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.

Bitter, table of one?

(Uh, oh, I think I'm in trouble!)

F*ck that Sh&t.

Well, at least it's not my middle name!

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.

You forgot:

These may be changed without notice at any time.

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.

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.

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'

[reviewing]

Does changing planes in Alaska count?

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?

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.

Orin!

you forgot to add the obligatory, "If you fit within these categories, this blog would be better off without you".

Thank goodness these terms don't apply to conspirators.

JHA

When is Mrs. Meier going to be prosecuted for letting someone under the age of 14 access MySpace? That violated the MySpace TOS.

Orin, you are a blogger a commenter would kill him/herself over.

/I'll take a window seat on the train to hell

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.

Your TOS prohibit people who have visited Alaska. But what if I live there ... and hate it?

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?

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."

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)

Oh look! Bubbles!

You found her? Yay!

Hmmmm.... I note that none of your terms exclude Sarah Palin from posting here.....

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).

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!

Some of my best friends are named "Ralph," but in all truth I hope my sister doesn't marry one.

Do you mean the country Alaska, or the whole continent?

But would you then defend (pro bono) said violator against the government prosecution?

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.

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."

But so many colleges, universities and states receive so many federal monies...

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

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.

Does #3 apply doubly to ridiculously pretentious pronunciation of said name?

OK,

You can take the VC from me when you pry it from my cold, dead keyboard.

It strikes me that folks working for the government could use Volokh the most.

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 ;-)

Alaska is the only state I've never been to. Awesome!

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.

"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...

Aw, nuts. Sarcastro wins again!

"FARKers?" Just had to ask my son to define that. He will be laughing for hours. I feel old...

Bill McGonigle:

You probably have a point but terms of service don't apply to the proprietors. :-)

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.

whit-- that is fairly close to my point. That is an excellent post and well-thought-out.

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....

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.

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.

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.

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.

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.

I think a link to Conrad Black's description of America's prosecutocracy is appropriate here.

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

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.

Jef Raskin (started Apple's Macintosh computer project) saw this coming a decade ago. The Sponge

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."

(Sarcastro should not be required to pay)

Sarcastro's first name is Ralph?

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.

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.

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.

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

So with Ralph not allowed does that apply to residents of Dusseldorf as well?

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

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).

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.

Oops!

I was safe until the line: ever visited Alaska.

I'm out of here.

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.

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?

...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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

further does this mean that one could ask for criminal sanctions for suing the owner of a site which has an arbitration clause?

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.

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.

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.

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.

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.

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.