case. This means taking advantage of any procedural mistake or the like by the prosecutor.

I sincerely hope that the rule 29 motion is denied and that the case is overturned on appeal because we need the substantive legal question addressed. IMO, the key legal issues have been answered by Wu, and he should not mess with issues of fact.
12.2.2008 3:11pm
Anderson (mail):
"The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service," she said. "I always read the terms of service.... If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable."

Did Drew's counsel not voir dire the jury on this topic? I would've stricken this woman like the plague, if I had any strikes left.
12.2.2008 3:17pm
Bama 1L:
I know nothing at all about criminal defense practice, but I have to wonder why the defense did not prefer a bench trial.
12.2.2008 3:21pm
OrinKerr:
Bama1L,

Drew did in fact seek a bench trial, but the U.S. Attorney refused, insisting on bringing the case before a jury.
12.2.2008 3:26pm
Philistine (mail):
From the Wired article:

The defense says prosecutors could not appeal a judgment of acquittal.



??

I'd always understood granting a rule 29 motion was appealable by the Government.
12.2.2008 3:27pm
pete (mail) (www):
I do not read TOS agreements in depth, but do look pretty thoroughly through the paperwork of major financial agreements I make like car loans and mortgages. I have agreed to dozens of TOS agreements, but I have only applied for 4 loans in my life so it is not that much of a time committment and when going through closing on my house a few years ago caught a minor mistake they had made in the paperwork for the loan.

It depends on the time constraints and personality of the person, but some people do read these things.
12.2.2008 3:32pm
Suzy (mail):
I always read the ToS, the contracts, the fine print. I don't always understand the implications of what I read, but I read them, so I don't have a lot of sympathy for arguments that imply nobody does this, or it's bs to expect it.

However, I completely agree that failing to do it should not be a criminal act, and I don't suppose Congress was trying to create that situation with its new law, either. Seems like that's all that really matters here.
12.2.2008 3:36pm
Steve:
Given that Congress hasn't passed a law making it a crime to violate TOS, your comment is interesting but hard to understand in the context of this thread. I'm curious, though: What's your view of the constitutionality of such hypothetical legislation in light of the void for vagueness and overbreadth doctrines?

Whether Congress has, in fact, chosen to criminalize such conduct is a legal question which your client appears to be on the losing side of, at least for the time being. When I think of "unauthorized access to a computer" I think of hacking, theft of passwords and the like, but it's not absurd to argue that it also applies to access in violation of a TOS agreement.

It's easy to imagine that a website like MySpace, or a dating website perhaps, would have a commercial interest in ensuring that everyone using their site is who they purport to be, and in refusing access to anyone who declines to present themselves honestly. Now, maybe that should just be left as a private commercial interest, but I don't see why Congress couldn't criminalize it if they felt it was in the public interest or if the right lobbyists requested it of them.

The problem is that there's a lot of space between a prominent legend on a website reading "ONLY BANK CUSTOMERS MAY USE THIS SITE TO OBTAIN INFORMATION" and a technical requirement buried in paragraph 21 of a TOS agreement that nobody reads. It's for this reason that an overbreadth argument is appealing to me, at first blush. The government shouldn't be allowed to criminalize an immense range of human activities just so it has the right to prosecute the one time in a million that a tragic death occurs. I sorta wonder, though, if it isn't really more of a mens rea argument - if you're in violation of some obscure technicality, maybe the fault is that you simply have no idea your access to the website is unauthorized.
12.2.2008 3:36pm
Constantin:
Speaking of Congress, how many of them fully read the bills they vote on?

Google "barrel shroud" and clink on a few of links on the first results page. That should give you a good idea.

If I recall, this comment from the juror isn't even the worst thing she's said since the trial ended. The "made her kill herself" argument featured prominently in the others, too.
12.2.2008 3:42pm
Joe Bingham (mail):
TY for the helpful pointer.
12.2.2008 3:49pm
OrinKerr:
Steve,

I think such a reading is in fact absurd, which is why no one has ever brought such a prosecution in the 24 years of the CFAA and why the U.S. Attorney's Office in Missouri declined to prosecute. But if you believe violating TOS is a crime, then I would refer to to our TOS, which I believe you are now violating. (And if you are not violating it, I can just amend them so you are.)
12.2.2008 3:52pm
Anderson (mail):
And if you are not violating it, I can just amend them so you are

Prof. Kerr may wish to look to the new policies of American Airlines, and amend the TOS so that non-viewers of the VC are in violation of those terms.

"Tough times unfortunately mean tough measures," American Airlines president Gerard Arpey said. "It's never an easy decision to ask our loyal customers, as well as thousands of people chosen at random out of a telephone book, to pay a little extra, but that's just the reality of today's economic climate. We hope all Americans will understand this when receiving one of our new bills in the mail."

Arpey said that non-passengers of American Airlines should expect to pay a small fee when making Greyhound bus reservations, choosing to drive to their final destination, or simply being a citizen of the United States with a valid Social Security number.

Arpey went on to note that some additional charges would also apply, including a $15 fee for every piece of luggage customers have inside their bedroom closet, and a one-time payment of $40 for any American whose name is Greg.

"We are confident that these new measures will not discourage customers from flying with American Airlines," vice president Margaret Wilkinson said. "However, we'd like to remind our customers that there is a 'discouraged-from-flying-with-American-Airlines' charge if they do in fact choose not to fly with us."
12.2.2008 3:57pm
OrinKerr:
Actually, Steve, to keep from having to deal with an ambiguity in our TOS, let me announce an official amendment to our TOS: Any visit to the VC by any person who has authored a comment using the screenname "Steve" is unauthorized. I suppose it's worth pointing out that because a visit to the VC with the intent to post a comment would be a crime to further an additional crime, under the government's theory of the case any future comments by Steve would be a federal felony rather than a misdemeanor.
12.2.2008 3:59pm
Don de Drain:
Orin K --

Very interesting that the government insisted on a jury trial. When I worked as an AUSA in LA many years ago (in the Tax Division), on my first day on the job, the section chief told me that there was one rule that I could not violate: If the other side wanted to waive jury trial (which you can get in a tax refund case), NEVER, EVER object.

PersonFromPorlock--

Please, please don't get us sidetracked on the issue of whether CongressCritters read what they enact. I'd like Congress to pass a law which makes it a violation of Title 18 for a Congressperson to vote on a bill without having read the entire bill and all Committee Reports. Such a law would, at a minimum, allow courts to ascertain "Congressional intent" with a straight face. (Congressional staff is, on the whole, very competent, so no slight is intended towards them. But the members of Congress really should understand what they are doing, to the extent that is possible.)


PersonFromPorlock--

Please, please don't get us sidetracked on the issue of whether CongressCritters read what they enact. I'd like Congress to pass a law which makes it a violation of Title 18 for a Congressperson to vote on a bill without having read the bill and all Committee Reports. Time consuming, for sure, but such a law would, at a minimum, allow courts to ascertain "Congressional intent" with a straight face. (No slight is intended towards Congressional staff, which generally does a great job for low pay. But I want the members of Congress to understand what they are enacting, to the extent they are capable of doing so.)
12.2.2008 4:11pm
themighthypuck (mail):
I've drafted a TOS. The only ones I read were the ones for similar services as "research". It probably isn't very efficient for people to read TOS. This doesn't mean it isn't fair if you get burned by one.
12.2.2008 4:14pm
lucia (mail) (www):
Looks like I'm still ok: I've never used the name "Steve" to author a comment at VC!

