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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?

I’ve been writing about Internet censorship, not just in Blown to Bits but in the Boston Globe (The Dangers of Internet Censorship). In a fascinating piece entitled Blacklisted in Cyberspace, James McGrath Morris describes a form of censorship I hadn’t encountered, consciously at least.

Morris publishes a monthly newsletter about the craft of writing biographies. Hardly sexy stuff, you’d think.

He runs his copy through a spam-checking software tool, to see if the spam filters of his recipients’ email servers or personal computers are likely to discard the newsletter before it is even delivered. He was shocked to discover that his last issue had a spam score that was through the roof. Why? I’ll quote:

Three sets of words among the issue’s many articles could derail my e-mail: a reference to “young adult,” a common classification for books intended for adolescent readers; a sentence in my editorial — “Speaking of legal matters, it’s getting nasty out there” — referring to the growing number of lawsuits; and a distinguished biographer’s discussion of writing a book for children that included the following comment: “At my public library I queried the children’s division librarian — what works, what does not, who is ‘hot.'”¬†The inclusion of “young adult,” “getting nasty” and “hot” among the thousands of words in my publication was like poison.

What’s an author to do? “Write around” these everyday phrases to satisfy the demands of the spam-checking software? Perhaps — but if the next release of the software is even more censorious, where would it end?

Ever get irritated that you have to register with a Web site to see something? When what you’re looking for is a one-off, and you have no reason to think you’ll ever want to go back to the site again, it’s annoying to have to supply an email address and other information with which you can be spammed and otherwise hounded later on.

Enter bugmenot. Type in the URL of a site requiring registration, and it gives you back a handle you can use to get into the site. A great privacy-preserver.

Ethical? You decide. But I’ll bet almost every heavy Web user has used some deceptive measure to avoid being tracked (for example, a fake name or an email address reserved only for these registration demands).

Ethical or not, it looks like using this site could set you up for doing some hard time in a federal penitentiary. Lori Drew was convicted of violating the Computer Fraud and Abuse Act because the jury deemed that by creating a fake identity as a boy, she had gained “unauthorized access” to the servers of MySpace, whose Terms of Service state that registration information must be truthful. By that logic, anyone using bugmenot is setting themselves up for indictment on the same charge.

The implications of the Drew decision are breathtaking. It looks like the federal government is getting into the business of enforcing truth-telling even in purely social uses of the Web.

Check out my review in the current issue of American Scientist of Jonathan Zittrain’s The Future of the Internet – and How to Stop It, online at http://www.americanscientist.org/bookshelf/pub/keeping-the-net-stupid.

And read Zittrain’s book.,

In Blown to Bits we discuss not just the case of Lori Drew, but the case of Jeffrey Berman, who allegedly groped a girl on public transportation near Boston. Another teenager snapped his picture with a cell phone, it was on the evening news, and he was arrested the next day. I used this case as an example of the good side of digital little-brotherism.

Berman has now copped a plea to keep out of jail, if he behaves himself. (Three years, if he doesn’t.) The Boston Herald reports this story under the wonderful headline, Girl’s pluck, pic put pusillanimous perv in his place.

I have a weird relationship to this case. Ever wonder what happened to that red-headed kid you were in Mrs. Dowd’s kindergarten class with? In my case, he turned into the groper on the T. I hadn’t seen or heard of him in at least 50 years, until I read the original Herald story about the incident and noticed that the Jeffrey Berman who was arrested was exactly my age ‚Ķ. Sounds like a pretty sad situation, and I’m glad he was apprehended.

The debate in which I participated (and won!) affirming that “Google Violates Its ‘Don’t Be Evil’ Motto” has been edited down to an hour for radio broadcast. It is available on the NPR web site.

So, as I feared,¬†Lori Drew has been found guilty. Not of the most serious charge, a conspiracy charge, but of three misdemeanor counts (for three separate times she posed as the fictitious “Josh Evans.”) Still, that’s a potential 3-year jail term.

But that’s a minor matter for the public, serious as it is for the Drews and Meiers. The important point is the one the New York Times quotes attorney Matthew L. Levine as making:

As a result of the prosecutor’s highly aggressive, if not unlawful, legal theory, it is now a crime to ‘obtain information’ from a Web site in violation of its terms of service. This cannot be what Congress meant when it enacted the law, but now you have it.

It wasn’t what Congress had in mind. Congress was legislating against hacking the databases of banks and credit card companies. The “unauthorized access” was password cracking and the like, not violation of the obscure terms in those multipage agreements we all click “I agree” on without reading them. The “obtaining information” was was getting credit card and bank account numbers, not the thoughts of teenage girls who happened to be expressing those thoughts on their MySpace pages.

In Thomas Paine’s The Rights of Man, Christopher Hitchens quotes an argument Paine made in France against the execution of King Louis XVI during the French Revolution. It is chillingly apt:

[Paine] argued that ‘an avidity to punish is always dangerous to liberty’ because it can accustom a nation ‘to stretch, to misinterpret, and to mis-apply even the best of laws. ‚Ķ He that would make his own liberty secure must guard even his own enemy from repression; for if he violates this duty he establishes a precedent that will reach to himself.’

Paine lost that argument, and the defense lost the Lori Drew case. Drew was convicted on charges completely unrelated to the awful fact that Megan Meier committed suicide. She would be just as guilty of having violated the Computer Fraud and Abuse Act if her daughter and Megan Meier had returned to being friends and all had lived happily ever after. The only difference is that the federal prosecutor would never have charged her under those circumstances. His interpretation of the law will give federal prosecutors enormous discretion about whom to put in jail simply because, as he said in about the Lori Drew trial,¬†‚ÄúThis was obviously a case that means a lot to me.‚Äù That should not be the standard for who gets prosecuted under a law and who doesn’t.

Postscript. Some commenters over at the Volokh Conspiracy have noted another interesting consequence of the fact that violation of a Web site’s Terms of Service can now be interpreted as a serious crime: When you agree to the typical ToS, you are agreeing that the site can change the ToS at any time and it is your own damned fault if you violate them because you didn’t check to see that they had changed! The relevant ToS in this case are MySpace’s, so let’s see what they say:

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. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.

Use of the term “Broadband” is unregulated in the US, but more and more people know they want it. Those conditions are ideal for shading the truth.

A new report in Great Britain states that more than 40% of “broadband” connections there are less than 2MB/sec. I’m not aware that any similar figures are available in the US, but I know some services offered as “broadband” are less than 1MB/sec. That’s still a lot better than dialup, which is limited to .06 MB/sec., but nowhere near the rates of at least 4MB/sec that make web surfing pleasant.

Another thing to realize is that ISPs split the channel capacity into upload and download speeds, generally allocating much more for download on the theory you shouldn’t be uploading movies (and they don’t care if you actually make your own). So they will give you two different numbers for the two directions — but it’s hard to be sure you can believe them anyway.