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New Terms of Use for the Volokh Conspiracy:
In light of the verdict in the Lori Drew case, I have decided to promulgate new Terms of Use for the Volokh Conspiracy. You are only permitted to visit the Volokh Conspiracy if you are in compliance with the Terms of Use. Any accessing the Volokh Conspiracy in a way that violates these terms is unauthorized, and according to the Justice Department is a federal crime that can lead to your arrest and imprisonment for up to one year for every visit to the blog.

By visiting this blog, you promise that:
1. You will not post comments that are abusive, profane, or irrelevant. Civil and relevant comments only, as indicated by our comment policy.

2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out.

3. Your middle name is not "Ralph." I've always thought Ralph was a funny name, and even odder as a middle name. No one with the middle name "Ralph" is welcome here.

4. You're super nice. We have strict civility rules here, and this blog is only for people who are super nice. If you are not super nice, as judged by me, your visit to this blog is unauthorized.

5. You have never visited Alaska. Okay, this one is totally arbitrary, but it's our blog and we can keep out who we want. Alaska visitors are out, too.
  If you post an abusive comment; you are an employee of the U.S. government; your middle name is Ralph; you're not super nice, as judged by me; or you have visited Alaska, I have kinda bad news for you: You are a criminal, as you have just violated 18 U.S.C. 1030(a)(2)(C) by accessing the Volokh Conspiracy's service without authorization or in excess of authorization. You are only authorized to visit the blog in compliance with the Terms of Use, and by violating these terms you have become a criminal by essentially "hacking in" to the Volokh Conspiracy.

  Anyway, those are our new Terms of Use; it's our service, so we get to set them as we want them. Meanwhile, have a safe and happy Thanksgiving weekend, everyone.
PatHMV (mail) (www):
Terms of Use for my comments at Volokh:

Readers and Conspirators all owe me a beer. Failure to owe me a beer is a violation of the terms of service of my comments. I'll call the FBI on every one of you who reads my comments without owing me a beer.
11.28.2008 1:25pm
Anon21:
Any plans to be involved with Ms. Drew's appeal, Prof. Kerr?
11.28.2008 1:29pm
Specast:
Bitter, table of one?

(Uh, oh, I think I'm in trouble!)
11.28.2008 1:29pm
Fedya (www):
If I can't pay for PatHMV's beer, I'm going to ask the Feds for a bailout.
11.28.2008 1:29pm
Chico's Bail Bonds (mail):
F*ck that Sh&t.
11.28.2008 1:30pm
MarkField (mail):
All those parameters, and I can still post. Unless this one is irrelevant. Oops.
11.28.2008 1:32pm
Ralph Vaughn Williams:
Well, at least it's not my middle name!
11.28.2008 1:34pm
George Weiss (mail) (www):
orin-you would need to get the visitors to agree to the TOS...since a TOS is a contract and it requires offer and acceptance.

there is caselaw on the subject regarding click through agreements as they bind people civilly (like on amazon and such...for forum selection clauses and waivers of consequential damages and other such things)

most circuits have said there must be more than a posting of the TOS on the site..but a click of "i agree" or some such thing.

that being said, you could probably have the TOS for commentators only and have the post comment button be the i agree button
11.28.2008 1:35pm
DiversityHire:
Shit, I'm an Alaskan expatriate who works for the government.

I hope the federal government gets real busy enforcing terms of use crimes, they won't have the time or money to do anything else. I suggest starting a Terms of Use War headed by a Terms of Use Czar and heralded by a nationwide "Just Click Accept" ad campaign.
11.28.2008 1:36pm
Milhouse (www):
What about age limits? Those are always good. We must protect the children, after all. I hereby declare that my comments may not be read by anyone under the age of 40; tender minds must be shielded from the discussion of mature adults. If you are under 40, please find the office of your local US Attorney and turn yourself in.
11.28.2008 1:36pm
pintler:
You forgot:

These may be changed without notice at any time.
11.28.2008 1:37pm
OrinKerr:
George Weiss,

No that is not correct: There is no requirement of a contract under the government's view.
11.28.2008 1:38pm
George Weiss (mail) (www):
come to think of it-

it is interesting how people are just realizing the absurdity of click agreements when done in the criminal context.

courts have already been pretty clear that they are civilly binding..so long as they are not unconcionable.

why not just include a TOS that every commenter who posts agrees they owe you $1000. Too little money to say its unconcionable and void-but enough to make yourself rich pretty fast.
11.28.2008 1:41pm
Bruce:
George, actually the law is somewhat murky on that. There have been cases that have thrown out non-clickwrap terms for lack of notice, but I'm not aware of a case that says that non-clickwrap terms are per se unenforceable. And there are cases saying that such terms are enforceable, although they mostly deal with robots (ironically, since robots can't read terms). E.g., Register.com v. Verio, or EF Cultural Services. In any event, the U.S. Attorney's position in the Lori Drew case is that you violate the CFAA if you violate terms that you don't even know exist.

In any event, certainly anyone actually reading this post wouldn't be able to make a lack of notice argument; not without committing perjury, anyway.
11.28.2008 1:42pm
OrinKerr:
George Weiss,

I recommend you read the government's filings in the Drew case: Their argument is significantly broader than even the very broad argument that you're assuming.
11.28.2008 1:44pm
◄Dave► (mail) (www):
Whew... that was close! I almost earned an update to my rap sheet. I have visited 49 States and lived in 16 of them; but I never made it to Alaska. ◄Dave►
11.28.2008 1:45pm
George Weiss (mail) (www):
Orin-

im not sure that the gov will stick to that.

the fact of the matter is in this case she did click the i agree button thus binding her to a contract. clearly the myspace TOS are only violated by those who agree...and everyone has the ability to navigate to the page and say NO and then not be in violation.

its is true that the statute says that all unauthorized access to a comp is a misdemenor..and the gov could claim its unauthorized even if you don't agree to a contract becuase the operator can keep out any people it wants.

however it makes their case much stronger that she agreed to the TOS.

i would look into that angle if you are going to do some appealin'
11.28.2008 1:46pm
OrinKerr:
George Weiss,

If you review the facts of the case, you will learn that Drew did not click the "I agree" button.
11.28.2008 1:49pm
George Weiss (mail) (www):
[reviewing]
11.28.2008 1:50pm
Jamie (mail):
Damn. As an Alaskan, I guess I'm out.
11.28.2008 1:53pm
John Burgess (mail) (www):
Does changing planes in Alaska count?
11.28.2008 1:54pm
David Bilek (mail):
I vacationed in Alaska not 3 months ago. I laugh at your terms of service. Come get me coppers, you'll never take me alive.
11.28.2008 1:55pm
Loren Heal (mail) (www):
1. As a non-lawyer my comments are always irrelevant here, but I'm never profane, by Jove.

2. After the bailout mania, is there anyone left who is not a government employee? Is that the joke, and I'm too slow to get it?

3. Check.

4. Check.

5. And the reason for my comment: I once flew from California to Japan, with a refueling stop in Anchorage. I never left the airport, but I did pay $6 for a hot dog. Am I guilt of having visited Alaska? Either way, am I allowed to post comments here?
11.28.2008 1:57pm
R*lph (mail):
The terms of the TOS are a bit ambiguous - are you saying that anyone whose first name is Ralph cannot use the service, or does that include people whose middle or last names are ralph?
11.28.2008 2:04pm
George Weiss (mail) (www):
orin-

i think the problem here is the other people set up the account and she used it. but in any case...that means that they agrees to the TOS and then let here use the account. thus she was bound by the restrictions they had agreed to

interestingly the jury was hung on the conspiracy count.
11.28.2008 2:05pm
Cardozo'd (www):
Orin,

Is everything regarding the case on lexis yet...or have you supplied links to information, and if you have, can you point me in the right direction.
11.28.2008 2:08pm
js5 (mail):
Orin!

you forgot to add the obligatory, "If you fit within these categories, this blog would be better off without you".
11.28.2008 2:12pm
jrman:
I need a clarification: I've never actually been on land in Alaska, but have sailed within her borders. Should I remove you from my bookmarks?
11.28.2008 2:17pm
Jonathan H. Adler (mail) (www):
Thank goodness these terms don't apply to conspirators.

JHA
11.28.2008 2:20pm
Toby:
Personally, I have always been fascinated by legal footers placed on email, to be read after you have read the email and subject to all sorts of dire consequences.

** Confidential Notice: This e-mail and any associated files are intended solely for the individual or entity to whom they are addressed. Please do not copy it or use it for any purposes, or disclose its contents to any other person. Further, this e-mail and any associated files may be confidential and further may be legally privileged. This email is from the *** business unit of *** plc

If you have received this e-mail in error, you are on notice of its status. Please notify us immediately by reply e-mail and then delete this message from your system. If you have read the contents of this message before seeing the contents, you are hereby required to scrath out your own eyes with a rusty spoon. This e-mail and any attachments thereto may be subject to the terms of any agreements between **** (and/or its subsidiaries and affiliates) and the recipient (and/or its subsidiaries and affiliates).


