Lori Drew case raises profile of "terms of service" agreements
(St. Louis Post-Dispatch Via Acquire Media NewsEdge) Nov. 30--Next time you install a piece of software or visit a new website, pour yourself a cup of coffee and really dig into that arcane document labeled something along the lines of "terms of service."
It's your chance to do something few have ever done.
These are the agreements that govern our relationships with virtually every company doing business on the Internet. They lay down the rules that users agree to follow. They say what can and cannot be done.
But for the most part, those rules exist in relative obscurity, ignored by users who never give them a second thought.
At least, that was the case until a Los Angeles grand jury decided to indict Lori Drew on charges stemming from allegations that she violated rules set down by the social networking site MySpace.
Drew, 49, of O'Fallon, Mo., was convicted Wednesday on three misdemeanor counts of accessing a computer without authorization for her role in the creation of a fake MySpace account that was used to harass Megan Meier, 13, of Dardenne Prairie. The jurors rejected more serious felony charges and were unable to reach a decision on a conspiracy charge.
Prosecutors said Drew, her teenage daughter and Drew's former employee created the fake account and pretended to be a 16-year-old boy named Josh Evans. Megan hanged herself in October 2006 after a heated exchange with the fictional Josh.
As far as MySpace was concerned, the account never should have been created. The site's "terms & conditions" agreement prohibits users from creating fictional accounts, using others' pictures without permission and harassing other users. Witnesses said that Drew never read the terms, but prosecutors said that she should have known she was breaking at least some MySpace rules and possibly violating the law.
Of course, as most users know, it's a rule that's routinely violated. Jae Sung, a vice president of customer care at MySpace, testified during the Drew trial that MySpace has roughly 100 million unique members and at least 400 million profiles. He said that there was no way to know how many profiles were created in violation of the rules.
That MySpace does little to police fake accounts demonstrates an important aspect of service agreements. They don't generally obligate a company to do anything, but they do preserve its right to take action if it wants to.
"Basically, they are written to protect the companies you are dealing with," said Greg Lastowka, an associate professor at the Rutgers School of Law.
And as far as the legal system is concerned, these "terms of service" agreements count as binding contracts. Once you click the "accept" button, you have agreed to what's in there, whether you read it or not. In many instances, legal experts say, you don't even have to acknowledge your acceptance. Merely using a site such as ESPN.com, for example, signifies that you accept the site's terms.
These types of contracts aren't new. It's just that they are more prevalent today, with so much of our world's information, entertainment and interaction moving to the Internet.
"This is just a new version of an old problem," said Michael Carroll, visiting professor of law at American University's Washington College of Law. "Every time you go to a ball game, believe it or not, there is a little contract on the back of the ticket."
Legal experts advise against agreeing to any contract without first reading it. But those same legal experts also admit that they don't spend much time poring over "terms of service" agreements.
And considering these things usually are filled with dense, legal jargon, the average person wouldn't gain much of an understanding of what they've agreed to, even if they did read one, said Catherine Dwyer, a computer science professor at Pace University in New York.
"Could you imagine if the instructions for your GPS (device) were that obscure? You'd never get anywhere," Dwyer said.
In truth, most of what's found in "terms of service" agreements is fairly mundane. Google users, for example, agree not to hold the company responsible for any "offensive, indecent or objectionable" content they come across while using the search engine.
Still, it's not unusual to find provisions that do matter:
-- Players of the popular online role playing game World of Warcraft promise not to sell any of their virtual property for real money. That gives the game's owner, Blizzard Entertainment, the right to fight a growing problem for online gaming -- a worldwide industry built around the buying and selling of virtual game items. Violators can be banned from the game.
-- MySpace users agree that the social networking site has the final say on deciding whether content posted by users violates a long list of regulations contained in the agreement. Also included is a rule against posting a photo of another person without his or her consent.
-- PayPal users agree that any lawsuit against the Internet-based payment service will be filed in Santa Clara, Calif., or Omaha, Neb.
Of course, few people will ever find themselves at odds with a company's terms of service. That's one of the reasons people like Bill Sachs, a computer programmer from Pacific, have no qualms about checking the "I agree" box.
"I know this sounds stupid," Sachs said. "But I guess I'm trusting that they're not putting anything in there like me turning over all of my future earnings."
Could they even do something like that? Could everyone's favorite search engine, for example, require you to name your next child "Google"?
Not likely. Regardless of what you agree to, legal experts say the courts will intercede if any particular contract provision is deemed to be unreasonable.
That's what happened to PayPal in 2002, when a judge ruled against a provision in the company's terms requiring arbitration to be handled in Santa Clara, regardless of where the customer lived. The judge said it was unreasonable to require customers to travel long distances for relatively small disputes -- the average PayPal transaction at the time was estimated at $55.
Companies also have been forced to change course regardless of whether they had the right to do something. Such was the case last year, when Facebook launched Beacon, a service that informed friends about each other's buying habits.
"As far as Facebook was concerned, they were just following the terms of service that everyone had agreed to," said Lastowka, the Rutgers professor who is writing a book on virtual law.
But users and privacy advocates were outraged, with more than 75,000 joining an anti-Beacon group. Eventually, the company relented and changed the program so that users had to opt in to participate in Beacon, rather than opt out to be left alone.
The question now is whether the Drew case will change the way people treat terms-of-service agreements.
Federal prosecutors in St. Louis looked at the Drew case and declined to file any charges, saying they could find no law that applied.
Drew lawyer H. Dean Steward has filed a motion to dismiss the case, arguing repeatedly that prosecutors in Los Angeles over-reached and that Drew could only be prosecuted if she both read MySpace's terms and knowingly and intentionally violated them. U.S. District Judge George H. Wu has appeared to lean towards granting that motion in court, although he has declined prior chances to do so. Steward also has filed a motion for a new trial, which could lead to a federal appeals court tossing out the case.
Internet experts have expressed concern that the case, if successful, could have a chilling effect on a medium where anonymity is part of the landscape. But it also may prompt some people to give a little more thought before clicking "Yes."
Annette Carr, of East Alton, said she generally ignores those agreements, figuring she isn't planning to do anything illegal or immoral. Now she wonders if it's such a great idea to be too trusting.
"The whole thing has made me think maybe that's not so smart," Carr said.
Robert Patrick of the Post-Dispatch contributed to this report.
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