(I'm still presuming that I am deemed nice. As an engineer, my crack legal analysis skills tell me that part time work at a government owned national laboratory which is operated by U of Chicago does not place me in the "government employee" category. By law, I work for the U of C!)
12.2.2008 4:20pm
Steve:
But if you believe violating TOS is a crime, then I would refer to to our TOS, which I believe you are now violating.

Well sure, and you're welcome to ask the authorities to prosecute. I'll even make the prosecution's case easier by admitting that I have, in fact, visited Alaska. But despite your strategic effort to suggest that we are now living in a dark era where all of us are at risk of prosecution at the government's whim for the merest violation of a TOS agreement, I think I have a pretty solid understanding of why Lori Drew was prosecuted and I will not be. If I'm wrong, though, won't that be a hoot!

To be serious for a moment, is it really so unthinkable that "unauthorized access to a website" could be found where someone accesses a website notwithstanding a warning that says "YOU MAY NOT ACCESS THIS WEBSITE UNLESS _______." Because if that's an unauthorized access, then all we're really talking about regarding a TOS agreement is how clear the agreement is and how prominently it's displayed.
12.2.2008 4:21pm
Anderson (mail):
Please, please don't get us sidetracked on the issue of whether CongressCritters read what they enact.

As an aside, my pet proposal is that no legislation be enacted until it's been posted on the internet (no TOS required) for 10 days.

That should be enough time for blogs like TPM (and their counterparts on the Dark Side) to give them the fine-toothed combthrough and publicize the results.
12.2.2008 4:28pm
Passing By:
An interesting case study of choosing a bench trial over a jury trial occurred in the context of the Malice Green beating case, where one of the defendants chose a bench trial and was acquitted. The other two chose a jury trial and were convicted, although I suspect that they would have been convicted following a bench trial as well. Had the prosecution insisted upon a jury for the third defendant, I suspect he would have been convicted as well.

In my own experience, prosecutors are most apt to want jury trials when the judge is nuts or incompetent. There are some glorious examples from the days of the Detroit Recorders Court.... Andrea Ferrara comes to mind. Beyond that, needless to say, it's pretty much for the same reason the defense wants a jury - they think it improves their chance of winning.
12.2.2008 4:31pm
Passing By:
I think I have a pretty solid understanding of why Lori Drew was prosecuted and I will not be.

Might that be because Drew was an unsympathetic defendant, and was actually prosecuted over cyber-bullying? You're not worried about being prosecuted for a similar or greater TOS violation because you're not cyber-bullying a suicidal teenager?
12.2.2008 4:34pm
1Ler:
I know this will be obvious for most, but I think it's worth pointing out that there's no doubt Drew is liable under contract to MySpace for violations of the TOS, and that failing to read them is no excuse. But even under the tortured reading of the CFAA that makes violating TOS a crime, I'd assume there's some sort of mens rea requirement for knowing that you violate them.
12.2.2008 4:35pm
Passerby:
I thought about posting as a "Steve" to set up a test case. Then I remembered that I don't want to risk prison.

The Drew case is terrible. However, I can't imagine that it is criminal. If our government is now using criminal law to enforce EVERY TOS on the internet, it is quite scary. If our government is now using criminal law to selectively enforce TOS agreements, it may be scarier.

What is the standard here? Is it okay if I violate the "No Steve" rule on VC? Is it okay if I make a myspace account and post a photo of me and some random guy without the random guy's permission (TOS Restriction 8.14 prohibits posting content that "includes a photograph or video of another person that you have posted without that person's consent")? Do I have to cause someone to commit suicide?

If I don't know which TOS will be enforced, should I avoid the site altogether?
12.2.2008 4:35pm
themighthypuck (mail):
t Steve,

There's the rub. It isn't really about violating TOS. It is about what the law intended by unauthorized access. Reading the statute, I'd say it has nothing to do with violations of TOS. I figure that will be up to the appellate court. That said, I was pretty sure the RIAA reading of the DMCA had Verizon by the balls and I was wrong (as to the outcome).
12.2.2008 4:37pm
Passerby:
I was going to say "I wonder what would happen if the VC asked the U.S. government to prosecute Steve" but I'm pretty sure I know the answer, and I'm pretty sure the Federal Prosecutors would not get the point.
12.2.2008 4:38pm
KJJJ:
I'm the former owner of an adult web site. In 2006 FBI agents who were conducting an obscenity investigation joined my site and made several purchases using false information. This was a violation of our TOS. Under the government's theory in the Drew case, aren't these FBI agents guilty of a crime?

Furthermore, since the agents used false information to create an account(violating our TOS) and then used that account to make multiple purchases(again violating our TOS), didn't the FBI agents commit a felony under the DOJ's interpretation of the law?
12.2.2008 4:39pm
RebelRenegade:
People like this just scare me.

Not a lawyer here, how did we get to the prosecution determining whether or not the accused could waive their right to a jury trial?
12.2.2008 4:40pm
OrinKerr:
Steve,

If I understand your position, you agree that you are committing a serious felony with every comment you leave: You're just assuming that no one will decide to prosecute you for your felony crimes, and therefore the risk of prosecution is low.
12.2.2008 4:40pm
Bama 1L:
Okay, I absolutely must take Crim Pro next year.
12.2.2008 4:43pm
Anderson (mail):
how did we get to the prosecution determining whether or not the accused could waive their right to a jury trial?

The right *to* a jury trial does not necessarily imply any right to be free *from* a jury trial.
12.2.2008 4:47pm
Fub:
Steve wrote at 12.2.2008 4:21pm:
Well sure, and you're welcome to ask the authorities to prosecute. I'll even make the prosecution's case easier by admitting that I have, in fact, visited Alaska. But despite your strategic effort to suggest that we are now living in a dark era where all of us are at risk of prosecution at the government's whim for the merest violation of a TOS agreement, I think I have a pretty solid understanding of why Lori Drew was prosecuted and I will not be. If I'm wrong, though, won't that be a hoot!
You may think you have a "solid understanding". But you don't.

If the interpretation of law under which Lori Drew was prosecuted is upheld, nothing will prevent some federal prosecutor who just doesn't like you from prosecuting you for some trivial TOS violation. He doesn't have to prosecute anybody else just because he prosecutes you. He could prosecute you and decline to prosecute a million Lori Drews, or worse.

Lori Drew was prosecuted for one reason only. A federal prosecutor decided he could get by with it. So he did it.

Just be careful you don't give one any reason to dislike you. It just takes one.
12.2.2008 4:52pm
eyesay:
Anderson wrote, "my pet proposal is that no legislation be enacted until it's been posted on the internet (no TOS required) for 10 days."