I particularly enjoy these messages appearing in public list servers on long-standing conversations, where it is obvious that the "originator" has interacted with the public forum repeatedly over several days.
11.28.2008 2:25pm
Roger Schlafly (www):
When is Mrs. Meier going to be prosecuted for letting someone under the age of 14 access MySpace? That violated the MySpace TOS.
11.28.2008 2:27pm
Confused One:
I think we can all agree that libertarianism has gone the way of marxism--it's great, in theory!

Heh.
11.28.2008 2:33pm
JB:
Orin, you are a blogger a commenter would kill him/herself over.

/I'll take a window seat on the train to hell
11.28.2008 2:33pm
Edward A. Hoffman (mail):
These terms would carry a lot more weight if the site were called "The Kerr Conspiracy".
11.28.2008 2:35pm
JamesInSeattle (mail):
What happens if I put modifications to the TOS in the headers for every form that I send? I can certainly add entries to every form post that say something like:

X-Header-TOS: Modifications to Terms of Service. Any terms you have proposed are void. They are replaced with my terms of service. Every time I visit your site, you owe me a beer. And we're talking _good_ beer, none of that mass-produced swill advertised on television. If you do not agree to these terms, you must block packets from this IP address and any IP address I may use in the future. If you do not block packets from this IP address, or any other IP address that I use, I can assume that you have agreed that your terms are void and my terms are in effect. You agree that I have the right to change these terms of service with no notice to you, and you agree to abide by the new terms without exception.
11.28.2008 2:40pm
guest (mail):
Oh look! Bubbles!

(Am I a felon now?)
11.28.2008 2:42pm
Gilbert (mail):
Your TOS prohibit people who have visited Alaska. But what if I live there ... and hate it?
11.28.2008 2:57pm
hattio1:
Gilbert,
If you live in Alaska and hate it, there is obviously somethign wrong with you. If you live in Alaska and love it, like all right thinking people, you should still be allowed to post.
11.28.2008 3:03pm
DiverDan (mail):
Well, I do qualify under #2, #3, and #5. Not too sure about #1 - I never consider my comments either abusive (but I have a very high abuse threshhold) or irrelevant (I take the Hindu view that EVERYTHING is connected), but I'm pretty sure that those less tolerant might disagree. As to #4, if you are talking generally, then I'm out; I'm in the Dr. Gregory House school of thought that excessive niceness is a form of mental disorder. I'll try to be reasonably nice from here on out (past conduct cannot count as a breach; these are new TOS), but again, my definition of reasonably nice is a pretty low threshhold. So, am I in or out?
11.28.2008 3:07pm
Hoosier:
I'm not certain how this affects me, OK. To what extent is insanity taken into consideration in cases like this? Please answer: I need to know!

(Also, am I allowed to visit Lileks on the same day as I visit VC? What if I know where Alaska is located--at least vaguely--but have never had a herptile pet named "Ralph"? What if I am super-dee-duper nice, but am also over 40 and have never owned any Hello Kitty product?)

Damn! This is getting complicated.

I was going to ask what if I work for a non-profit corporation that is heavily subsidized by the government. But then it occurred to me that the Conspiritors are university faculty, and thus are in the same boat. So I suspect I'm good there.
11.28.2008 3:11pm
John Ralph Henry II:
3. Your middle name is not "Ralph." I've always thought Ralph was a funny name, and even odder as a middle name. No one with the middle name "Ralph" is welcome here.


According to Thom Mrozek, a spokesman for the U.S. attorney's office in Los Angeles, the government doesn't intend to enforce terms of service prohibiting assumed names—under ordinary circumstances:
"We've never made any pretense that there's going to be a tsunami of prosecutions related to people posing under different names on the Internet," Mrozek said. "This is a very unique case that had very tragic consequences, and after a thorough review, we thought that it deserved to be indicted."
11.28.2008 3:15pm
Hoosier:
Wait. I think I have it: You really can't punish me for uncivil posts if I have a disability that results in that sort of thing, can you? ("ADA: It's not just another incredibly broad law!") I've been diagnosed with a chronic 'anti-social disease' that 'limits one or more major life functions.' As far as you know.
11.28.2008 3:15pm
Joe in NM:
Orin, I offer an inclusive, tolerant and market-based solution.

Simply charge a substantial usage fee for those on your somewhat arbitrary offender list. I noticed you do accept Paypal, so you're ready to start today.

This approach is easy for everyone involved, and might result in substantial financial gain for each Volokh Conspirator!

(Sarcastro should not be required to pay)
11.28.2008 3:15pm
kiniyakki (mail):
Rats - I was about to invite Mr. Kerr to come and visit me and go fishing! Obviously, he will not want to come now. Just as well, if the fishing isn't good then I sometimes cuss, and that wouldn't have gone over well either.
11.28.2008 3:23pm
kimsch (mail) (www):
Oh look! Bubbles!

You found her? Yay!
11.28.2008 3:24pm
zippypinhead:
"Employee of the U.S.Government?". That would be a continuing disqualification in the absence of affirmative restoration of rights or Presidential pardon, just like "felon," correct?

Hey, I know this former DOJ prosecutor and former Federal law clerk named Orin "Ralph" Kerr. Clearly a recidivist. Unpardonable offenses to a libertarian. Has a suspicious thing for Alaskan moose hunters, too..

Pay no attention to the black helicopters hovering over your house, Professor...
11.28.2008 3:29pm
einhverfr (mail) (www):
Hmmmm.... I note that none of your terms exclude Sarah Palin from posting here.....
11.28.2008 3:32pm
CrimLawStudent (mail):
I don't understand how this case will survive the motion for a directed verdict, especially when Drew didn't read the Terms of Service. The intent requirement of 18 U.S.C. 1030(a)(2)(C) seems to be way too high a bar for the prosecution to reach.

The judge was uneasy about the prosecution's theory from the start, right? And it's not clear whether public opinion is leaning one way or the other?
11.28.2008 3:32pm
JosephSlater (mail):
This term is ambiguous, I think.

2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out.

What about employees of state and local governments? The first sentence excludes only federal employees. The examples listed begin with a federal sector job, but then include jobs found in both federal and state governments. The final, explanatory sentence would seem to cover all public workers.

As an employee of a state government (the great state of Ohio), I would like my ability-to-post status clarified (I don't think the other terms exclude me).
11.28.2008 3:43pm
gregH (mail):
Dear Dr. Kerr,
I believe your new rules are wise and just, if I might be so bold as to be allowed to say so, sir. And I'm really glad that you are getting rid of all of those other nasty, illegal "commenters" who aren't me, sir.
11.28.2008 3:53pm
kerr's sock puppet again:
Professor Kerr, I really do think your new TOS is an improvement. Its always bothered me that the old VC TOS, perhaps alone among blogs on this Intertubes thingie, includes the word "blowhard". A word I haven't been able to find a definition of anywhere in 18 U.S.C., no matter how hard I search for it. You have now corrected the void for vagueness problem that made the old TOS unenforceable!

AUSAs everywhere thank you!
11.28.2008 3:58pm
Behringer:
is it really this easy to put people in prison?
11.28.2008 3:58pm
A. Zarkov (mail):
Some of my best friends are named "Ralph," but in all truth I hope my sister doesn't marry one.
11.28.2008 3:58pm
ForWhatItsWorth:
"2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out."

But.... but.... but..... what about retired federal employees who must carry a federal ID? Sir! (can't forget the sir......)
11.28.2008 4:07pm
Milhouse (www):
Do you mean the country Alaska, or the whole continent?
11.28.2008 4:08pm
Milhouse (www):
Oops, forgot to sign
— Milhouse Ralph VanHouten
11.28.2008 4:09pm
deathsinger:
But would you then defend (pro bono) said violator against the government prosecution?
11.28.2008 4:11pm
Allan Walstad (mail):

(Sarcastro should not be required to pay)

Speaking of whom, where is he or she when we need him or her?
11.28.2008 4:31pm
einhverfr (mail) (www):
ForWhatItsWorth:

Of course given the niceness clause, Kerr reserves the right to seek charges against any visitor at his discretion. I would expect any complaint to include "And this individual broke the super-nice clause too!"

However, a retired employee is no longer an employee. A plain reading of the terms of service would include only current employees (including armed forces personnel) but not those who are retired.
11.28.2008 4:33pm
whit:
i guess i'm ok.

i'm a govt. employee, but not a "U.S. Government" e.g. federal employee.

I used to live Alaska, but never visited.

and god knows, i'm SO relevant :l
11.28.2008 4:40pm
Lucius Cornelius:
Professor Kerr tasks me. He tasks me and I shall have him. I'll chase him 'round the moons of Nebir and 'round the Antares Maelstrom and 'round perdition's FLAMES before I give him up!

I am a "government type." Well phew on you!!!! I am employee of the State of Ohio, not the US Government, so I guess I get to keep on posting." Hah hah....should have drafted your rules more carefully!

