"The thing that really bothered me was that [Drew’s] attorney kept claiming that nobody reads the terms of service… . I always read the terms of service…. If you choose to be lazy and not go through that entire agreement or contract of agreement, then absolutely you should be held liable."

Jury Foreman on the Lori Drew case

Some people may not realize what just happened, but basically, prosecutors charged a woman with violating the terms of service of her MySpace account, and the jury convicted, at least on a misdemeanor count.  The jury foreman wanted to send Lori Drew to jail for many years, but holdouts on the jury refused to convict her of a felony.

Think about this for a second.  Note to everyone on Tumblr … if you violate the terms of service of the Tumblr agreement, you’ve committed a crime now.  No, not just a breach of contract.  No, not just a reason for Tumblr to kick you off its service.  You’ve committed a crime.

Watch this:  ”Terms of Service for Jeff Miller’s Tumblr:  By reading this, you agree to only read this on Mars.”  Are you still reading this?  Are you on the Earth?  Then you’ve committed a crime—at least according to the prosecutors and the jury in the Lori Drew case.  I’m not kidding … anyone with a website can create criminal law.  Orin Kerr does it here.

This is madness, isn’t it?  And not just silly little madness, but really bad precedential madness.

posted 11 months ago