Federal legislation is posted at Thomas shortly after introduction and updated as amended. Most federal legislation is not passed within 10 days of posting on Thomas.
12.2.2008 4:53pm
Houston Lawyer:
Sounds like this guy is cut out to be an Independent Counsel, if that office is ever resurrected. A prosecutor with a defendant in search of a prosecutable crime is a dangerous thing. Just ask Scooter Libbey.
12.2.2008 4:58pm
Anderson (mail):
Just ask Scooter Libbey.

You can ask, but he'll probably lie.
12.2.2008 5:00pm
themighthypuck (mail):
This is off topic but it reminds me of Godel's incompleteness theory of legal drafting. Try as you may, you can't beat a good judge.
12.2.2008 5:01pm
lesser ajax:
If the terms of service are logically incompatible with the design or operation of the online service, can there accessory liability for the service provider?
12.2.2008 5:02pm
themighthypuck (mail):
t Houston Lawyer,

Ask Conrad Black. I bet he'll talk your ear off.
12.2.2008 5:03pm
Steve:
If I understand your position, you agree that you are committing a serious felony with every comment you leave: You're just assuming that no one will decide to prosecute you for your felony crimes, and therefore the risk of prosecution is low.

No, I don't think that you actually want to deny me access to the site. I think you're just making a rhetorical point!
12.2.2008 5:06pm
Steve:
Lori Drew was prosecuted for one reason only. A federal prosecutor decided he could get by with it.

That could be it. It might have nothing to do with her conduct or the fact that a girl wound up dead. But I think it does.

Might that be because Drew was an unsympathetic defendant, and was actually prosecuted over cyber-bullying? You're not worried about being prosecuted for a similar or greater TOS violation because you're not cyber-bullying a suicidal teenager?

That's basically it. And despite Prof. Kerr's attempt to portray the jury in a bad light by using their own words, I don't think this was a particularly unusual or incompetent jury in the slightest. Right or wrong, try this case 100 times and I wager the prosecution would have a very high winning percentage. A jury of one's peers is the system we have.
12.2.2008 5:10pm
OrinKerr:
Steve,

Actually, I am being quite serious: Every visit of yours is violating our TOS -- every single visit. Your visits to this blog are unauthorized. By now I think you have racked up something like 5 or 6 felonies in the last hour: You might want to stop visiting.
12.2.2008 5:18pm
Steve:
I still do not think you are being serious.

Now, does that mean I lack the requisite mens rea?
12.2.2008 5:23pm
Fub:
Steve wrote at 12.2.2008 5:06pm:
No, I don't think that you actually want to deny me access to the site. I think you're just making a rhetorical point!
I don't speak for Orin Kerr, but I know you're wrong -- the point is not rhetorical. The point is that the law as presently interpreted permits prosecution of all "Steve" persons who post here. If the law is to be consistently applied, a noble aspiration of both jurists and attorneys, then it should be applied here as well.

If the Lori Drew prosecutor was just honestly following the law, he should have no problem honestly following the law in this case either. The government and its agents should always follow the law, or the courts won't support their actions.
12.2.2008 5:28pm
OrinKerr:
Steve,

How can you tell which of my TOS are "serious"? And what is the test for a "serious" TOS?

Incidentally, I have now banned your IP address from commenting, which I hope will achieve through code what I have been trying without success to achieve through the TOS. Given that, you should probably e-mail me directly (which I will allow) rather than try to set up a new account and comment here.
12.2.2008 5:32pm
pete (mail) (www):
Which government agency should I contact to inform them of Steve's violation? The FCC? The FBI? I am pretty sure that any person should be able to file a complaint especially for a TOS violation as obvious as this one, not just the owner of the site.

These agencies now have handy online forms for filing complaints!
12.2.2008 5:33pm
Guest102:
The "Terms of Service" is a contract. It is an agreement between two parties to engage in a legal arrangement agreeable to both parties. It is a civil agreement bound by civil law.

Drew did not access Myspace servers without authorization, nor did she exceed her access. Myspace gave her that access.

Here's how it goes:

The Myspace ToS stipulates that in exchange for access to their service, you provide truthful and accurate information. They further stipulate that if you are found to be untruthful, they will terminate your account. You read that agreement and concur. You have just entered into an agreement understanding the consequences.

Nowhere in that agreement does it state:

"I swear under penalty of perjury the information I provide is true and correct to the best of my knowledge."

Nor does it state:

"Providing false information to utilize our service constitutes unauthorized access in violation of 18 USC 1030."

If it did, and you clicked "Agree", you're an idiot and you deserve to be prosecuted.

When Drew submitted her application for service, Myspace reviewed that application, took it at face value and authorized her access. The fact that the "review" was automated does not change that. Myspace could require some validation of identity, but they don't. Drew did not access Myspace without their permission, they gave it to her. This is a critical point.

The ToS, a legally binding civil agreement, agreed upon by both parties, stipulates that if you provide inaccurate information to obtain an account, they reserve the right to terminate your account. Period.

That is not the reality of this case, however.

A ToS has been held by civil courts to be a legally binding contract. That's right, a CONTRACT. It is governed by civil law and the remedies for violation are CIVIL. The violation of a ToS is a "Breach of COntract". It is not a criminal offense. See definition below.

www.criminal-law-lawyer-source.com/terms/contract.html

"Contract

A contract is a legally binding agreement or promise that is made between two or more parties. The law recognizes that promises contained within a contract become duties.

When a contract is breached, the person who suffers is guaranteed protection under civil legal statues. When a person suffers losses because of a breach of contract, they have the legal right to seek compensation for their losses in a civil legal case.

A breach of contract is not a criminal offense, and therefore the victim can seek only monetary damages.

A contract is strongest when it takes the form of a written agreement, though a verbal agreement is also an enforceable contract."



In theory (and practice) the government cannot bring this case without Myspace filing the complaint. Myspace, the owner of the servers Drew utilized, is alleging that Drew committed a criminal action against them for violating a civil agreement that never carried the weight of criminal law. Despite Myspace having granted that access. Before escalating this incident into a criminal matter, Myspace had a duty to utilize some method, any method, for verification before granting access and they didn't do it. They shared partial responsibility for this failure. IMHO, Myspace agreed to file the complaint to cover their butt.

The greatest legal minds on the internet are debating and arguing whether failure to read the ToS can be criminally actionable when the reality of the situation is that this is a simple breach of contract issue.

A ToS is an arbitrary document, subject to the whims of its creator. Someone held accountable to no one but himself or a civil court if there is a disagreement.

Lori Drew, IMHO, is a miserable POS. That is not a crime. The law, above all else, must be fair and equitable. Even for a miserable POS or none of us are safe. The law was not fair to Drew in this case.

If I were Drew, I would file suit against Myspace for breach of contract and malicious prosecution. The agreement laid out the terms, it was agreed upon by both parties, the service was provided in accord with that agreement, Drew was found to be in violation and then Myspace exceeded their agreement by having her prosecuted without due notice and not simply terminating her account as agreed upon. She violated no applicable law and was wrongly convicted by an overzealous prosecutor in an emotionally charged show trial.

During her testimony, it is alleged she stated she knew it was against the law. Fact is, it wasn't. She then allegedly said it didn't matter because everyone does it. Fact is, it's true. Every social web site knows it and tolerates it because it's good for business. That is until somebody loses an eye, or more.