Hey wait, I had a thought. I think your prohibition against "government types" includes all lawyers. I mean, lawyers are all "officers of the court" and we all have the title "Esquire."
11.28.2008 4:42pm
Cardozo'd (www):
Can someone tell me where to find briefs and such things for this case....any and all I can know, I'm very curious.
11.28.2008 4:52pm
Toby:
But so many colleges, universities and states receive so many federal monies...
11.28.2008 5:01pm
notaclue (mail):
Forgive me for injecting a serious note into a string of entertaining comments. IANAL, and I don't understand how/why the law can enforce a private company's rules by criminalizing something that the company has proscribed.

For many years our Tennessee concealed-carry law made it illegal to carry a handgun, even with permit, into a business that had "post[ed] or announce[d]" that they allowed no guns on their premises. The threshhold for posting or announcing was low and ambiguously stated: any kind of sign would do, or a note in the company's literature, etc. I don't know if anyone was successfully prosecuted under this law before it changed, but it always bothered me that the state could criminalize behavior based on the company's decision, and with little clarity for the citizens involved.

I guess I'm limping toward a libertarian-style rhetorical question: What business does the state have enforcing MySpace's, or some Tennessee business's, rules with criminal sanctions?

Thanks, I feel better now.
11.28.2008 5:07pm
xyzzy:
Can someone tell me where to find briefs and such things for this case....any and all I can know, I'm very curious.

Citizen Media Law Project: United States v. Drew
11.28.2008 5:08pm
Pyrrhus (mail) (www):
I'm curious what counts as "use" under the government's theory in the lori drew case. Is reading the blog use for which we can be punished? Or do we have to comment to be prosecuted?
11.28.2008 5:08pm
Michael Drake (mail) (www):
Neither the content of this comment nor the comment in its entirety shall be construed as a "visit" to the Volokh Conspiracy. So suck on that, Kerr.
11.28.2008 5:15pm
PatHMV (mail) (www):
notaclue... happens all the time, it's not at all unusual. Private party generally invites the public onto their property, then notifies John Doe that he is not allowed on the property. State can then prosecute John Doe for trespass if he disobeys the private person's instructions.

In Louisiana, property must be formally "posted" before the crime of trespass can be committed. That applies only on some types of property, not others. There are details in the law providing for what type of sign must be hung, and how frequently, in order for trespass to be prosecutable.

You may commit fraud if you lie on a form or application you're making to a private party. The government can prosecute you for that crime.

Even basic theft is not theft if I give the person permission to take my property. Whether it's theft or not depends entirely on whether I give consent to the taking of my property or not.
11.28.2008 5:54pm
David Warner:
Does #3 apply doubly to ridiculously pretentious pronunciation of said name?
11.28.2008 5:55pm
Bill McGonigle (www):
I think I can make a pretty strong case that any professors who are employed by schools which accept federal funding are, at least partly, federal employees and as such may no longer post here.


----
By reading this message you are hereby informed that you must buy me a nice cup of tea.
11.28.2008 5:56pm
David Warner:
OK,

You can take the VC from me when you pry it from my cold, dead keyboard.
11.28.2008 5:57pm
OrinKerr:
Bill writes:
I think I can make a pretty strong case that any professors who are employed by schools which accept federal funding are, at least partly, federal employees and as such may no longer post here.
Incorrect. I write the TOS, not you, and I say what the TOS mean. My visits are authorized; yours are not, by my decree. Sorry!
11.28.2008 6:00pm
Zak@Dartblog.com:
It strikes me that folks working for the government could use Volokh the most.
11.28.2008 6:01pm
einhverfr (mail) (www):
Whit: But are you super-nice?
11.28.2008 6:13pm
einhverfr (mail) (www):
Orin Kerr wrote:

Incorrect. I write the TOS, not you, and I say what the TOS mean. My visits are authorized; yours are not, by my decree. Sorry!


Evidently Bill McGonigle wasn't super-nice ;-)
11.28.2008 6:17pm
xyzzy:
I'm curious what counts as "use" under the government's theory in the lori drew case.

The United States Attorney who prosecuted this case, Thomas O’Brien, said there is one “overwhelming message” to take home:
Mr. O’Brien, who tried the case himself with the firepower of two subordinates, said he was pleased with the verdict. "The overwhelming message,” he said, “is if you are going to attempt to annoy or go after a little girl and you’re going to use the Internet to do so, this office and others across the country will hold you responsible.”

Wired reports the U.S. Attorney's “overwhelming message” with a little further detail:
Asked why he took the unusual step of prosecuting the case himself instead of passing it off to assistant U.S. attorneys, O'Brien said the case "means a lot to me," adding, "you can't help but be touched by the tragedy."

He also said that the indictment sent a message that "if you are going to ... go after a little girl, this office as well as other U.S. attorney offices, will do anything possible to go after you."

He added that he was "astounded by some of the comments I read, that people think they can do whatever they want on the internet." He said the case was a warning to parents that if they're not watching what their kids are doing online, "you better be."

Today, an AP story has some color commentary:
Parry Aftab, a lawyer and executive director of [WiredSafety.org], said she believes Drew's conviction will change the environment related to cyberbullying and cyberstalking.

"The verdict has made it very clear if you use the Internet as a weapon to hurt others, especially young, vulnerable teens, you're going to have to answer to a jury. This is not acceptable."

I don't think the government's theory of “use” in this case could be more clearly obvious.
11.28.2008 6:33pm
brent:
Alaska is the only state I've never been to. Awesome!
11.28.2008 6:36pm
gregH (mail):
Dear Dr. Kerr,
May I suggest, sir, that you just kill them all and let God sort them out, sir?
It's worked before, sir.
You can let me continue to post though, sir. Like you, I am a warrior for righteousness.
And soldiers deserve soldiers, sir.
11.28.2008 6:38pm
Bill Poser (mail) (www):
Is it clear that an appeal will be necessary? Isn't the defense's motion on the law still pending? With luck, the court will decline to accept the government's legal theory.

I've visited Alaska, but I'm outside the jurisdiction of the United States.
11.28.2008 6:39pm
Sarcastro (www):
First they came for the myspace, and I did not speak, because I was not into that stuff.

Then they came for the Freepers
and I did not speak up, because I was not clinging bitterly to my guns and religeon.

Then they came for the FARKers
and I did not speak up, because I was not a frat boy.

Then they came for the KOSsaccs
and I did not speak up, because I was not angry all the time.

Then they came for the Volokh posters,
and by that time there was no one left to speak up
11.28.2008 6:41pm
zippypinhead:
"Incorrect. I write the TOS, not you, and I say what the TOS mean. My visits are authorized; yours are not, by my decree. Sorry!"

But that's per se NOT "super nice." Professor Kerr will be pleading guilty momentarily. But if he flips on enough of his co-Conspirators, he might still qualify for a 5K1.1 downward departure at sentencing.

Dime out Lindgren, and I might even recommend you for straight probation, Professor Felon...
11.28.2008 6:43pm
whit:

"The verdict has made it very clear if you use the Internet as a weapon to hurt others, especially young, vulnerable teens, you're going to have to answer to a jury. This is not acceptable


victimology 101.
11.28.2008 6:46pm
zippypinhead:
Aw, nuts. Sarcastro wins again!

"FARKers?" Just had to ask my son to define that. He will be laughing for hours. I feel old...
11.28.2008 6:49pm
whit:

happens all the time, it's not at all unusual. Private party generally invites the public onto their property, then notifies John Doe that he is not allowed on the property. State can then prosecute John Doe for trespass if he disobeys the private person's instructions.

In Louisiana, property must be formally "posted" before the crime of trespass can be committed. That applies only on some types of property, not others. There are details in the law providing for what type of sign must be hung, and how frequently, in order for trespass to be prosecutable.



the first paragraph defines what is usually referred to as "trespass after prohibition"

which is in no way relevant to the drew case, since myspace never contacted her directly and advised her to immediately leave their site or they would press charges for (computer) trespass.


the drew case is analogous to you walking into a store (myspace is a commercial enterprise that INVITES people to join. that's the whole frigging point. much like stores that invite people to shop), that has a sign posted near the door with various and sundry rules, to include (no barefeet, no red shirts, no hats, etc.)

these rules are routinely ignored and you notice tons of people walking around the store with bare feet, red shirts, etc. and nobody gives a damn.

then, you are mean to another customer of the store, and without even being told to leave the store, the feds jump in and prosecute you for violating the TOS of the store. you are wearing a red shirt after all.

the fact that numerous people are walking around with red shirts and store has ignored them, the fact that you were never told "leave the store now, or we'll charge you with trespass" is irrelevant to the feds, etc.

that's the analogy. i've investigated scores of trespass complaints and people do not get arrested for walking into a store, in violation of some rule of the store (posted or not).

the only times people get arrested is when a store owner tells a person to leave, the cop responds, the cops relays the request and the person STILL refuses to leave.

or...

when a person has been formally trespassed (issued a written notice that any return to the property will be a trespass) and that person subsequently returns to that property.

both types of trespass are "fair", "just" and have some sort of due process/notification that the drew case lacks.

websites like myspace are very analogous to a store - they are businesses that have the right to prohibit anybody (apart from various civil rights reasons, like on account of race, etc.) from being there, and trespass them but must GIVE FRIGGING NOTICE and GIVE THE PERSON A CHANCE TO OBEY.
11.28.2008 6:55pm
einhverfr (mail) (www):
Bill McGonigle:

You probably have a point but terms of service don't apply to the proprietors. :-)
11.28.2008 7:02pm
MCM (mail):
why not just include a TOS that every commenter who posts agrees they owe you $1000. Too little money to say its unconcionable and void-but enough to make yourself rich pretty fast.


