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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.

This entry was posted on Wednesday, December 3rd, 2008 at 7:03 pm and is filed under Miscellaneous, The role of government—laws and regulations. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.