Juror in Drew case: People should be held liable for breaking website terms of service

Kim Zetter at Threat Level spoke the jury forewoman who helped convict Lori Drew. The picture that emerges is of a panel unwilling to apply the original felony counts due to lack of evidence. However, they had no reservations about using anti-hacking statutes to criminalize breaking a website’s terms of service.

“I always read the terms of service,” Valentina Kunasz told Threat Level. “If you choose to be lazy and not go though that entire agreement or contract of agreement then absolutely you should be held liable.”

Drew created a sockpuppet account on MySpace with the intention of humiliating Megan Meier, a troubled youngster who had fallen out with Drew’s own daughter. Meyer killed herself after receiving a message from the account that said the world would be a better place without her.

Unable to apply normal harassment laws to the internet, local prosecutors could not proceed against Drew, leading those in California, where MySpace is located, to challenge her using a computer security law. Though Drew’s callous behavior lent her few defenders, many voiced concerns about a judgment that could make internet anonymity a crime.

Do you find and read the terms of service of every website you visit? I’ve never even read our own!

Jurors Wanted to Convict Lori Drew of Felonies but Were Stymied by Prosecutors [Threat Level]

About Rob Beschizza

Rob Beschizza is the Managing Editor of Boing Boing. He's @beschizza on Twitter and can be found on Facebook too. Email is dead, but you can try your luck at besc...@gmail.com
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15 Responses to Juror in Drew case: People should be held liable for breaking website terms of service

  1. Banksynergy says:

    I can imagine that it’s possible that she reads every TOA/TOS that comes up if she’s not a frequent internet user. But, then there are the agreements we take part in just by visiting sites and the fine-print at the bottom of some sites, and I find it very hard to believe she reads all that stuff, which makes her a liar =P

    It came up in conversation just the other day that I refuse to believe there is anyone who plays World of Warcraft who has read every agreement, because they bring one or two big scroll-boxes of text to agree to up every time they patch. Much less Warhammer: Age of Reckoning where they make you agree to the seemingly infinite fine-print EVERY time you log in.

  2. Chrs says:

    This is almost certainly due to ignorance. She’s probably only thinking of social networking sites, and doesn’t realize how many TOS versions she’s agreeing to simply by visiting sites with a small link at the bottom of the page. Most people aren’t. That’s a problem.

  3. Felix Mitchell says:

    Surely breaking TOS is breach of contract and has nothing to do with anything criminal? It’d be up to MySpace to sue for damages. Normal procedure for breaking social network TOS is account termination, and I can’t see MySpace being able to do much more than that. Also, since they’re owned by News Corp they wouldn’t want to get into this risky shit throwing anyway.

  4. bardfinn says:

    IANAL. This is not legal advice.

    My view is thus:

    The TOS of a website are an un-negotiated boilerplate contract, and as far as I am concerned they’re merely a way to make a public notice of which terms they’ll abide by to provide or refuse me service. If they provide me with service without putting the TOS in my face and making me click “I agree” on first instance (as well as each and every time they change it), they’re not performing due diligence – and not acting to enforce the contract. It’s a contract of adhesion – I can’t negotiate it, and if they give me a choice to access content / services with or without agreeing to their restrictive TOS, I will choose the route without. It is their onus to determine that they will no longer allow me access to the service and their actions in such a case are limited to denying me access to the service.

    If they require the TOS, I make a decision: Are the goods / services provided by this website more valuable to me than the time I am going to invest in reading and comprehending this TOS? If so, I do read it – carefully – and abide by it in good faith.

    There’s not a lot of websites that offer such a valuable service that they can overcome the barrier of cost of due diligence on my part.

  5. bardfinn says:

    To make that a bit clearer:

    I work with computers all day, every day, performing automated data processing.

    There is a tenet of US copyright law and theory that states that machines cannot commit copyright infringement – they lack agency and the ability to consent.

    If a website makes their content freely available to the Internet but they post some non-machine-readable disclaimer that states that by accessing the website / service / content that “I” am agreeing to their TOS – Well, tough cookies, $cut_and_paste_legal_department. Prove in a court of law that a human directed the access of that content and that it wasn’t automated. TOS aren’t enforceable against machines.

    No court of law can tell the difference between a human reader and a scraperbot, and very few between a sufficiently handicapped human and a chatbot.

    Put the TOS in my face, make me derive a CAPTCHA answer or two, and to click a checkbox that states that I am agreeing to a contract, and no amount of automated processing of /that/ interface on my (hypothetical) part can escape the fact that I (hypothetically) was inherently directing a piece of technology with my own (hypothetical) intent to agree to a contract.

  6. Anonymous says:

    I wonder if the forewoman had to park in a private parking garage at the courthouse? If so did she bother to read the agreement that is printed on the back of the parking ticket? If not then just by serving on the jury she has proven herself a hypocrite.

  7. pauldrye says:

    That quote from Ms. Kunasz sounds like a challenge to find instances where she’s been careless with TOS. And then point them out repeatedly in the media.

  8. Enochrewt says:

    The last TOS I tried to read was the Xbox 360′s NXE update. I made it about half way through, even though I was very interested in what they were trying to say, and what they changed. After the 10th page or so I gave up.

  9. zenbeatnik says:

    I think we should all print out our EULAs, from whatever web site, software license, stupid-ray disc, or whatever, strike out the parts we don’t like, sign it, and send it back to the company.

    If we ALL do that, maybe they’ll get the hint.

  10. bjacques says:

    I think it will be galling enough for her to see Drew walk, which seems likely according to the last paragraph.

    If the judge has *any* discretion at all, then a jury foreman stupidly saying she voted guilty because she wanted Drew to do hard time won’t help the prosecution very much.

    Solution: write harassment laws that better fit the situation.

  11. DragonVPM says:

    I call BS on the forewoman. I’d be curious to have them actually quiz her on basics from any of the accounts she has on various websites (assuming she has any). I seriously doubt she’s really read and understood every single TOS that she’s ever agreed to (or that she’s up to date on all of them since many seem to have the convenient “we can change the terms of the TOS and it’s up to you to check on it from time to time”).

    I’d say her statement/attitude clearly shows how little grasp she has on the actual material in question. Anyone who has actually tried to read and understand all the details from TOS agreements from multiple sources knows that it’s a fairly challenging task and you could easily spend quite some time doing so.

  12. Garr says:

    … it’s a fairly challenging task and you could easily spend quite some time doing so. – DRAGONVPM

    In fact, most of the time you’d have to consult a lawyer who understands and speaks jur-english, or law-speak, to understand what your consenting to.
    It’s all just a big farce to move liability from the service provider to the user, who doesn’t really have a choice.

  13. harangutan says:

    As a UK cit, the most interesting thing to me is that you can legally question a jury foreman. Our Contempt of Court Act 1981 prohibits any research into jury deliberations. God knows what we’d find if the ban was lifted…

  14. harangutan says:

    Oh yeah, and the possibility that Drew’s actions could constitute the offence of ‘aiding, abetting, counselling or procuring suicide’ in terms of the (English) Suicide Act 1961.

  15. arkansas says:

    That’s why I only read TOS when I’m drunk. The contract is unenforceable. Yes, I have witnesses — Bud, Jack, and Johnny W.

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