Yeah... I don't think that would survive.
11.28.2008 7:09pm
subpatre (mail):
Mad Magazine, c 1960s, had a picture resembling a carved Central American diety. The caption was something like 'This is the image of the fiendish god Xoldcereal (or something) and whoever gazes upon its image will die. Sorry about that.'

Amazing that 4 decades later the government takes such devices seriously.
11.28.2008 7:12pm
trad and anon (mail):
I like JamesInSeattle's idea.

Modifications to Terms of Service. By accepting this comment you agree that any terms you have proposed are void. They are replaced with my terms of service. Every time I visit any of Your Websites (as defined below), you owe me €100 payable immediately. Any delay in such payment shall be subject to 200% interest compounded continuously.

You further agree that I shall have the power and authority to approve all post(s) by bloggers on this site and any other sites owned or controlled by you or of your subsidiaries or affiliates (collectively, "Your Websites") before such post(s) are posted. If I do not approve any such post or posts, at my sole and absolute discretion, I shall have the authority to modify such post(s) in any and all respects at my sole and absolute discretion and post them on any of Your Websites under such blogger's name or any other name of my choosing.

If you do not agree to these terms, you must block all packets from this IP address and any IP address I may use in the future. If you do not block all packets from this IP address, or any other IP address that I use, I can assume that you have agreed that your terms are void and my terms are in effect. You agree that I have the right to change these terms of service with no notice to you, and you agree to abide by the new terms without exception.
11.28.2008 7:13pm
einhverfr (mail) (www):
whit-- that is fairly close to my point. That is an excellent post and well-thought-out.
11.28.2008 7:22pm
Bleepless:
What does any of this have to do with the UFO conspiracy?
11.28.2008 7:29pm
Bruce_M (mail) (www):
You have to get people to check a box or click a button that says they explicitly accept the TOS. At least, that's the industry standard, and that way they can't say they never saw/read the TOS.

Surely the government would argue that any TOS that forbids government agents/employees from accessing the website would be against public policy, since they need to do that in order to invade our privacy n stuff. You know, for the children. I don't know of any court that wouldn't agree with the government's position on that, which is not to say it's right, or that this whole "it's illegal to violate a TOS" argument is right.

This is why I hate prosecutors so much. They will interpret the law in the most insane ways that produce the most horrendous, illogical results just to get a (misdemeanor) conviction.

That's why victims should not be permitted to speak to prosecutors except with respect to court testimony, and vice versa, and why prosecutors should not be promoted based on conviction rates. Not that this would ever happen. But there's too much incentive to get convictions in order to placate victims and get promotions. Let the world crumble before we let the defendant go free....
11.28.2008 7:34pm
Bill McGonigle (www):
OK, Orin, but now you're on the hook for that cup of tea. :)
11.28.2008 7:55pm
OrinKerr:
BruceM,

In keeping with my usual rule that I disagree with everything you say, I will simply note that your position about the government's view is quite different from the government's actual position.
11.28.2008 8:03pm
PatHMV (mail) (www):
whit, I wasn't saying that the examples I gave were analogous to the Lori Drew case, I was just pointing out that the broader statement, that criminal prosecution can/should never hinge on decisions and notices made by private citizens, was incorrect. I agree that the Lori Drew case goes too far. I would have preferred to see the government charge the defendant with something like negligent homicide, to prosecute what was really bad about her actions... even if that prosecution were ultimately unsuccessful. I agree with Orin that the TOS theory is a very bad, very dangerous legal theory.
11.28.2008 8:08pm
Stormy Dragon (mail) (www):
4. You're super nice. We have strict civility rules here, and this blog is only for people who are super nice. If you are not super nice, as judged by me, your visit to this blog is unauthorized.

Darn it, I'm a complete asshole.
11.28.2008 8:08pm
CDR D (mail):
Well, I flunk all except #3 and #4.

As a retired Coast Guard Officer, whose middle name is not "Ralph" (although I've called his name occasionally in rough seas)... and someone who has enough of a salty vocabulary to have had the honor of being chastised by the blog host at least once... and someone who has spent many days, weeks, months in Alaska and Alaskan waters...and someone whose wife of 43 years would laugh herself into a coma at the description "super nice"...

...I guess I'm disqualified from posting here any more.
11.28.2008 8:13pm
AK (mail):
We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out.

Who pays Eugene Volokh's salary again? I forget.
11.28.2008 8:16pm
Porkchop:
I used to work for the federal government, but that was two hours ago. I'm in private practice as of tomorrow morning. You don't have any kind of cooling-off period, do you?

Sincerely,

Porkchop, happy ex-Fed
11.28.2008 8:20pm
whit:

whit, I wasn't saying that the examples I gave were analogous to the Lori Drew case, I was just pointing out that the broader statement, that criminal prosecution can/should never hinge on decisions and notices made by private citizens, was incorrect. I agree that the Lori Drew case goes too far


ah... understood now.

nice. carry on.
11.28.2008 8:30pm
Realist Liberal:
Sarcastro wins yet again.
11.28.2008 8:39pm
Seamus (mail):
I guess I'm limping toward a libertarian-style rhetorical question: What business does the state have enforcing MySpace's, or some Tennessee business's, rules with criminal sanctions?

Oh, come on; surely you know the answer to that one: It's for the children.
11.28.2008 9:08pm
Cornellian (mail):
I guess I'm limping toward a libertarian-style rhetorical question: What business does the state have enforcing MySpace's, or some Tennessee business's, rules with criminal sanctions?

Oh, come on; surely you know the answer to that one: It's for the children.


You can also rephrase this as a question, namely "how much money have you donated to a Washington politician lately?"
11.28.2008 9:26pm
Cornellian (mail):
I think a link to Conrad Black's description of America's prosecutocracy is appropriate here.
11.28.2008 9:29pm
SATA_Interface:
This is why we can't have nice things...
11.28.2008 9:35pm
John R. Mayne (mail):
Phew! Not the U.S. Govenment! I'm still good!

And, considering the morons I sometimes have to put up with, I am super-nice, since I have not hit anyone with a crowbar yet.

As to the underlying case, I hope your client loses a civil suit for approximately all of the money in the world, and I hope she becomes a social outcast. [Only my super-niceness prevents a more severe view.]

--John R. [Not for Ralph!] Mayne
11.28.2008 10:01pm
ThisIsAPhonyName:
if someone posts with the above name, and a website permits access, were the TOS violated? Was the information provided untruthful?
11.28.2008 10:23pm
Duffy Pratt (mail):
Does flying over Alaskan airspace count as a visit within the meaning of the TOS? Would that be a question of fact for the jury to decide in my prosecution?

As for the rest, I was a clerk for a federal judge. What are the time restrictions on federal employment. (Most of the professors who post here probably have the same stain on their record, but they aren't bound by the TOS in the same way.
11.28.2008 10:51pm
Chris Farris (mail) (www):
Oh most great and mighty blog-overlord. My question is barley worthy of your might greatness, but I beseech you to answer my humble query:

Are employees of AIG and Citibank verboten too?
11.28.2008 10:51pm
subpatre (mail):
Jef Raskin (started Apple's Macintosh computer project) saw this coming a decade ago. The Sponge
11.28.2008 11:14pm
brad:
I for one, welcome our new TOS wielding overlords.
11.28.2008 11:20pm
David Schwartz (mail):
A web site that I manage for work-related reasons has had a set of ridiculous terms of service for many years. Only one person has ever complained about them or otherwise given us any indication that they ever read them. An example:
"Should a court find that some provisions of these terms of use are unenforceable, incomprehensible, shock the conscience of decent people, or are a violation of the Geneva Convention, that provision shall still be in effect."
11.28.2008 11:21pm
Dave Hardy (mail) (www):
"I agree that the Lori Drew case goes too far. I would have preferred to see the government charge the defendant with something like negligent homicide, to prosecute what was really bad about her actions"

I'd agree. But those would be State charges, so the Fed authorities would lack the critical element of the offense...

Lots of new media coverage.
11.29.2008 12:09am
Dave N (mail):
(Sarcastro should not be required to pay)
Sarcastro's first name is Ralph?
11.29.2008 12:10am
Jonathan Limebrook (mail):
Goodbye, everyone. I lived in Alaska, so I thought I was OK, but then I realized I have visited twice since I moved away. Also, I was a postal clerk for a year in 1976-77. My middle name is not Ralph but I might as well get it changed to Ralph. Now that I'm so screwed on the other counts. Jeez.
11.29.2008 12:13am
Dave N (mail):
And I made an irrelevant comment, so I guess I should be banned or prosecuted.

