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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.

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.,

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.

There’s a generally favorable review by Dan Clapper in the Asheville (NC) Citizen-TImes. (Or at least on the web site. You can never tell these days what’s actually printed on paper!)

Last week’s Intelligence Squared debate (about which I blogged earlier) is now up for viewing on YouTube, in 13 parts. You can find them by searching for “intelligence squared google”. My initial presentation is #4, and I respond to a question from Larry Lessig in #8.

For years, people have been observing that the wonderful surfeit of information sources available through the Web can result, paradoxically, in a narrowing of our perspectives. In the political realm, for example, liberals can now get all their news from liberal sites, and conservatives from conservative sites. As Cass Sunstein observes in Infotopia, speaking and listening only to people who think like us has a polarizing force — everyone just gets more extreme.

The Boston Globe has a good review today of a paper published in Science some months ago reporting that groupthink is affecting even scientific research publications — the lists of cited papers are becoming more homogeneous, not more varied, as the information sources diversify. There is even an analogy with popular music — yes, there is a “long tail” of music now available for special tastes, but the small number of big winners dominate music sales now more than ever. And so it is with scientific papers — with most available online, a smaller number are cited more often than in the past.

The paper suggests that Web search is fundamentally different from search through paper records, which puts more context around sources and causes us to be more critical before pursuing a reference. Clicking on links thoughtlessly is just too easy, and we are losing something in the process.

Hardly an open-and-shut case — the article mentions several dissents — but it makes sense to me.

Last night a team consisting of myself, Siva Vaidhyanathan (of UVa, author of Copyrights and Copyrwrongs and The Anarchist in the Library), and Randy Picker (of Chicago Law School) debated a team of Esther Dyson (author of Release 2.0), Jeff Jarvis (author of the forthcoming What Would Google Do?), and Jim Harper¬†(director of information policy studies at the Cato Institute). It was fun for everyone, I think. I could have argued either side, but I was recruited for the affirmative. I focused my argument strictly on Google cooperating with the Chinese government by producing a censored version of its search engine, which I rather too dramatically also referred to as an “instrument of thought control” and likened to a “brainwashing serum” that no responsible American pharma company would make for a foreign government. It was an Oxford-style debate; I took it as my job to sway the crowd and win the argument, without lying but perhaps by exaggerating if the other side would let me get away with it. I think several of the other participants took it rather more as an actual religious war.

In the pre-debate poll, the voting was very much against the motion; when the poll was repeated, it was a dead tie, 47%-47%, with 6% undecided. By the debate rules — winner whoever changes the most minds — our team won. Fitting, on the eve of the 40th anniversary of Harvard’s great comeback 29-29 win over Yale in football!

The debate is in the Intelligence Squared series. A bouquet to the sponsors and staff of the series; it’s a great thing to do. Last night’s will be up on Youtube by the end of the week and in an NPR one-hour edited version shortly thereafter.

There is a very positive review of Blown to Bits on the site of the Progress and Freedom Foundation (crossposted to the Technology Liberation Front).

One detail of which the reviewer was not aware — he wonders why the book is not available for download since we are so critical of copyright law, and the answer is that it will be, under a Creative Commons license, a year after its original publication date (that is, by mid-June 2009).

Blogging will be spotty this week as I am traveling. I’m giving two book talks en route, thanks to local Harvard Clubs — Wednesday in Greensboro, NC and Thursday in Chapel Hill.

Next Wednesday, November 19, I will be speaking at the Book House of Stuyvesant Plaza in Albany, NY — a public event organized by the Harvard Club of Eastern New York.