The Drew verdict and terms of service

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Groklaw has an interesting article on the implications of the guilty verdict in the Drew case. (see also the amicus brief submitted by EFF et al.) The basic point here is that the legal theory under which Drew was prosecuted was that she had violated the Computer Fraud and Abuse Act by accessing MySpace's site in violation of their terms of service. As the amici observe, terms of service are often extremely vague (YouTube's Community Guidelines prohibit "bad stuff"), users generally don't read, and that sites probably ofte expect you to violate them (did you know that Google's TOS prohibit use if "you are not of legal age to form a binding contract with Google"?). They conclude that it's a really bad idea to give them the force of criminal law—should it really be possible to put 17 year olds who use Google in jail?

All this is of course true, but it seems like a pretty strong argument against terms of service in general. If they're ridiculously vague and nobody reads them anyway, then how does it make sense for them to be treated as some kind of enforceable contract? OK, so you can't do time, but check out this clause from Facebook's TOS:

You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney's fees, arising out of or in connection with any User Content, any Third Party Applications, Software or Content you post or share on or through the Site (including through the Share Service), your use of the Service or the Site, your conduct in connection with the Service or the Site or with other users of the Service or the Site, or any violation of this Agreement or of any law or the rights of any third party.

As I read this, if I as a Facebook user do something that causes Facebook some liability—even if I'm otherwise complying with the TOS—I've just agreed to indemnify them from any loss. That seems like a pretty substantial obligation to take on; I wonder if the average user has thought about it.


IANAL (that's the ToS for reading this comment), but my understanding is that the ToS issue comes up all the time in the non-electronic world, where it's known as "fine print". (Tickets of various kinds, for instance, are often covered with elaborate tiny-font ToS definitions.) I'm also given to understand (see my above ToS again) that there's a large body of case law specifying which such "fine print" is and isn't binding, under which circumstances. (For instance, I think--see my ToS again--that you can't disclaim liability for negligence, but you can disclaim liability for losses not due to negligence.)

So putting aside the issue of criminal liability, I see no reason to believe that a competent lawyer wading through a website's ToS couldn't simply treat it as the fine print on a paper receipt/ticket, and interpret its legal implications (or lack thereof) accordingly.

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