I was meaning to ask if Sarcastro's middle name was Ralph.
11.29.2008 12:14am
whit:
negligent homicide? are you serious?

how many boyfriend/girlfriends tell the other words to the effect that lori drew told meier (the thing about the world would be better off with her dead).

keeeeeeeeriiiiist!

it's just frigging amazing. it's results based analysis all over again. just because some 13 yr old was wack enough to kill herself doesn't make lori drew criminally responsible for her death. why would you want somebody prosecuted for something they are clearly not guilty of?
11.29.2008 12:25am
Speedwell (mail):
Bill, your tea is ready. Come drink it before it gets cold. I didn't buy that good Earl Grey last time I passed through Heathrow for nothing, you know.

My TOS states that if you don't accept your tea before it cools to optimum drinking temperature, I get to drink it instead. And the court might support me, since I am reasonable; my preferred drinking temperature is a little cooler than what most people prefer.
11.29.2008 12:42am
einhverfr (mail) (www):
Whit wrote:

how many boyfriend/girlfriends tell the other words to the effect that lori drew told meier (the thing about the world would be better off with her dead).


Just to be accurate, Ms Grills admitted to sending the post saying "the world would be better off without you" (and on that basis the jury acquitted on the related charge) so we would be discounting that comment from the words Lori told Meier. Yet Grills was offered immunity.....

However, I agree with the main thrust of your point. I don't think these sort of words add up to negligent homicide and besides the jury couldn't even convict Lori for the felony count here, so....


it's just frigging amazing. it's results based analysis all over again. just because some 13 yr old was wack enough to kill herself doesn't make lori drew criminally responsible for her death. why would you want somebody prosecuted for something they are clearly not guilty of?


"But somebody's gotta pay for Megan's death! Who cares if they didn't really break any laws?"

Unfortunately that sort of sentiment seems to occur frequently around these sort of issues.
11.29.2008 2:04am
CrimLawStudent (mail):
just because some 13 yr old was wack enough to kill herself doesn't make lori drew criminally responsible for her death.

Way to be compassionate.

If you spent a little time reading about the case, you might have realized that she was being prosecuted under a federal computer fraud statute. See 18 USC 1030.

Lori Drew wasn't found criminally responsible for that girl's death; the judge even gave a jury instruction that this case wasn't about the suicide. See here, and here. Professor Kerr says this much in a post made a few days ago. See here.

Obviously, however, the jury may have been motivated by the evidence of the suicide to come to an equitable decision. If that's the case, it's up to the judge to allow the Rule 29 motion. As I previously mentioned: if Lori Drew didn't even read the Terms of Service, it becomes difficult to believe that she intentionally violated them (although the jury is welcome to make that inference). Though, correct me if I'm wrong here, the more interesting question is whether violating the ToS is equivalent to "intentionally access[ing] a computer without authorization or exceed[ing] authorized access."

By the way, there are plenty of anti-harassment laws that might have made Drew's conduct criminal under different circumstances. And, in response to this tragedy, Missouri passed a cyberbullying law which certainly would make her conduct illegal now. See here.
11.29.2008 3:18am
Lib:
CDR D, Sorry, by posting a comment in which you clearly indicated that even by making the post you knew your post was in violation of the TOS, you are guilty. Please report within 12 hours to your local FBI office for prosecution.

Hopefully the judge and jury will be understanding -- perhaps you can redeem yourself after you are released.
11.29.2008 3:30am
whit:




If you spent a little time reading about the case, you might have realized that she was being prosecuted under a federal computer fraud statute. See 18 USC 1030.



i know that. i was responding to the posters here who blame her for the death.

reading comprehension... try it for size

i am well aware the issue with drew was the TOS violation.


Obviously, however, the jury may have been motivated by the evidence of the suicide to come to an equitable decision.


"equitable"? try ... prejudiced. like the mention of the suicide wasn't going to influence the jury? lol


By the way, there are plenty of anti-harassment laws that might have made Drew's conduct criminal under different circumstances. And, in response to this tragedy, Missouri passed a cyberbullying law which certainly would make her conduct illegal now. See here.




ah yes. "cyberbullying". classic kneejerk "do it for the children" bad legislation. which i have pointed out more than once.

the bullying thing (especially in cases like this) is ridiculous.

there's a simple way to avoid an internet "bully". delete the frigging emails and block the sender.

bullying laws in general (non cyber type) are overbroad, and/or redundant.

we have laws against criminal (true) threats, robbery, and assault.

already
11.29.2008 4:00am
Joey32 (mail):
I like how BruceM posted something that had already been directly addressed and discredited in the comments above. Read the comments before posting a correction to a conspirator, dude! FAIL!

Aw crap, they're coming for me aren't they?
11.29.2008 4:21am
Pat Patterson (mail):
So with Ralph not allowed does that apply to residents of Dusseldorf as well?
11.29.2008 4:28am
CrimLawStudent (mail):
Er, by equitable I meant that it was a decision that was not decided as a matter of law but rather was motivated by some (vague) notion of "justice." But you're right, prejudiced is certainly another way to put it. Not that I would assign error to the judge when he decided to allow the evidence in; on the contrary, given the IIED element of the charge, it would seem to me that the judge made the right decision.

As for people blaming her for the child's death -- why not? It seems that there is "but-for" causation here. Is there "legal" causation such as to hold her criminally liable for her actions in MO? No. But that doesn't mean that people can't believe, in a normative sense, that there should be criminal liability for such conduct.
11.29.2008 4:42am
whit:

As for people blaming her for the child's death -- why not? It seems that there is "but-for" causation here. Is there "legal" causation such as to hold her criminally liable for her actions in MO? No. But that doesn't mean that people can't believe, in a normative sense, that there should be criminal liability for such conduct.



cmon. a "but for" causation?

there is a woman who was mean to a 13 yr old girl, and said some things to her that are not at all unheard of in real relationships.

that this girl was too fragile to handle that is sad, but saying it's drew's fault is ridiculous.

and sure, people can believe (in a normative sense...) that there SHOULD be criminal liability for such conduct.

just as you can believe that a bartender who served a guy 5 drinks, and the guy went home and beat his wife , has criminal liability for the beating, because the guy wouldn't have beaten his wife if he was sober.

get real.

it is simply NOT lori drew's fault that the girl committed suicide. based on what i have read it's nobody's fault.

i realize people here are (to a large extent) lawyers, and lawyers LOVE to place blame. but in a legal sense, there is no blame.

if this girl was so frigging fragile, her next boyfriend at school could have pushed her over the edge. it wouldn't be his fault either
11.29.2008 4:56am
CrimLawStudent (mail):
bullying laws in general (non cyber type) are overbroad, and/or redundant.

I don't know much about this, but aren't "bullying" laws really just state mandates for schools?

For example, from this article...

"[The Arizona] law requir[es] school districts to have a written plan to prevent harassment and intimidation. It directs and requires school district governing boards to adopt, prescribe and enforce policies and procedures to prohibit pupils from harassing, intimidating and bullying other pupils on school grounds, on school property, on school buses, at school bus stops and at school sponsored events and activities...."


I'm not sure how that is overbroad?
11.29.2008 4:58am
CrimLawStudent (mail):
just as you can believe that a bartender who served a guy 5 drinks, and the guy went home and beat his wife , has criminal liability for the beating, because the guy wouldn't have beaten his wife if he was sober.
I have no idea about criminal liability, but there are "dram shop" laws that pertain to civil liability in these sorts of situations (although not exactly in your hypothetical).
11.29.2008 5:07am
CrimLawStudent (mail):
whit,

Are you arguing for the general proposition that no one can be at fault for the suicide of another? Or is that just how you come out on the basis of the facts of the Drew case?
11.29.2008 5:20am
lucia (mail) (www):
I've decided I'm super nice and that any and all reasonable people, would agree I am super nice, so I get to post. Thank the wisdom of the Feds that national laboratories are owned by the government but operated by contractors. Officially, the University of Chicago is my employer.

Looks like it's going to be lonely around here though.

As an engineer, I may, of course, be mistaken in my analysis. I'll wait for further clarification from Orin.
11.29.2008 9:15am
TNeloms:
I want to ask something a few of us asked in the previous thread on this subject that wasn't resolved: What were the judge's instructions to the jury?

It seems that if the judge issued the instructions suggested by the government, then the jury wouldn't have been able to issue the verdict that it did, because the "without authority" part was interpreted to have the condition that it was for the purpose of a tortious act (and the jury didn't find her guilty of the tortious act). Does that mean the judge actually interpreted the law in a harsher way than the government suggested? That accessing "without authority" *on its own* without the tortious act is a crime?
11.29.2008 9:32am
Duncan Frissell (mail):
Oops!

I was safe until the line: ever visited Alaska.

I'm out of here.
11.29.2008 10:15am
Robert Ralph Hayes (mail) (www):
Let's see if we can get all of these...Screw you guys, I'm heading to Alaska right now to start my government job, but first I need to stop at the courthouse to add "Ralph" to my middle name. Also, I hate kittens. (That should take care of the nice one.)
11.29.2008 10:47am
georgeh (mail):
There are times when the law is not the answer.
It would be far less damaging to our society for vigilantes to get a rope or to burn her out, than to establish a genuinely stupid precedent that will cause damage for generations.
11.29.2008 10:59am
David Warner:
OK,

It's good that you've finally named your terms. It is also good that you didn't name term #3 Ralph or the universe may have collapsed upon itself.
11.29.2008 11:08am
Guest102:
While researching this issue, I came across a very interesting powerpoint prepared by Joel Michael Schwarz, Department of Justice Computer Crime and Intellectual Property Section, Criminal Division http://www.secureitconf.com/OLD/2003/docs/Joel_Schwarz.ppt

During the discussion of how 18 USC 1030 applies to providers, he referenced 18 USC 2510, Wire and Electronic Communications Interception and Interception of Oral Communications.

