Adventures in Ethics and Science

And you’re really a lawyer?

The verdict came back in the Los Angeles trial of Lori Drew, the Missouri mother who facilitated cyberbullying of a former friend of her daughter, who subsequently committed suicide. Since cyberbulling isn’t an easy crime to prosecute, the trial focused on whether, in setting up a fake MySpace page as a 16-year-old boy (whose online identity was used to befriend and then harass the girl who killed herself), Drew violated MySpace terms of service.

So, here’s the legal point- counterpoint, as reported by the Associated Press:

Among other things, Drew was charged with conspiring to violate the fine print in MySpace’s terms-of-service agreement, which prohibits the use of phony names and harassment of other MySpace members.

“The rules are fairly simple,” federal prosecutor Mark Krause said. “You don’t lie. You don’t pretend to be someone else. You don’t use the site to harass others. They harassed Megan Meier.”

Drew’s lawyer, Dean Steward, contended his client had little to do with the content of the messages and was not at home when the final one was sent. Steward also argued that nobody reads the fine print on service agreements.

“How can you violate something when you haven’t even read it?” Steward asked. “End of case.”

Am I wrong, or is Dean Steward claiming here that there’s nothing wrong with checking the box saying you’ve read and agree to the terms of service when you haven’t read them (and thus might not agree with them)?

Really?

Could I weasel out of all sorts of other inconvenient contracts by simply not reading them before I sign on the dotted line?

The legal minds in the audience are invited to weigh in with their assessment.

Comments

#1 Anna
November 26, 2008

Considering that kids as young as 14 can sign up and the EULA is usually written in language that most adults can’t easily understand, I can see it as being somewhat of a defense. Even if a person makes an effort to read the EULA, they may not fully understand what is it they’ve read and may only agree to those parts they understood. There’s almost never a button that reads “Our user agreement in basic English” for those of us who chose some other profession besides lawyer. That’s not to say that creating fake accounts and using them for harassment is even remotely OK, just that the whole idea of User Agreements is probably not the way to go about it.
#2 Comrade PhysioProf
November 26, 2008

Well, these are what are called contracts of adhesion: “take it or leave it”. Because they are not negotiated between two parties of comparable bargaining power, the law treats them differently than ordinary contracts, and construes them with a heavy presumption of favorableness to the weaker party. In some jurisdictions–although not in the US–”click-wrap” contracts of adhesion are not enforceable at all.

I’m not taking a position on the merits of the argument made in this case. I’m just saying that there is long-standing legal doctrine that distinguishes this kind of contract from traditional negotiated offer and acceptance.

What is more interesting about this case is how the prosecutors bootstrapped from a violation of Terms of Service–a breach of contract and not a crime–to a crime via wire fraud allegations. I’d be appealling the shit out of this conviction, as I think there is a great shot to overturn it.
#3 Mike
November 26, 2008

Drew may or may not have read or even understood the EULA but she must have had some idea that what she did was wrong even if it wasn’t explicitly spelled out for her. What she did was ignorant and amoral by any standards and, at her age, she had to know that. She shouldn’t plead ‘ignorance’. She needs to claim ‘really stupid’ and go to jail.
#4 Rose Colored Glasses
November 26, 2008

These ‘contracts’ were invented by lawyers who bilk corporations out of money by giving spurious advice to gullible clients.

If you read and click ‘agree’ to a contract, you have no copy of it. The company can present anything they want in court and insist that what they show is what you agreed to, and the judge — who is almost certainly an idiot and putty in any shyster’s hands — will buy the argument, not because that’s the law but because he’s a damn fool. You can always say that the agreement you clicked promised you a $1000 US Savings Bond as their way of thanking you.

Secondly, none of the terms are spelled out in the contract, and you cannot ask any questions, so nobody can know what the meaning is, and hence it is by definition meaningless. The contract could be written in Chinese, Elvish, or Klingon, but you would still ‘click’ it.

Thirdly, it is only a gimmick. If the (next) US Attorney General announced to the country that all of these read-and-agree deals had the full force of law, and nobody should ever agree to one without consulting with an attorney first, then the websites who carry them would drop them for fear of losing customers. Take them seriously, and they have to stop. So they aren’t to be taken seriously.

Fourthly, it is not a contract unless both parties sign it, and each gets to keep a copy of it. A mouseclick could have come from you, your cat, your puppy, your neighbor’s baby you’re minding at the moment, or a malware script. How exactly does a kitten or a piece of malware identify itself in the contract ‘signing’? A click is not a signature.
#5 Bryan
November 26, 2008

Actually I have heard something similar to Rose Colored Glasses’ point (one of my friends is a law nut, and recited points fairly close to RCG). All those click and agree contracts aren’t legally binding. I think a case up in the Northwest set the precedence on this back in the late 90s early 00s, but I could very well be wrong on that.