These social sites know full well that many of their customers utilize pseudonyms to create accounts. They make no effort to identify them and never prosecute them. It is a fact, evidenced by the debate raging about this case, that using a pseudonym is common practice on the internet. We all know it and so do the social sites. Fact is, their business would crash if they started requiring proof of ID. They are therefore complicit in allowing access to their servers by persons using pseudonyms.

A criminal law must be created by legislatures or governing bodies. It is done by elected officials through debate, research and is built on the foundation of the Constitution. It is not supposed to be created in haste, by lawyers, in a lynch mob atmosphere.

Then again, maybe I'm just an old idealist with unrealistic expectations of today's society.
12.2.2008 5:39pm
OrinKerr:
OK, Steve sent me a nice e-mail "conceding" the merits, so I am happy to unban him. I also withdraw my TOS amendment directed to people who comment with the name "Steve", with the caveat that of course I reserve the right to re-amend the TOS again. ;-)
12.2.2008 5:49pm
einhverfr (mail) (www):
OrinKerr asked Steve:

Given that Congress hasn't passed a law making it a crime to violate TOS, your comment is interesting but hard to understand in the context of this thread. I'm curious, though: What's your view of the constitutionality of such hypothetical legislation in light of the void for vagueness and overbreadth doctrines?


I think it would be constitutional provided that adequate notice was provided to the offending party that the person was no longer welcome, similar to trespassing in many cases. The same rationale applies to requiring written notice prior further acts for which one might be charged with trespassing. Of course none of this applies to Lori Drew who most certainly did not receive such notice.

I would think that if I walk into your store, am disruptive, and you provide me with written notice that if you come back you will prosecute me for trespassing, then such a prosecution might be constitutional. However if no such notice is provided for such a public establishment, then I think it would be overly vague.
12.2.2008 5:54pm
1Ler:
Good for Steve being a good sport... not many around here. Purely out of curiosity (and making me somewhat paranoid), how do you access the TOS around here?
12.2.2008 5:55pm
einhverfr (mail) (www):
I would also note that my answer to Prof. Kerr's question suggests that prosecution of Steve for continue posts to the blog would raise fewer Constitutional issues than the trial of Lori.....
12.2.2008 5:56pm
Steve:
I post again solely to acknowledge that I was completely owned by Orin on this one.
12.2.2008 5:56pm
David Schwartz (mail):
To be serious for a moment, is it really so unthinkable that "unauthorized access to a website" could be found where someone accesses a website notwithstanding a warning that says "YOU MAY NOT ACCESS THIS WEBSITE UNLESS _______." Because if that's an unauthorized access, then all we're really talking about regarding a TOS agreement is how clear the agreement is and how prominently it's displayed.
Yes, it's completely unthinkable. It's absurd, bizarre, ridiculous, and any other words you can think of. It's as unthinkable as arguing that my daughter is guilty of criminal joyriding if she keeps my car out for an hour longer than agreed. That is why until it was the only way to satisfy the public's blood lust, anybody who mentioned it was held up for public ridicule.
12.2.2008 6:01pm
GuestTroll1234 (mail):

Stick to the broader issue (I think Eugene was quoted as addressing it): violating terms of service may be a breach of contract, but its not a crime.


Isn't it possible to breach a contract and commit a crime in the process? If I hire a boxing instructor to spar with, and there are defined terms of what is and is not acceptable sparring actions within that contract, if I bring a pair of brass knuckles and beat him to an inch of his life am I not also in breach and have commited criminal assault and battery?

Lori was presented terms that she agreed to without viewing. Whether she knew what she was agreeing to is an irrelevant defense IMHO, she agreed to them and is therefore bound. She then proceeded to grossly overstep those terms by commiting fraud (representing herself as a young boy) with the intent to "play" with a 13 year old girl (and any 47-year old woman who engages in this activity has maliscious intent from the start as far as I'm concerned. Anyone would be hard pressed to argue to me that her intentions were benevelent or neutral at best.)
12.2.2008 6:07pm
KJJJ:
What is the mens rea for violating the TOS? Evidently Drew never even read the TOS but the governments position is that it doesn't matter. This imposes strict liability on all Internet users.

What happens if the TOS aren't published online or they are kept secret? Is it still a crime to violate TOS in these circumstances?
12.2.2008 6:10pm
einhverfr (mail) (www):
KJJJ: Here is a great example.

Match.com's terms of service make it a violation to visit their site if you are married. The terms of service are hosted on their site. Therefore if you read them and you are married you have accessed their services in excess of the authorization they provided.

Note you *can* ask for a non-electronic copy, but where is that information to be found? You guessed it, on their site.
12.2.2008 6:29pm
einhverfr (mail) (www):
GuestTroll1234:

Yes, you can break a contract and violate a law in the process. If I loan you my manuscript under the promise that you will not pass it on, and you publish it, you have broken that contract and violated copyright law (note that in this case, I did not hand any copyright license to you).

However, in this case, the prosecution's theory makes better than half of our population here in the US guilty of misdemeanors at least, including probably pretty much everyone under the age of 18. This makes the statute unconstitutionally vague as applied, even absent the clear fact that Congress did not intend it to be applied in this way. Furthermore, there are plenty of cases that even reading the terms of service violates them (cases where certain classes of people are disqualified from using a site and the terms of service are hosted on the same site).
12.2.2008 6:34pm
pete (mail) (www):

Isn't it possible to breach a contract and commit a crime in the process? If I hire a boxing instructor to spar with, and there are defined terms of what is and is not acceptable sparring actions within that contract, if I bring a pair of brass knuckles and beat him to an inch of his life am I not also in breach and have commited criminal assault and battery?


Sure you both commit a crime and break a contract at the same time, but you should only be criminally prosecuted for assault and not for breach of contract. You should be sued in civil court for breach of contract.

If the prosecuters thought Drew had committed a real crime she should have been prosecuted for that and sued by Myspace for breach of contract or sued by the girls' family for other torts.
12.2.2008 6:35pm
David Schwartz (mail):
Lori was presented terms that she agreed to without viewing. Whether she knew what she was agreeing to is an irrelevant defense IMHO, she agreed to them and is therefore bound. She then proceeded to grossly overstep those terms by commiting fraud (representing herself as a young boy) with the intent to "play" with a 13 year old girl (and any 47-year old woman who engages in this activity has maliscious intent from the start as far as I'm concerned. Anyone would be hard pressed to argue to me that her intentions were benevelent or neutral at best.)
You've shown nothing more than that she violated the contract. To make some kind of an argument for criminal liability, you'd have to show that she violated it in a way that creates criminal liability.

Your boxing example is spot on. Assault is a crime. A contract can make something not assault, but it can't make something new into assault. So you would be charged with the crime of assault and wouldn't have the defense of consent through the contract.

So the question is, what's the crime here that she didn't have consent for because she violated the ToS? And the answer is unauthorized access to a computer. So again, you have to argue that the ToS limits the authorized access, which is precisely the argument you brought this up to avoid.