In the notes portion of slide number 25, Mr. Scwartz made this comment:

Who is a “computer trespasser”? By statutory definition, a computer trespasser is a person who use a protected computer without authorization. Such trespassers, Congress stated, have no reasonable expectation of privacy under the Fourth Amendment to the Constitution in any communication transmitted to, through, or from the protected computer. 18 U.S.C. § 2510(21) (A). In addition, when drafting the exception, Congress did not want the provision to allow for law enforcement monitoring of a subscriber who merely violated the terms of service of his or her provider. Congress limited the definition of a “computer trespasser” such that it does not include anyone known to the provider to have an existing contractual relationship with the provider. 18 U.S.C. § 2510(21)(B).


The exact language of the statute is:

18 U.S.C. § 2510(21)(B)

(21) "computer trespasser"--

(A) means a person who accesses a protected computer without authorization and thus has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer; and

(B) does not include a person known by the owner or operator of the protected computer to have an existing contractual relationship with the owner or operator of the protected computer for access to all or part of the protected computer.


Seems to me, the operative phrase here is, "who merely violated the terms of service". Although this is not 18 USC 1030, it seems clear that a ToS was not viewed by Congress as an area where the government should exercise criminal jurisdiction.

It appears this ppt was created in Aug 2002. According to the Cornell University Law School website, the most current version of 18 USC 2510 is Jan 2007. The language of (21)(A)(B) has not changed.

The question is, have there been any court precedents prior to the Drew case that have voided this definition or am I just misapplying this expert’s opinion in this case?
11.29.2008 11:19am
JK:
Am I the only person who thinks this isn't as ridiculous as all that? Sure this probably overreaches in some ways but the general principle seems to be:

1. Websites can dictate terms of use for access/membership using whatever criteria they wish, even arbitrary or discriminatory ones (similar to a private club).

2. The legislature can decide that the most advantageous enforcement mechanism for these terms of use is the criminal law, perhaps because there will be often not be the type of damages that would make civil enforcement effective.

This seems relatively analogous to criminal trespass laws, if I don’t want people on my property with the middle name Ralph, then that’s my prerogative, and I can use the police to eject people with the middle name Ralph, and the state can prosecute people who refused to leave (even if I ejected them for a reason that you, the judge, or the rest of the world thinks is unreasonable).
11.29.2008 11:25am
Guest102:
...I can use the police to eject people with the middle name Ralph, and the state can prosecute people who refused to leave


I don't think anyone entirely disagrees with this position. The issue becomes when were they were notified their presence is a criminal act and did they refuse to comply. That is when criminal intent attaches. In the Drew case, there was no first notice they were in violation of law. It was assumed they knew despite no record of a ToS violation ever being defined as criminal. Big difference.
11.29.2008 11:35am
JohnKT (mail):
Apparently Judge Alex Kozinski of the Ninth Circuit jiggered the court computer to bypass content filters so that he could view porn. See http://tinyurl.com/5z65lg (ptr to Bloomberg news).

Now I have nothing against judges viewing porn, but surely he violated the ToS for the court computer, and criminal law must oversee private contracts even with no compelling Federal interest, right?

Somebody inform US Attorney O'Brien.
11.29.2008 11:38am
Paul A'Barge (mail):
How about if your name is Eric Holder or Marc Rich? Apparently those are the types of folks you like to promote. My guess is they'd be welcome here.
11.29.2008 12:22pm
Damn Ralph Yankee (mail):
whit:


cmon. a "but for" causation?

there is a woman who was mean to a 13 yr old girl, and said some things to her that are not at all unheard of in real relationships.

that this girl was too fragile to handle that is sad, but saying it's drew's fault is ridiculous.

and sure, people can believe (in a normative sense...) that there SHOULD be criminal liability for such conduct.

just as you can believe that a bartender who served a guy 5 drinks, and the guy went home and beat his wife , has criminal liability for the beating, because the guy wouldn't have beaten his wife if he was sober.

get real.

it is simply NOT lori drew's fault that the girl committed suicide. based on what i have read it's nobody's fault.

i realize people here are (to a large extent) lawyers, and lawyers LOVE to place blame. but in a legal sense, there is no blame.

if this girl was so frigging fragile, her next boyfriend at school could have pushed her over the edge. it wouldn't be his fault either



I certainly hope this doesn't hurt your feelings in the slightest (lest I be regarded by Prof. Kerr as not being super-nice) but this analogy fails: a bartender serving a guy 5 drinks does not constitute an intentional tort, which inflicting emotional distress does. As I recall from law school, the "thin skull rule" states that when inflicting an intentional tort, "you take your victim as you find him."
11.29.2008 1:07pm
Anonymous Ralph:
Private sector only?

The webmaster is employed by the UC Regents, no? They are not part of the private sector. Perhaps Prof. Kerr could turn in the webmaster and you two could work out an arrangement for both the prosecution and the defense.
11.29.2008 1:48pm
whit:

have no idea about criminal liability, but there are "dram shop" laws that pertain to civil liability in these sorts of situations (although not exactly in your hypothetical).



and i have said several times, i have no problem with a CIVIL lawsuit against drew. my argument is that she is absolutely not CRIMINALLY liable.
11.29.2008 1:59pm
whit:

certainly hope this doesn't hurt your feelings in the slightest (lest I be regarded by Prof. Kerr as not being super-nice) but this analogy fails: a bartender serving a guy 5 drinks does not constitute an intentional tort, which inflicting emotional distress does. As I recall from law school, the "thin skull rule" states that when inflicting an intentional tort, "you take your victim as you find him."



that's actually a very good point. i don't think there's much doubt that drew intended to make drew feel badly. iow, she wanted to make her suffer emotionally.

i am saying that doesn't make her criminally responsible for her death. big diff, so to speak.
11.29.2008 2:00pm
whit:

Are you arguing for the general proposition that no one can be at fault for the suicide of another?


no. i am arguing that clearly drew is not criminally liable for it, and that the TOS charge is a complete joke.

there are certainly cases where somebody could be civilly and/or criminally liable for somebody's suicide. in fact, many states have statutes that make it a crime to assist in somebody else's suicide fwiw.


Or is that just how you come out on the basis of the facts of the Drew case?



i'm talking about this case. drew is not criminally responsible for ANYTHING. the TOS thing is a joke, as well
11.29.2008 2:04pm
einhverfr (mail) (www):
JK Wrote:


Am I the only person who thinks this isn't as ridiculous as all that?


Unfortunately not.

Sure this probably overreaches in some ways but the general principle seems to be:

1. Websites can dictate terms of use for access/membership using whatever criteria they wish, even arbitrary or discriminatory ones (similar to a private club).

2. The legislature can decide that the most advantageous enforcement mechanism for these terms of use is the criminal law, perhaps because there will be often not be the type of damages that would make civil enforcement effective.


Ok, there are two problems here. The first is that 18 USC 1030 was intended to be equivalent to breaking into a locked building rather than merely trespassing in a shop. Secondly, while it has been applied in civil cases to include merely trespassing, this tends to have additional notice requirements strikingly absent here.


This seems relatively analogous to criminal trespass laws, if I don’t want people on my property with the middle name Ralph, then that’s my prerogative, and I can use the police to eject people with the middle name Ralph, and the state can prosecute people who refused to leave (even if I ejected them for a reason that you, the judge, or the rest of the world thinks is unreasonable).


Sure, but in this case, you have ejected them and they refused to leave. This is not analogous to the situation of Lori Drew who was never ejected. A mere violation of the terms of service by itself doesn't rise to a criminal level even under your theory unless there is some sort of unambiguous notice given to the individual that he/she is no longer welcome.
11.29.2008 2:14pm
Somone at U of M:
Is an employee of a state university that receives federal funs a "U.S. Government" employee for the purposes of these terms?
11.29.2008 3:53pm
LM (mail):
Paul A'Barge:

How about if your name is Eric Holder or Marc Rich? Apparently those are the types of folks you like to promote. My guess is they'd be welcome here.

On first read I thought this was another parody violation of OK's mock TOS. But on quick reflection, it's actually just another in an even longer line of genuinely obnoxious comments.
11.29.2008 9:58pm
Edmund in Tokyo (mail) (www):
While we're on the subject, I hope everybody's remembered to file the appropriate legal affidavit if they've ever visited Instapundit:

http://pajamasmedia.com/instapundit/terms-of-use/
11.30.2008 5:36am
TokyoTom (mail):
Orin, didn`t you mean to add that, if anyone violates the Terms of Use and it comes to your attention, you will be emotionally distressed?
11.30.2008 9:20am
ReaderY:
It should be noted that the jury didn't convict on any of the charges that involved intent to harm another. It only convict on unauthorized use. Since there was a reasonable doubt that Mrs. Drew intended to cause harm, this case doesn't involve that element. It just involves violation of terms of use. That's why Professor Kerr's intentionally rediculous terms of use are more applicable to this situation than it might seem at first glance.
11.30.2008 9:38am
ReaderY:
It would seem the rule of lenity would favor Drew.

