Sunday, 5 July 2009

Criminalising a breach of TOS

Lori Drew's conviction was overturned by a Federal court judge on July 2nd, but this is not the end of the matter yet as the prosecution may be considering an appeal. Drew was convicted by the jury in a trail for her part in causing the death of 13 year old Megan Meier. The charges were that Drew conspired with several other to set up a bogus MySpace account to lure Megan into an online relationship. A post telling Megan that the world would be a better place without her led to Megan taking her own life.

The case raises a number of interesting legal issues but the one that interests me is the creative argument used by the prosecutor of Drew's abuse of MySpace terms of use, as a basis for a charge under criminal laws drafted to regulate anti-hacking activities. A number of experts have exclaimed surprise and predicted that that the charges would not stick and they were right.

The judge said that the arguement basically "criminalises what would be a breach of contract" and I think that's right. The burden of proof for a criminal charge is higher than that for a civil claim and the reasons for that are sound. The line between criminal and civil wrongs should be a clear one and the charges, however, novel, should not have been brought in the first place.

While we're on the issue of breach of terms of use, did anyone below legal age bother to read Gmail's terms of service which stipulates that it is breach of its terms sign up for a Gmail account if you are not of legal age. Clause 2.3 of the Terms of Service state:

2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Google, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services.

I'm not sure how Google sets out to enforce that particular term as there really isn't any reliable mechanism (read: program, software, app. etc) to verify age online.

If Drew's conviction was upheld, there would be many people, especially those under legal age to enter into a contract, would have been potentially liable for similar charges Drew faced.


Theo Kapa said...

Criminalising a breach of TOS (or at least trying to do so) is what you get when there is no statute against cyber bullying. It seems however that the Drew case triggered some activity towards the introduction of new laws in the US in response to this relatively new crime.

As far as the online age verification issue is concerned, I guess that that e-signatures could -theoretically speaking- be a solution. However, I strongly doubt it, if this would be the most efficient one.

JustdoIT said...

While there have been new legislation passed to counter cyberbullying these appear to be a knee-jerk reaction. As far as I know, laws have not been passed to specifically control bullying as a crime, although there are laws against harassment.

If it has not been legislated in the physical world, it would be harder in cyberspace.

clarinette said...

Interesting issue, the respect of website's TOU/TOS and Cyberbullying. I suggest to have a look at 'The Progress & Freedom Foundation - Lori Drew Acquitted in Megan Meier Case: What to Do About Cyberbullying?' on how against Cyberbullying Legislation, Education can be Preferable to Regulation.
Also, this is, as far as I Know, the first case with felony cyberbullying under the law passed in Missouri after the suicide of Megan Meierafter reported by CBSNews "Mo. Woman Charged with Cyberbullying Teen".
The first UK case reported by The Guardian, concerns an 18-year-old "sentenced to three months in a young offenders' institution" after posting death threats in Facebook. She "had been victimized for four years [by Houghton], the court heard, and had previously suffered a physical assault as well as damage to her home." Here's a coverage from the Times Online and the BBC.
Finally, the case of a blogger, Rosemary Port who blamed a model, Liskula Cohen, for 'skank' stink, pose the question of anonymity on the Internet when defamation involved.
See also my developments on IP address and privacy :
Coming back to the importance of the respect of TOU/TOS of websites, the question of how they are altered without users' knowledge raises doubt about the enforceability of clauses against users.