This brings you full circle to the original question -- is violating the ToS unauthorized access analogous to defeating access control measures through technical means? And the sane answer is no, it's not. Using your authorized access for a purpose the person who gave it to you would rather you not use it is not unauthorized access.

My daughter is not joyriding if she lies to me about where she's going when she asks to borrow the car. She's just lying. She's joyriding if she doesn't have permission to use the car. She's violating the terms of the permission if she goes where she said she wouldn't. Big difference.
12.2.2008 7:11pm
seadrive:
Someone here is claiming that they read the TOS for every update of some obscure flash component employed by a web site to display video or whatever? Really? Hard to believe.

Do you read the terms of a lease? Probably. Do you know which terms are not legally enforceable? Probably not.
12.2.2008 7:18pm
Roger Schlafly (www):
Did a MySpace official testify? Was he asked to explain how they enforce the TOS? Did he say that they call the feds whenever someone makes a mean comment online? It seems to me that these matters could have been easily clarified at trial.
12.2.2008 7:31pm
pintler:

Please, please don't get us sidetracked on the issue of whether CongressCritters read what they enact. I'd like Congress to pass a law which makes it a violation of Title 18 for a Congressperson to vote on a bill without having read the bill and all Committee Reports.


A few months ago, google was under pressure to make their privacy policy more visible. One of the founders said 'OK, you can put a 'Privacy' link on the home page, but you have to find another word to delete'.

I sometimes think we should have the same policy with respect to laws - want to pass a new one, find an old one to repeal. Then maybe legislators would think harder about what they are doing.

[impossible, I know - how do you define 'a law' - but if
we could...]
12.2.2008 7:32pm
themighthypuck (mail):
Some bored person should probably look up some spam cases to see what sort of law there is floating around.
12.2.2008 7:40pm
NickM (mail) (www):
This is the same U.S. Attorney's Office that is seeking to confiscate all items bearing the Mongols trademarks, now that it has seized the marks.

It might be very dangerous to get between Thomas O'Brien and a TV camera.

Nick
12.2.2008 7:41pm
David Warner:
"I always read the terms of service.... If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable."

Evidently the only choices for Ms. Kunascz were crazy and lazy and she took the former.
12.2.2008 7:58pm
Fub:
GuestTroll1234 wrote at 12.2.2008 6:07pm:
Isn't it possible to breach a contract and commit a crime in the process? If I hire a boxing instructor to spar with, and there are defined terms of what is and is not acceptable sparring actions within that contract, if I bring a pair of brass knuckles and beat him to an inch of his life am I not also in breach and have commited criminal assault and battery?
It is true that a breech of some contract can also be a crime. But that is true only if the act constituting the breech is unambiguously described and criminally proscribed in statute or case law, regardless of whether some particular contract between parties prohibits it.

What distinguishes this case is that the gravamen of the criminal offense is any breech of the contract between two parties, where one party is operating a "protected computer".

As Prof. Kerr has pointed out numerous times, Lori Drew committed no statutorily prohibited or judicially accepted criminal offense, except the newly judicially discovered crime: breech of the "protected computer" operator's contract with her.
12.2.2008 8:43pm
Paul Milligan (mail):
" If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable"

Geez. I wonder if she's ever tried to read and UNDERSTAND a Microsoft EULA ??? Or one from Oracle, etc ?

The lady if full of crap, obviously. Best of luck on the appeal, Orin. I suspect you will win hands-down. IMO the decision is utterly unsupported by law.
12.2.2008 10:33pm
GuestTroll1234 (mail):

is violating the ToS unauthorized access analogous to defeating access control measures through technical means?


I don't believe the law says you need to gain unauthorized access through technical means, you simply need to gain unauthorized access. "Social Engineering" is one of the most frequently used means by "hackers" to gain unauthorized access to systems.

Isn't entering into a contract and purposely misrepresenting yourself for malicious intents a crime? Doesn't a 47 year old woman posing as a 13 year old boy to purposely mislead and draw information out of a young girl constitute a malicious intent? Lori's access to the system by purposely misrepresenting herself with the intent to act maliciously towards Megan is fraud.

The crime isn't in the breach of the contract, the crime is in the means by which she breached it.

I also take issue with the argument that if this is upheld it will make most Internet users criminals, therefore the law should be invalidated. I love this argument, because nobody ever drives 55 on the highway, therefore the speeding laws should also be invalidated. I'll pass this one by the judge as I try to get out of a ticket next week to see how well it holds up.
12.2.2008 11:17pm
Guest102:
"Social Engineering" is one of the most frequently used means by "hackers" to gain unauthorized access to systems.


I'd be hard pressed to classify this as social engineering. She didn't interact with a person and she didn't trick anyone into gaining access. Any safeguards to prevent her "method" of access were absent. They opened the barn door and escorted her in.

Lori's access to the system by purposely misrepresenting herself with the intent to act maliciously towards Megan is fraud.

Fraud implies there is some financial or tangible loss. Your comment also goes to the core of what's wrong with this decision. The jury had the ability to define this access in those terms. They refused to apply that standard. Instead, they decided that simply using a pseudonym to create an account, absent any criminal or malicious intent, is a violation of the law all by itself.

nobody ever drives 55 on the highway, therefore the speeding laws should also be invalidated.


I was driving when the speed limit was dropped to 55 in the mid-seventies. I didn't wake up one morning, jump on the thruway, crank it up to 70, get pulled over and receive a ticket for speeding. We received fair notice the speed limit was coming down and had the opportunity to comply.
12.3.2008 12:20am
unwelcome guest:
I tend to agree with the majority here that prosecuting based on a TOS violation is a very dangerous precedent. Given that, I wish half the brainpower were employed in figuring out how one actually should prosecute someone like Lori Drew. What she did is not that different than what sexual predators do in impersonating others on the internet, with a malicious intent to harm a minor. How do they prosecute sexual predators before they make physical contact?

I am not a criminal lawyer, but I am a concerned parent.
12.3.2008 12:54am
einhverfr (mail) (www):
Guest102:

I think in some rare cases, it might be possible to argue that a TOS violation might rise to the level of a hacking attempt.

In my example, I recognize that no reputable software is built this way any more, but it was once widespread and still could be the case where mistakes are made in the engineering process.

Suppose you have a piece of software with an documented but and back door. Suppose this is, say, an email message transport agent (email server) and the backdoor allows someone who enters a specific control sequence to relay messages through the mail server. Suppose someone else starts taking advantage of this back door to relay a large volume of spam through your server. You get the person's name and address, and send them a written notice that they need to stop and they continue to do this.

Now, this isn't a mere terms of service violation, it is continuing to access your servers well above what is generally acceptable and what was authorized use. Furthermore, it is fundamentally damaging to you, and the perpetrator has continued the behavior after receiving a written notice to stop. I think one could legitimately argue that this is use in excess of authorization.

On the other hand, there are cases where circumventing technical means is authorized. One of my competitors was distributing software I knew to be insecure. I approached them and told them one of the vulnerabilities and the owner of the business responded (in writing) challenging me to deliver a specific file off their servers containing encrypted passwords of demo users. So in this case, my breaking through the authorization system in their servers was in fact authorized and I didn't do anything beyond what he challenged me to do....
12.3.2008 1:51am
guest:
Question from a 2L who should know better (Con law was not my best class).