Really I think the only reason they exist is so software companies could cover their bums, and not be held liable for what someone figured out they could do with their software. When the internet came along the behavior was carried with it. But, once again, this is all purely conjecture, I could be wrong.
#6 Phony Name
November 26, 2008

As commenters have stated, it isn’t a contract. In fact, Myspace is very careful to not call it a contract. It’s a terms-of-service agreement; consisting of the terms on which they provide service. It also asserts to allow them to legally reproduce user provided content for their own use, maybe in an advertisement, or simply a memo or hard copy for reference, or handing over copies at the whims of DHS without being sued by the users for caving in to the armed goons.

And not much else, really. All it’s really good for is them walking away from any user at any time after giving away a service for free. Especially the users that use phony names on the internet. But that’s got to be exceedingly rare, right?
#7 Cherish
November 26, 2008

Ignorantia juris non excusat, but the real question is whether or not any laws were violated…or if MySpace can just pull the plug on her.
#8 Mike
November 27, 2008

Ignorance of the law may not be an excuse but ignorance of common sense and moral correctness ought not be an excuse either.
#9 Art
November 27, 2008

There is also the aspect of these sorts of things that both sides are employing legal fictions.

EULAs are frequently written in language so opaque and convoluted that entire teams of lawyers, even the ones who wrote them, are often unable to draw consistent and clear conclusions as to who is agreeing to what.

The presentation is such that even if one intended to read the EULA it would be difficult if not impossible without requiring an unreasonable amount of time and effort. Small font sizes, tiny windows and ridiculously long documents are common.

The agree/disagree interface invites ignoring the text of the document.

The length, wording and presentation of these EULAs are in effect designed to not be read, not be understood and are designed to gain uninformed and unconsidered consent from the user

All the above factors are results of the unilateral actions. Actions that cannot be simply or easily undone or compensated for by the user. The user didn’t write the contract or design its presentation.

In effect both sides are engaged in a legal fiction. The presenter of the EULA makes a show of presenting the contract without making the contract actually readable or understandable. The user makes a show of tacitly agreeing without having had a reasonable chance at understanding the agreement.

The entire exercise it typically information-free. It is an empty contract where nothing is really communicated, understood or agreed to. In fact the popular understanding are that EULAs are, for the most part, unenforceable and the customary and expected course is that users click on accept without a second thought. This tacit understanding has existed for about forty years and it has been accepted as satisfactory within the community of those who write and present EULAs.

Seeing as that the character of this transaction is designed and presented entirely by one side to be empty and meaningless it has to be assumed that they understand that their ability to hold anyone to the contract is, by design, limited.

If the companies presenting EULAs wish to establish truly enforceable and binding rules they are going to have to change both the presentation of the agreement and the interface. They will need to make the documents both shorter and more understandable. They will have to alter the typical interface to make real understanding of what is being presented and the obligation agreed to plainer and more meaningful.

As it is now they pretend to present a contract. And we pretend to agree. So far this has been the legal model.
#10 odedy
November 30, 2008

The only answer to the problem of kid’s safety online is by using age verification systems such as the innovative biometric age verification system provided by VerificAge (www.verificage.com):
- Establishes full segregation between adults and children online
- Does not use any kind of data base. Eliminating risks involved in storing and maintaining data.
- It does not identify the user personally but rather his/her age group category; therefore, the user’s privacy cannot be jeopardized.
- The system is based on a “one time” biometric measurement that can distinguish a child from an adult with a very high accuracy rate.
– It can assert a user’s age every time he wishes to access a website, content, or while interacting with others
It seems that VerificAge’s solution is going to change children’s surfing culture on the Net and increase dramatically children’s safety online.
#11 Therapy
December 1, 2008

I agree on the age verification systems on protecting kids who are online. I dont think there is much legality tagged to any of the terms and conditions check boxes.
#12 anonymous
December 1, 2008

I would question the claims made in the advertisement posted by odedy – it sounds like a bottle of snake oil to me.

The “solution” that I have heard (and it sounds like something that has a chance of working) is parental involvement and maybe even supervision.
#13 ttch
December 2, 2008

I’ve read a few of these EULAs, and many read that the terms can be changed by the provider “without notice”. Such a thing cannot possibly be a contract.

What the lady did was pretty scummy and there ought to be a law against it. This law ain’t it.