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Since writing about the weird application of the Computer Fraud and Abuse Act in the Lori Drew case, I’ve gotten more fascinated, and bewildered, by all those terms you have to click “I agree” to in order to use web sites. You’ll recall that Drew was convicted of “unauthorized access” to a computer because she had made up a bogus MySpace identity, in contradiction to the MySpace Terms and Conditions, which stipulate:

By using the MySpace Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 14 years of age or older; and (d) your use of the MySpace Services does not violate any applicable law or regulation.

So apparently, under (b), you’re in violation of these terms if you say that Bobby is your boyfriend, and he dumps you but you don’t update your MySpace page to reflect that. (What else could it mean?)

The more you look at these “agreements” — which virtually no one ever reads — the stranger they look. Here is another clause from MySpace’s:

MySpace.com may modify this Agreement from time to time and such modification shall be effective upon posting by MySpace.com on the MySpace Website. You agree to be bound to any changes to this Agreement when you use the MySpace Services after any such modification is posted.

Now how weird is that? Is there any other circumstance under which you would sign a contract, one clause of which stated that the other party could change the entire contract at any time, without notifying you personally, just posting the revised contract in a public place, and that by signing the present contract you were agreeing to be bound by the terms of any such revised contract?

Google’s is also very odd:

2.1 In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.

2.2 You can accept the Terms by:

(A) clicking to accept or agree to the Terms, where this option is made available to you by Google in the user interface for any Service; or

(B) by actually using the Services. In this case, you understand and agree that Google will treat your use of the Services as acceptance of the Terms from that point onwards.

2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Google, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.

So in Massachusetts, where you have to be 18 (I think) to sign a contract, you can’t use the Google search engine, because by doing so you have implicitly agreed to Google’s TOS. And no child should ever have a Gmail account. You’d think they’d mention that a bit more visibly if they actually cared, wouldn’t you?

Such terms are stated, apparently, to give these services legal leeway to dump a tiny number of bad actors, not necessarily for their actual bad acting but for something. “Selective prosecution” is fine in civil matters, I suppose. But there is something strange about all this.

Lawyers, left to their own devices, will protect their clients to the max. They will want to get you if you venture somewhere near this tiny bulls-eye, so they will draw a legal circle a thousand miles in every direction around that spot. If you look like you are thinking about the bulls-eye in Harvard Square, they can throw you off the reservation because you wandered near Toledo.

What’s odd is that there doesn’t seem to be any counter-pressure. The TOS are rarely enforced, so there are not a lot of unhappy customers. When they are enforced, somebody loses access to a web site, not a big deal. There isn’t a lot of competition, so there is not much incentive for people to abandon one site because of its expansive TOS and sign up for another whose TOS are simpler.

So the situation seems unstable. What’s to prevent TOS from becoming ever more expansive, as lawyers get more clever and the sites’ gain experience about lawsuits from which they need to protect themselves?

I can’t imagine that even the Lori Drew decision, where adherence to TOS weirdly became a matter of criminal law, will make anyone start reading or paying attention to those documents.

Alex Beam has a good piece today on the complexities of Google Books. This is Google’s program of scanning in books, in furtherance of its general corporate mission of organizing all the world’s information and making it universally accessible. And, of course, to draw more eyeballs to their advertising while they are at it. Nothing wrong with that, and the Books site is, for the time being at least, laudably clean.

Now there was a certain disagreement between Google and certain authors and publishers about whether what Google was doing was legit copyright-wise, and Google recently settled up. That’s an important story. But Beam notes that libraries are having a different worry — they worry about Google becoming the sole point of access to digitized books. Some alternative venues exist and are growing. Certainly we should hope they succeed, simply because corporate monopolies are dangerous.

Beam praises Harvard’s library for dropping out of the deal, because the agreement between Harvard and Google imposed too many restrictions on the redistribution of the digitized material. What he doesn’t ask is why Harvard signed a bad deal in the first place. And the answer is: there was a different librarian and a different president then, and almost no one was consulted about the terms.

In a 2005 post entitled How Harvard and Google Got In Bed Together,¬†the ever-vigilant Richard Bradley noted that Sheryl Sandberg, who negotiated the deal on Google’s side, had been the chief of staff to Larry Summers, who, one might reasonably imagine, had a lot to do with cutting the deal on Harvard’s side (though the name in the news at the time was library head Sidney Verba, not Summers). See also a later post, Harvard Goes Ga-Ga Over Google.

Sandberg has been quite visible during the past few weeks defending Summers’ record on women, while his name was still in the air as a possible Treasury Secretary (for example, writing about Larry Summers’ True Record on Women).

I don’t doubt the truth of a word of what Sandberg says about Summers and women. The issue of women faculty has been way overblown as the source of Summers’ downfall at Harvard. The more serious issues had to do with the way he mixed friendships and business to Harvard’s detriment, most notably the scandal surrounding Andrei Shleifer’s role in Harvard’s venture to help the Russian economy. This deal between Harvard and Google also may have seemed good for both parties but could have used a few more independent eyeballs to prevent the problems that the new Harvard administration apparently identified. Has Summers learned his lessons about the wisdom of a bit more consultation and transparency?

The New York Times had an excellent story yesterday,¬†You’re Leaving a Digital Trail. What About Privacy? It has many of the usual themes — young people don’t value their privacy very much, especially if they get social connections in exchange for it. There is an interesting angle about how businesses are discovering the efficiencies that result from better interactions between workers, so this research is turning into a business management tool. But what I find most interesting is the orientation of the researchers doing this work.

“For most of human history, people have lived in small tribes where everything they did was known by everyone they knew,‚Äù Dr. [Thomas] Malone [director of the M.I.T. Center for Collective Intelligence]¬†said. ‚ÄúIn some sense we‚Äôre becoming a global village. Privacy¬†may turn out to have become an anomaly.‚Äù

I wonder — is that a validated fact of anthropology? Whether it is or it isn’t, isn’t it also a statement with vast political implications in a nation dedicated to individual rights?