If for some reason the gvmt did want to prosecute based on a violation of the new TOS for VC, wouldn't there be a constitutionality problem because the TOS is discriminatory? Not to mention arbitrary and capricious, and in Steve's case a Bill of Attainder? Discriminate all you want in private (though the NJ Eharmony ruling seems to cloud that a bit) but asking the government to enforce a discriminatory contract (which the TOS would be) isn't allowed under Shelly.

Or maybe not?
12.3.2008 2:06am
one of many:
guest, well if the VC (and its servers) are considered public accommodations you might have an argument. never seen that argument before though, usually considered private associations which can discriminate arbitrarily and capriciously. Bill of Attainder etc apply to government actions, not actions by private persons (although under public accommodation theory there is an argument to be made). it would be interesting to see such an argument, that the VC (or other web site) is a public accommodation and must provide non-discriminatory access.
12.3.2008 2:26am
Pendulum (mail):
>I am not a criminal lawyer, but I am a concerned parent.

Then devote your resources to looking out for Uncle Joe, Teacher Mary, Cousin Billy, and Pastor Tim. They're infinitely more likely to actually abuse a child than some anonymous pervert on the internet.

In addition, treat your children like sentient beings and teach them how to make sensible, rational choices about their lives. Kids like that don't make decisions which lead to them meeting up with internet sex offenders. When well-adjusted kids get come-ons from adults over the internet, their reactions are "eww, gross, close window, end of conversation".

Your kids are far, far more likely to be harmed in some way by voluntarily posting private stuff to the internet without having thought through potential consequences then they are by some lurking "internet predator".
12.3.2008 3:13am
NickM (mail) (www):
Many well-known fictional characters have MySpace pages - often lots of pages for a single character. I wonder whether Thomas O'Brien would claim that each of these pages was a federal crime to create unless advance permission had been obtained from MySpace?

I wonder how many geeks who made Tyler Durden pages could be put in the same prison before the guards joined Fight Club?

Nick
12.3.2008 6:45am
Philistine (mail):
Orin:

KJJJ's comment raised a question in my mind. I've always understood courts routinely shoot down the argument that websites putting up as a TOS that those visiting aren't police officers or government agents, etc. means when the FBI accesses the website, it is a violation of the 4th Amendment.

Does this case, if upheld, reinvigorate such a defense? If the Government is actually violating a criminal statute by accessing something in violation of the TOS, would it at least now require a warrant?
12.3.2008 10:18am
Philistine (mail):
Orin:

KJJJ's comment raised a question in my mind. I've always understood courts routinely shoot down the argument that websites putting up as a TOS that those visiting aren't police officers or government agents, etc. means when the FBI accesses the website, it is a violation of the 4th Amendment.

Does this case, if upheld, reinvigorate such a defense? If the Government is actually violating a criminal statute by accessing something in violation of the TOS, would it at least now require a warrant?
12.3.2008 10:18am
Philistine (mail):
Orin:

KJJJ's comment raised a question in my mind. I've always understood courts routinely shoot down the argument that websites putting up as a TOS that those visiting aren't police officers or government agents, etc. means when the FBI accesses the website, it is a violation of the 4th Amendment.

Does this case, if upheld, reinvigorate such a defense? If the Government is actually violating a criminal statute by accessing something in violation of the TOS, would it at least now require a warrant?
12.3.2008 10:19am
Sk (mail):
How about discussing the issue from the opposite side (say, from 'Steve's' side). Aren't there cases in which violating Terms of Service should be a crime?

Examples: accessing a webpage containing your personal medical history (by a doctor, by a non-doctor, by insurance salesmen, etc).
Accessing webpages that contain your investment information (say, your investment data for your personal IRA).
Accessing webpages containing national security information (secret or top secret military webpages, Department of State data repositories, weapons communications links-say between headquarters in Colorado Springs and launch sites in North Dakota. And so on).

Could a law be written that would protect the above webpages/information, but not impact accessing MySpace or Volokh Conspiracy?

And if a law couldn't be written distinguishing the two, then isn't the difference really the prosecutor's whim (i.e. a law will be written making it a crime to improperly access information: that law may very well apply to Defense information as well as My Space information, but we all know it will only be used to prosecute breaches of defense security-which is 'Steve's' entire point)?

Sk
12.3.2008 10:19am
Philistine (mail):
Wow.

I obviously really wanted an answer....
12.3.2008 10:20am
Lex:
Did no one ask the jurors whether they typically read Terms of Service during voir dire? I appreciate that you think this particular juror is quirky and unreasonable, and I even agree, but that's what peremptory strikes are for, right? I mean, lots of people have personality quirks you can't anticipate (say, an adult impersonating a teenager on the internet to harass a vulnerable girl and drive her to suicide), but anal-retentive people who read things before they sign them do not strike me as unimaginable.
12.3.2008 10:38am
Guest102:
Could a law be written that would protect the above webpages/information, but not impact accessing MySpace or Volokh Conspiracy?


Simple. Clearly stipulate in the law the requirement that any violation of a ToS, a contract, is a civil matter between the two parties unless their is criminal intent to cause fraud or harm. The exact language can be resolved by the legalese gurus.

As to police (or other restricted parties) access, they are allowed to go anywhere the public is allowed access. The most recent cite I've seen on this issue was addressed in Snow v. DirecTV where the 11th COA stated that any site that allows public access cannot stipulate arbitrary standards for that access. To meet that requirement the site must be closed to the public and access controls in place to ensure compliance.
12.3.2008 10:40am
pete (mail) (www):

Given that, I wish half the brainpower were employed in figuring out how one actually should prosecute someone like Lori Drew. What she did is not that different than what sexual predators do in impersonating others on the internet, with a malicious intent to harm a minor.


But if I remember those cases correctly they do not arrest the person until they show up somewhere to meet the supposed child. The crime is not pretending to be someone your not on the internet, the crime is showing up with the intent of having sex with a minor.
12.3.2008 10:42am
pete (mail) (www):
And I have no problem with prosecuting Drew for a crime like harrassment if the prosecuters thought they could make the case. The reason no one is spending the brainpower to come up with a way to prosecute her is that they already tried and the TOS violation was the best anyone could come up with.
12.3.2008 10:51am
Guest102:
But if I remember those cases correctly they do not arrest the person until they show up somewhere to meet the supposed child. The crime is not pretending to be someone your not on the internet, the crime is showing up with the intent of having sex with a minor.


Interesting. I wonder how many child molesters will seek new trials, or have their convictions overturned under this new standard. I wonder how many sexual predators were caught with accounts created with pseudonyms by police trying to protect their identity. How many private citizens do this thinking they are peforming a public service. Wasn't there a TV news show that did this and then ambush the predator?

The law of unintended consquences. I don't think this was the intent of Congress.
12.3.2008 10:53am
David M. Nieporent (www):
Isn't entering into a contract and purposely misrepresenting yourself for malicious intents a crime?
No.