In addition, I honestly don't understand how a void-for-vagueness challenge can be avoided absent proof of notice. The law presumes that people know the law without having to have any specific notice. But this presumption doesn't apply to a private party's private terms. Perhaps the law could require that terms published in a specific location and manner, but this law doesn't seem to do that.

Criminal trespass requires proof of specific notice.
11.30.2008 10:10am
Postmaster Ralph from Alaska:
F. U.
11.30.2008 10:38am
Guest102:
This case seems to cause me more questions every day.

The servers and system in question in the Drew case are owned and operated solely by Myspace. Am I to understand that Myspace recognized the violation of the ToS, approached the AUSA and swore out a criminal complaint against Drew for gaining unauthorized access to their system?

Or, did the AUSA devise the charges, put the prosecution into motion, approach Myspace with the previously unknown concept of prosecuting a ToS violation and convince Myspace it was in their best interests to cooperate?

Will Myspace now refer all ToS violations to the AUSA for prosecution or just cherry pick those they find behaving in an unpopular manner or perhaps those that share a different political opinion?

Now that a ToS is a legally binding document, with attached criminal penalties, will all providers utilizing a ToS now be mandated, by law, to immediately notify those they have entered into a contractual agreement with when the ToS has changed and provide the customer the opportunity to comply or terminate? Will there need to be a legal requirement for a positive acknowledgement of acceptance or is continued access sufficient?

Will providers now be responsible for referring all ToS violations for prosecution or will the government have the ability to selectively prosecute those they find in violation? Will they be able to do this if the provider refuses to cooperate?

(This one will make your head hurt) Does Drew have a civil action against Myspace for failing to notify her that a simple ToS violation can result in criminal prosecution and conviction? Does the suicide victim's mother have a civil action against Myspace because they didn't exercise due care in verifying compliance and identity? Can she if she knowingly violated the ToS in establishing her daughter's unlawful account? (BTW, the age for access is now 13 in the new ToS)

In Snow vs. DirecTV, 04-00515-CV-FTM-33-SPC, July 2006, in an action brought in violation of the Stored Communications Act (SCA), the 11th Circuit Court of Appeals had this to say about a ToS agreement:

"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. Thus, the requirement that the electronic communication not be readily accessible by the general public is material and essential to recovery under the SCA."


They went on to state:

"Snow’s allegations describe, in essence, a self-screening methodology by which those who are not the website’s intended users would voluntarily excuse themselves. Because this is insufficient to draw an inference that the website is not readily accessible to the general public, Snow’s complaint fails to state a cause of action and it was proper to dismiss it."


This opinion states clearly that ignoring an express warning on a website to gain access is not a criminally actionable offense. Under the Drew precedent, this action is now a criminal unauthorized access. It is my understanding that the standard for "readily accessible by the general public" is broadly defined. Literally, if you do not limit access by non-arbitrary standards and have a validation process to enforce that, it is publicly accessible. In other words, as in Snow vs. DirecTV, you cannot limit access with arbitrary conditions if it is not a closed access system. (Sorry Orin, the 11th Circuit disagrees with your new access policy)

The standard ToS is very clear that termination of an account is the sole penalty for violation. If not, the penalties for violation must be clearly stated. I can't envision these social websites embracing these new standards. It would be the kiss of death if customers began to fear arbitrary criminal liability for simple mistakes, misstatements or behaviors they thought would result in mere termination. Loss of members then translates into loss of advertisers and revenue. Not to mention the legal overhead and liability that will accompany this new standard.
11.30.2008 11:45am
John Ralph Henry II:
The standard ToS is very clear that termination of an account is the sole penalty for violation.


I don't think that's accurate.

First, I don't believe there's such a beast as a “standard ToS”. If you want to present a form and call it “standard” then I'd be interested to see some evidence that that form has been widely adopted. Until then, I'll apply my own experience, unscientific as it may be.

Second, to the extent there are common themes running through the various ToS drafted by creative lawyers: Most ToS limit the liability of the company providing service. They rarely, if ever, limit the liability of the consumer. In fact, I've heard specific advice not to limit the consumer's liability.

A ToS is an opening salvo in potential litigation. The party drafting it usually doesn't have any incentive to pull their punches. So they don't.
11.30.2008 1:08pm
David Schwartz (mail):
I don't think any reasonable person would understand a typical ToS, and that definitely includes the MySpace ToS at issue, as limiting their authorized access. Simply put, it is not, as far as I know, anyone's practice to set out the scope of authorized access in a ToS. The purpose of the ToS is to set out the terms by which they wish you to behave, and for which you may be subject to a series of administrative punishments possibly ratcheting up to banishment.

I think most people who even laugh at civil enforcement of a ToS, absent some pretty extreme conduct. For example, signing back on under fake names after being banished or repeated behavior after being asked to stop.
11.30.2008 4:27pm
einhverfr (mail) (www):
So here is a fun question:

In some states, judges have held arbitration-only clauses to be unenforcible on the basis that having them in an adherence contract is unconscionable.

However, based on the Drew case, if one sues, say, Second Life, and then logs back in, even if the lawsuit can go forward because the relevant portion of the terms of service are problematic, does this still make one guilty of a misdemeanor?
11.30.2008 7:00pm
einhverfr (mail) (www):
further does this mean that one could ask for criminal sanctions for suing the owner of a site which has an arbitration clause?
11.30.2008 7:06pm
zurk:
hard cases make bad law.
i wish idiots (aka general public sitting on juries) would remember this simple concept.
11.30.2008 9:00pm
JK:
einhverfr,

Sure, but in this case, you have ejected them and they refused to leave. This is not analogous to the situation of Lori Drew who was never ejected. A mere violation of the terms of service by itself doesn't rise to a criminal level even under your theory unless there is some sort of unambiguous notice given to the individual that he/she is no longer welcome.


Thanks for the clarification, that was what I was looking for, but I'm still not sure I think this prosecution is obviously rediculous, rather than arguably bad policy. Would it make a difference to you if myspace send out a weekly email to all their members that if they are using the site in violation of the ToS that they are requesting them to stop?

Notice only strikes me as as a critical element (normatively, not in fact) if there is serious reason to doubt that the person in fact knew the rules AND there is no reasonably easy way for them to access the rules. Drew knew or should have known that assuming a false ID and harrasment at least might very well be barred by myspaces ToS, and she should have checked the rules.

I'm surprised that commentors here are so unconcerned with the rights of private web site operators to make and enforce their own terms of use no mater how arbitrary they are. I guess if people use their own property in an unreasonably way it is now VC's position that their property rights should not be enforced.
11.30.2008 10:47pm
einhverfr (mail) (www):
I have a few suggestions to further your terms of use:


1. You will not post comments that are abusive, profane, or irrelevant. Civil and relevant comments only, as indicated by our comment policy.


I suggest you change this to:
You will not post comments that are abusive, profane, irrelevant, and the like. "And the like" is great or adding vagueness and giving you the ability to declare violations simply because you want to :-).


2. You are not an employee of the U.S. government. Yes, that includes postal service employees, law clerks, judges, and interns. We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out.


How about changing this to:


2. You are not an employee of the US state or federal governments. Yes, that includes postal service employees, law clerks, judges, and interns. We're a libertarian-leaning blog, and we're for the private sector only. Government types, keep out. Note that we make exception for employees of public education facilities and the like, so some of you may be authorized after all.



3. Your middle name is not "Ralph."


How about: "Your middle name is or is not similar to Ralph. That includes Rolf, Hrolf, and the like."


4. You're super nice. We have strict civility rules here, and this blog is only for people who are super nice. If you are not super nice, as judged by me, your visit to this blog is unauthorized..


The above provision is sufficiently vague that it needs no improvement.
11.30.2008 11:07pm
whit:
jk, the rules in cyberspace should be roughly the same as the rules in the 'real world'.

i've already given examples. i investigate trespass and other sorts of complaints frequently. prior notice is explicity required UNLESS the trespass is the sort where it's obviously illegal to be where you are at all.

assume walmart has a TOS (so to speak) that you must wear shoes in the store. and even a sign clearly stating that. if a cop sees you in walmart, he cannot charge you with trespass. (which is analogous to this case).

a walmart employee walks up to you and tells you to leave cause you have no shoes and you leave. no crime. no problem.

he tells you to leave and you say "call the cops." and peacably sit down and wait for the cops. in every case i am aware of cop is going to tell you to leave (as agent of the owner) and THEN if you refuse, you get arrested.

or when you are officially trespassed, you are issued written notice. then, you return after notice. arrest.

the only time trespass is charged w/o notice would be a place example. for example, you are in walmart, and you see an office, with a closed door, and it says "employees only". and you walk in the office and start rummaging around a desk.