This has been yet another installment of simple answers to stupid questions.
Doesn't a 47 year old woman posing as a 13 year old boy to purposely mislead and draw information out of a young girl constitute a malicious intent? Lori's access to the system by purposely misrepresenting herself with the intent to act maliciously towards Megan is fraud.
Who was defrauded? Out of what?


What she did is not that different than what sexual predators do in impersonating others on the internet, with a malicious intent to harm a minor. How do they prosecute sexual predators before they make physical contact?
The same way they prosecute unicorns and other fictitious creatures. In any case, if there really were "sexual predators" on the internet who were caught before they made contact, they would prosecute them for attempt.


If for some reason the gvmt did want to prosecute based on a violation of the new TOS for VC, wouldn't there be a constitutionality problem because the TOS is discriminatory? Not to mention arbitrary and capricious, and in Steve's case a Bill of Attainder? Discriminate all you want in private (though the NJ Eharmony ruling seems to cloud that a bit) but asking the government to enforce a discriminatory contract (which the TOS would be) isn't allowed under Shelly.

Or maybe not?
Not. If I say, "Guest, you may not enter my house," and you do, that's trespassing. If you refuse to leave, I call the police, and you're arrested. Even though my order was aimed specifically at you. No "Bill of Attainder." (Which is actually a law that declares someone guilty, not a law that singles out a specific person; that would merely be an equal protection issue with a class of one.)
12.3.2008 10:54am
Dan Weber (www):
MySpace knows damn well that a huge fraction of their users are violating the ToS by lying about their age. How does this affect the enforceability or validity of their ToS?
12.3.2008 11:02am
Nick42 (mail):
Guest102:

On the issue of Snow v. DirecTV and disallowing police officers access to a website, I don't see where that decision mentions police at all.

Looking at the decision on EFF's site ( http://www.eff.org/cases/snow-v-directv ), it seems to be simply saying that a TOS disallowing DirectTV from accessing a website with no other controls does not fulfill the requirements to be prosecuted under the Stored Communications Act ( similar to, but not quite the same as the CFAA ).

That case actually comes right out and states that the legal theory in the Drew case is pretty awful.

Did you mean to refer to a difference case?

I'm quite interested in finding out if there is other case law which would stop a malicious actor from including a TOS which prevents LEO / security personal from accessing a website hosting illegal content.
12.3.2008 11:29am
Aultimer:

Steve:
I post again solely to acknowledge that I was completely owned by Orin on this one.

I think anyone who has been a "innocent" defendant in either a criminal or civil context knows how serious those actual felonies still hanging over Steve's head really are - it's very uncomfortable to be a litigant when you know you'll win, but untenable when your only chance is jury nullification or overturning existing law.

It's part of the price of living in a free society, but it surely sucks.
12.3.2008 11:43am
einhverfr (mail) (www):
Aultimer wrote:

I think anyone who has been a "innocent" defendant in either a criminal or civil context knows how serious those actual felonies still hanging over Steve's head really are - it's very uncomfortable to be a litigant when you know you'll win, but untenable when your only chance is jury nullification or overturning existing law.


Which is why I think that poetic justice (and clarity in the rule of law) in this case demands that Lori's conviction gets overturned in the appeals process. I think it would be fundamentally damaging for the judge to acquit her (rather than dismissing the charges on the basis that the accusation did not amount to a crime), and besides, for her part in egging on her daughter towards schemes of revenge, she can pay back her moral (rather than legal) debt to society by fighting this for however long it takes and obtaining a positive precedent for the betterment of us all.
12.3.2008 2:09pm
Guest102:
Did you mean to refer to a difference case?

No. The concept here is that courts have consistently said that public is public. Law enforcement are held to the same standard and restrictions without court orders when it comes to publicly available information. If the public can view it, so can law enforcement.

As I understand Snow v. DirecTV, they contracted a law firm to gather information from a website Snow was using to support people pirating satellite TV. His banner, the ToS, expressly forbid DirecTV and anyone associated or acting on their behalf from entering the site. The law firm clicked "Agree" and gathered information from the site.

Snow sued stating that they accessed information stored on his computer in violation of the SCA. The 11th COA disagreed stating that public is public. Snow could have restricted his site to people known to him, by name, and placed access controls to enforce that, but he didn't. His failure to do so, and the public nature of the site allowed DirecTV and associates to view the site.
That case actually comes right out and states that the legal theory in the Drew case is pretty awful.

Agreed. The issue here is authorized access, eerily similar to the Drew case. She didn't break into the site. She used the registration process for a publicly accessible site and they granted the access without verification.

The ToS is a rule of behavior, not a door and lock. If you routinely allow a behavior, that behavior becomes the accepted norm. If you decide to suddenly enforce a previously unenforced behavior in a ToS, I don't think anyone would disagree you can do that, but should you be allowed to prosecute that behavior before issuing fair notice or a cease and desist?
12.3.2008 2:29pm
Dan Weber (www):
If you decide to suddenly enforce a previously unenforced behavior in a ToS, I don't think anyone would disagree you can do that, but should you be allowed to prosecute that behavior before issuing fair notice or a cease and desist?
I think I raised that above, but the sick thing is that MySpace wasn't a party to this lawsuit, AFAIK. Google could make their ToS say "no one may use this website," and the government could then prosecute anyone who uses Google, regardless of how or why Google added that.
12.3.2008 3:23pm
Guest102:
AFAIK, Myspace was the complainant in this action. I do not believe that the government can prosecute an unathorized access without the consent of the aggrieved party. I could be wrong.

If so, is Myspace using this prosecution to deflect potential civil action from Meier's mother or others? If Myspace is found to be negligent in enforcing the ToS access agreement, can Myspace be a co-defendant in a civil suit? Can the mother claim that, after she knowingly violated the access provisions of the ToS herself, not once, but twice according to media reports?

I find it strange that Myspace, after their public proclamations of wanting to act in the best interests of the children after this incident, lowered the age of access from 14 to 13. Coincidentally, this was Meier's age when her mother created the account. Why not 12? Why not increase it to 17 or 18 to discourage impressionable teens from venturing into a world they're not yet ready for?

In Snow v. DirecTV, the 11th COA said this:
If by simply clicking a hypertext link, after ignoring an express warning, on an otherwise publicly accessible webpage, one is liable under the SCA, then the floodgates of litigation would open and the merely curious would be prosecuted. We find no intent by Congress to so permit.

Looks to me that U.S. v. Drew does just that.
12.3.2008 4:27pm
Dan Weber (www):
I don't see MySpace mentioned as anything but a third-party in the indictment (PDF). (But there might be background info I'm missing.)
12.3.2008 6:07pm
Guest102:
I don't see MySpace mentioned as anything but a third-party in the indictment (PDF). (But there might be background info I'm missing.)


I was a police officer some time ago. (Which might explain my rather dubious knowledge of criminal law and precedent) I have presented cases to grand juries, but I don't recall the indictments containing any language stating the victim wished to prosecute. The criminal case is brought by the government on behalf of the victim. The investigation report states that the victim is preferring the charges and the supporting statements are filed as an attachment with the prosecutor. The grand jury sees only the indictment containing the accusations and listing the elements of the offense.

It saddens me to see the direction law enforcement is going, to a hyper-legal society where getting through the day without unintentionally violating some kind of law is getting more difficult everyday. Where honest mistakes that in years past would get you a stern lecture are now criminalized. To a zero tolerance society. I see this as the road to totalitarionism and it is a slippery slope we might not be able to climb back up. This wild frontier we know as the internet seems to be exponentially accelerating the slide as we grapple with issues like the Drew case. Everyone is shocked by bad behavior, times a million, and it get worldwide attention in minutes. People scream for justice, but justice is an elusive concept. In the rush to justice for Meiers, millions of others are now in jeopardy of losing their liberty at the whim of a prosecutor. Common sense is dead, and justice with it. I have but a few years left on this Earth, (God willing) but I fear for my children and descendants.
12.3.2008 7:26pm
Greg Q (mail) (www):
You know, Orin, you're right. What really should have happened is that the father of the girl should have walked over a shot Lori Drew in the head, and the State should have refused to prosecute on the grounds that "she had it coming" (failing that, the jury should have voted not to convict him for the same reason).

You don't like that option? Then you want the government to throw her in jail. You can have private "justice", or public "justice". Lori Drew murdered that girl, she deserves to be punished for that. Yes, this prosecution is a half-assed and lame effort to get her. But she needs to be "got".

If you can't understand that, then I pity you.
12.3.2008 8:32pm
Two-Fisted Law Student (mail):
@ Greg Q.

How dare you believe in the rule of law, Orin.

I pity you.
12.4.2008 11:00am
einhverfr (mail) (www):
Greg Q:

I suggest you consider emigrating to a country like Iran which places more emphasis on the ideals of justice held by the government than it does the laws which are supposed to govern all.

As Plato convincingly showed in Republic, Liberty and Justice are not always compatible, and perfect justice in all cases means no liberty.
12.4.2008 11:37am
tsotha:
You don't like that option? Then you want the government to throw her in jail. You can have private "justice", or public "justice". Lori Drew murdered that girl, she deserves to be punished for that. Yes, this prosecution is a half-assed and lame effort to get her. But she needs to be "got".

No. Lori Drew didn't "murder" that girl. What she did was wrong, but not everything that's wrong is, or should be, illegal. There's a bigger principle at stake here than whether or not one person gets "justice" - prosecutors already have too much latitude, and allowing this to stand makes things worse for everyone who comes in contact with the wrong end of the law.
12.4.2008 1:56pm
einhverfr (mail) (www):
Dan Weber:

Google could make their ToS say "no one may use this website," and the government could then prosecute anyone who uses Google, regardless of how or why Google added that.


Google's Terms of Service already prevent anyone under the age of majority for contract purposes from using their services (including the web search, BTW)....
12.4.2008 8:02pm
Greg Q (mail) (www):
Two-Fisted Law Student, einhverfr, tsotha,

Were I the father of the daughter, I would shot Lori Drew dead. If he does that, and is prosecuted, then were I on the jury, I would vote not guilty on all charges (and I would cheerfully lie to get on that jury).

Do you want to live in a country that practices personal vengeance and mob justice? No? Neither do I. But when the government fails to offer justice, citizens will get it on their own. And they should do so.

When I see someone bitching about how the prosecutors went after Lori Drew, I see someone who is either an idiot, or who wants to see mob justice come to the US. Which are you?

You value justice, but don't like the prosecution's tactics in the case? Fine. Tell us how they can nail her legitimately. Instead of wasting your mind coming up with reason why she has to be set free, come up with ways to nail her. Show that you actually understand the concept of justice.

Because it appears this is all just mind games to you. And that's pathetic.
12.4.2008 8:39pm
lucia (mail) (www):
GregQ--
I don't believe in mob justices, and I don't think some Dad should be permitted to take justice into his own hands and shoot Lori Drew dead. So, if I were on the jury with you, and you insited on trying to acquit an an obviously guilty father who committed an revenge murder, we'd have a hung jury.

I guess that's why we have more than 1 person on a jury.

We may not be able to nail Lory Drew legit. That sometimes happens.
12.4.2008 11:31pm
einhverfr (mail) (www):
Greg Q:

Do you want to live in a country that practices personal vengeance and mob justice? No? Neither do I. But when the government fails to offer justice, citizens will get it on their own. And they should do so.


I think you are suggesting we choose between legally sanctioned mob justice and mob justice without legal sanctions. "Convict Lori of something under a stretch of an interpretation of an old law because she is BAD" is nothing more than mob justice. Furthermore convicting them because they are unpopular for one reason or another is nothing more than mob justice. Note that the jury didn't even convict Lori for anything involving intentional harm to Megan...

The other fundamental problem is one that I think unites Professor Kerr, myself, and many others here, and that is the fact that this sets a precedent as to what this law means, and what it takes to violate the law. This precedent makes things I have done subject to prosecution, and it probably makes things you have done subject to prosecution as well. The idea that we won't be prosecuted because we haven't done anything wrong (even if we have committed crimes) is slim comfort against the day the government may wish to prosecute someone for simply getting in their way.

Our defence against tyrany is based on a rule of law I would not so easily throw away. If you disagree with me on that, I suggest you take a very close look at the way Iran does things.
12.7.2008 2:45pm
Eric A.:
Valentina Kunasz should never be allowed to serve on a jury again. Her common sense is nonexistent. I can think of two well-known TOS contracts that contain unreasonable clauses that, if challenged in court, would (or should) be ruled unconstitutional:

1. Match.com prohibits married people from using its site. Combine this with the result of the Drew case:

"The jury agreed that it is a federal crime to violate a website's terms of service"

and the result is a new federal "adultery" law, not enacted by the government, and expanding the definition of adultery to include searching for romantic partners.

2. Google prohibits minors from using any of its services (even the search engine)! Now, any parent who's fed up with their kid and wants to get rid of him/her can call the police if they catch the kid doing a Google search.

And consider the following, even worse scenario: The federal statute used to prosecute Lori Drew defines "protected computer" as any computer used for interstate AND FOREIGN commerce. So web sites located outside the US are protected computers. It is now a federal crime to violate the TOS of a web site located ANYWHERE IN THE WORLD! So it's likely I would be committing a crime if I posted comments on the Tiananmen Square massacre to a Web forum hosted in China (where online discussion of this topic is illegal). Now, any website operator in the world has the power to make US federal criminal law.

Clearly, no one on the jury (especially Kunasz) understands the ramifications of their decision. How could every single juror fail to comprehend that convicting Lori Drew would automatically empower a multitude of private entities to essentially enact their own laws, backed by the force of federal law? Most people know that only governments, not private parties, have the power to enact laws.

This case demonstrates the fallibility of our jury trial system: when emotions (especially anger) figure prominently in a case, jurors will decide the case based on their feelings. Lori Drew had to be punished, never mind the collateral damage this decision would cause for nearly all Internet users. I am confident that higher courts (whose judges are, by and large, more insulated from emotional public opinion than juries and trial judges) will overturn the verdict, but it's still scary that 12 people could arrive at a conclusion (that it is a crime to violate a website's terms of service) that I thought would be impossible.
12.10.2008 5:30pm

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