ThAT could get you summarily arrested. that is analogous to crimes such as computer trespass.

nearly every business has rules for customers (or members.)

in no case i am aware of has anybody been arrested for violating a workplace rule. despite what you say in the last paragraph, nobody is claiming private web site operators (whether a commercial business like myspace or a personal blog) don't have the right to restrict access or enforce TOS.

what is at issue is the right of the govt. to step in and prosecute a user for violating some website's TOS, without sufficient notice of expulsion from the website etc.

TOS/Rules can be arbitrary. i once lifted at a gym that had a "No deadlift rule". that's absurd and arbitrary, but that was their rule. if i started deadlifting, the cops could not summarily arrest me. the gym, otoh, could expel me, and if i resisted and persisted in not leaving, i could be arrested for trespass.
11.30.2008 11:17pm
John Ralph Henry II:
I have a few suggestions to further your terms of use...


(These sample clauses are provided for educational use only. Consult an attorney licensed to practice in your jurisdiction before settling on any contractual terms.)


THIS WEBSITE ("THE SERVICE") IS PROVIDED "AS IS". THERE IS NO WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

YOU ASSUME ALL RISKS OF LOSS OR DAMAGE CAUSED BY THE SERVICE, EVEN WHEN THE OPERATORS OF THE SERVICE HAVE BEEN NOTIFIED OF SUCH RISK. YOU AGREE TO INDEMNIFY THE OPERATORS OF THE SERVICE AND HOLD THEM HARMLESS AGAINST ANY SUCH LOSS OR DAMAGE.

THE SERVICE MAY MODIFIED OR DISCONTINUED AT ANY TIME WITHOUT FURTHER NOTICE.

THE OPERATORS OF THE SERVICE RESERVE THE RIGHT, IN THEIR SOLE DISCRETION, TO DETERMINE WHAT CONSTITUTES ACCEPTABLE USE OF THE SERVICE.

THESE TERMS OF SERVICE MAY BE MODIFIED AT ANY TIME WITHOUT FURTHER NOTICE. PRIOR TO EACH USE OF THE SERVICE, YOU MUST REVIEW THESE TERMS FOR ANY CHANGES.
12.1.2008 12:15am
Tammy Cravit (mail):
David Schwartz wrote:

I don't think any reasonable person would understand a typical ToS, and that definitely includes the MySpace ToS at issue, as limiting their authorized access.


I would go one step further and say I'm not sure any reasonable person could be expected to understand a typical ToS, period. Though I'm not (yet) a lawyer (applying to law school next year, knock wood), I consider myself reasonably educated about the law, and it seems to me that ToS agreements are too often deliberately written to be as dense and unreadable as possible. The present version of the MySpace ToS, for example, is 4,335 words long, not counting the Privacy Policy (another 2,305 words) which is incorporated by reference.

Apart from the question of whether Drew read the ToS or not, I consider it unlikely that the typical MySpace user could, or would take the time to, fully understand what they're agreeing to when they click the sign-up button. In the context of a civil tort, one would argue that the doctrine about unilateral mistakes would apply, but that doesn't change the fact that ToS agreements seem purposefully written to not be comprehensible to those who are being asked to agree to them.
12.1.2008 1:39am
Tim (mail):
If I was born in Alaska and left after 6 months, did I really "visit"?
12.1.2008 11:35am
Inane (mail):
Whit : I guess I fail to see the difference between the front door saying 'No shirt, No shoes, No Service' and the inside door saying 'Employees Only'.

Suppose the inside door read 'Employees only, and people named Ralph', and you Whit were found within?


To my thoughts, the TOS is that inside door, and I agree that the law makes nearly every computer user a criminal.
12.1.2008 12:57pm
whit:

Whit : I guess I fail to see the difference between the front door saying 'No shirt, No shoes, No Service' and the inside door saying 'Employees Only'.




well, it makes all the difference in the world, IN the real wor ld, as i can state from training and experience.

one is trespass (assuming there is sufficient evidence that the person KNOWINGLY entered the off-limits area), one isn't . period.

it's as simple as this. entering a business (note that businesses are designed/their purpose is to have people enter ... and subsequently do business) in violation of the rules is NOT trespassing.

as to your example, that would probably be taken by everybody present (and the law) as a joke. let's deal with reality, not silly hypotheticals.

TOS' are almsot exactly analogous to rules like shoes required, no deadlifting, etc.

violating them is NOT a crime, and certainly not trespass.

there is nothing special about the internet and TOS vs. rules for brick and mortar businesses.
12.1.2008 2:54pm
Guest102:
I find it interesting that the prosecutor relied solely on civil cases to support his criminal indictment regarding the 18 USC 1030 aspects.

Calyon v. Mizuho Sec. USA, Inc.
Calence LLC v. Dimension Data
Ticketmaster LLC v. RMG Tech., Inc.
Hewlett-Packard Co. v. Byd:Sign, Inc.
America Online, Inc. v. LCGM, Inc.
Hotmail Corp. v. Van$ Money Pie, Inc.

In each case, some type of fraud, malicious intent or harm was alleged as supporting the accusations and nowhere did the government feel the need to criminally prosecute any violation of 18 USC 1030. There were no cites for criminal violations of 18 USC 1030(A)(2)(C) at all.

Although in the above cases the courts seem to lean towards the ToS as a legally binding contract, the prevailing term for violation is, "breach of contract". This is a civil term that requires a civil remedy. Since the remedy in the typical ToS is normally stated as termination of services and the discontinuation of the relationship, the remedy is understood and accepted. You assume the risk and accept.

It's simple. When I click "Agree", that includes the agreed upon course of action if I violate our agreement. Seems to me, a contract must be binding on both parties to be enforceable. Nowhere, in any ToS I've read, does it state, "Access to our services in violation of this agreement constitutes unauthorized access and is punishable under 18 USC 1030(A)(2)(C)". That is clear and unambiguous and I would sooner cut off my hand than click "agree". I would not subject myself to that kind of liability to simply visit a website. They would just not get my business. (Which probably explains their reluctance to be unambiguous)

IMHO, if the website has, as its method, an automated approval process upon clicking "Agree", access is approved and granted. If the provider makes no affirmative effort to validate the identity of the requestor, he assumes some of the risk for allowing that access. Enough risk, I believe, to require a civil remedy (as stated in the ToS) as opposed to criminal.

GMail is an interesting example. To create a new email account, they require no information beyond a name. No mandatory fields requiring a telephone number, address, state, even your country of origin let alone asking for some kind of legal ID number. The only (albeit remote) proof of identity would be your IP address. If you were using a dynamic IP assignment or an anonymous IP, (so far still legal) they wouldn't even have that beyond the retention dates of your internet provider. I can't believe their only argument would be they have your real name. If your real name is John Smith, what good would that do them?

To further rant, if I wave to a perfect stranger and invite him into my house contingent on him providing his real name, and he lies, his presence is still my responsibility because I didn't ask for proof of identification. If I discover his lie and I call the police to have him arrested, the police are going to laugh at me for being stupid. I can still remedy the situation by revoking his invitation and asking the police to order him off the property. They will, acting as the agent of the landowner, but they cannot make an arrest until he refuses.

The prosecutor in the Drew case is stating that computer trespass requires none of these notices or safeguards simply because it's a website or service you've been given access to, not real property. A standard that does not apply to any non-virtual circumstance.
12.1.2008 4:43pm
Inane (mail):
Well... lets make it a bit more concrete, since you can't seem to think in hypotheticals.


A VIP lounge within a larger club that is clearly marked 'Members Only', and a non-member is found within.

A gym where only members are permited, same scenario.

Any of these trespass? To my thoughts, they're quite similar to your 'employee's only' sign.
12.3.2008 2:12pm
Jonathan Abolins (mail) (www):
Prof. Kerr,
Thank you for posting the new ToS. Quite fascinating.
Will there be a link to the ToS in the top of the blog along the the E-mail Policy link?

An interesting test would be to take the Web server logs, get the visitor IP addresses since 28 Nov 2008, and get the domains associated with many of them. Look for .gov, .mil, and many of the .us ones. (Because the ToS specifies US govt., the test wouldn't need to look at non-US government domains such as .gov.uk, .gov.il, etc.) Many of those hits would represent government employees visiting from government workplace systems.

By the way, the ToS reminded me of a ToS the Phrack phone phreaking/ computer hacking zine had for a while in the 1990s. It was free for everybody except governmental types and security professionals. Those people had to pay a $100 fee. (I paid it.) Hmmm, maybe the Volokh Conspiracy would do better to have a fee instead of prohibition for government types. Then see who pays.

Finally, I wish you well in the appeal. The criminalisation of ToS breaches is a big hazard for researchers like me, journalists, and others. A bad precedent could even be extended to access that avoids ToS, methods such as using Google cache and Archive.org's Wayback Machine.
12.3.2008 11:13pm
A Law Unto Himself:
But Drew did not create the account.

Drew did not click to accept the Terms of Service.

Drew (arguably) did not type the messages.

How the (heck???, trying to be super nice but yet include an emotive outburst) can she be guilty of unauthorized access?
12.5.2008 5:12pm

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