Vogel Internet, Information Technology and e-Discovery Blog : Texas Internet, Information Technology, eCommerce & E-Discovery Lawyer & Attorney Peter S. Vogel : Gardere Wynne Sewell Law Firm : Dallas TX

What a sad story that an email sent by Josh Evans (who did not exist) led to the suicide of Morgan Meier (a 13 year old). Actually Josh Evans’ emails were sent by Lori Drew, the mother of a former friend of Morgan, who “cyberbullied” Megan with a make-belief identity. How tragic for Morgan’s family and after a trial, a federal court jury found that Lori Drew committed a crime, but it will not end here. In December the federal judge will consider motions to set aside the verdict. Depending on what the federal judge does, this may continue in the appellate courts for some time to come.

Will Failure to Read the Terms of Service be a Defense?

Lori Drew’s attorney has filed motions to set aside the verdict because she did not read the MySpace Terms of Service which obligates users to provide “truthful and accurate” registration information. Prosecutors alleged that Drew’s phony profile was unauthorized access and a violation of the Computer Fraud and Abuse Act of 1986. That law was created to protect violations of federal and bank computers, and has been expanded to include most computers and the Internet.

How do Courts View Terms of Service?

Generally most courts tend to accept the Terms of Service (or Terms of Use) for a website as a binding agreement even though few individuals ever read them. Terms of Service are most often found below the fold of the front page of most websites…Google does not even have a Terms of Service on its front page. But courts rely on the fact that users have a choice to use the website and so should realize they are bound to whatever the website says the Terms of Use are. As we all know many websites also require a “Browse-Wrap Agreement” which asks the user to “Click Agree.” Virtually everyone does “Click Agree” without reading a single word of the “Browse-Wrap Agreement.” So it will be interesting to see how Lori Drew’s failure to read MySpace’s Terms of Use will be any kind of defense.
 

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A recent a Google announcement of Wiki services in Google to improve the search experience and allow users to rank search results has a number of individuals questioning exactly what’s going on. Just like most wiki projects, this project did not in a straight line. Apparently this new service came from a Google Wiki Search Team rather than Google Labs.

How does the new Google Wiki work?

The new Google Wiki will allow users to conduct searches, and then permits them to reorder or delete certain results. That way when users return for future visits to Google they get their search results in the order they want. Only the user has access to their own search results with its Google Wiki reorganization, so they can keep this private.

What’s really going on?

Some skeptics complain that Google’s run out of ideas and that they are fixing something that wasn’t broken. Maybe, but perhaps there’s more method to this madness – since users’ can control the priority of their search results, won’t Google have even more powerful advertising data about users? Google users are more likely to spend more time on Google, which can only help Google’s business. Privacy of personal information should be a major concern to Google users since Google will have a personal insight about search priority of search results, not to mention the deleted search results. Stay tuned for future developments!
 

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A ruling in Quon v. Arch Wireless in June, 2008 in the 9th Circuit may influence how much privacy individuals may expect with text messages and eMails that they send. The same month the opinion was issued there were an estimated 75 billion text messages processed in the US. That’s an astonishing number, but no more astonishing that the estimated 97 billion daily emails sent (see my September 4, 2008 blog).

What happened in Quon?

The Ontario, California Police Department issued pagers to its officers and purchased 25,000 characters per month for each device and then paid an overage fee in excess of the 25,000 characters. The Department had employment agreements that stated that the text messages were covered by the Internet and eMail Policies. However, the Department told the officers that if they would just pay the overage fees, then the Department would not bother to read the text messages to see whether they were personal or for police business. Ultimately the Department tired of being a bill collecter and asked Arch Wireless to send copies of the text messages for review. The officers filed suit saying that the messages were private to them, violated their Fourth Amendment rights of unreasonable search and seizure, and ultimately the trial court and jury agreed.

Privacy of Text Messages and eMails

Generally in the US eMails and text messages are not private to the employees so employers can review them if they wish, however in the EU and Canada text messages and eMails are private to the employee. In Quon the 9th Circuit interpreted the Stored Communications Act (18 U.S.C. §2702 “Voluntary disclosure of customer communications or records”) in that Arch Wireless was providing an “electronic communication service” (ECS) rather than a “remote computing service” (RCS). However, even the 9th Circuit that this ruling was very fact specific. So if employers want to have access to employees’ text messages and eMails it would be wise to state that specifically in the employment agreement, which should be updated and resigned annually, and then the employer should also follow its company Internet and eMail Policies regarding enforcement of the policies.
 

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The saga of where Yahoo! is headed took another turn when Google decided that it was not worth the federal scrutiny for Google and Yahoo! to work together. Clearly to the two largest search engines working together meant an increase in revenue for Yahoo! Microsoft a spurned suitor made it clear that it did not want Google and Yahoo! working together. As well, the Department of Justice (DOJ) has been reviewing this joint marriage since it was first announced.

How Did the Elections Impact the Cancellation?

Google’s decision to abandon the Yahoo! deal happened a few days after the election. However, Google CEO’s Eric Schmidt campaigned for President-Elect Obama, so one might have concluded that Google would have continued with this deal. In an unrelated event Thomas Barnett, Assistant AG for the Antitrust division of the DOJ, who was skeptical of the Google deal, resigned the day following Google’s decision to abandon the Yahoo! deal. What’s the message here?

What’s Going to Happen Now?

All indications are that Yahoo! has to do something for economical survival and maybe a new deal with Microsoft will be more appealing since the deal with Google ended. Google is the 800 pound gorilla in the search/ad business and everything it does to expand will continue to anticompetitive scrutiny, not unlike virtually every move that Microsoft makes leaves it subject to court scrutiny. However a deal between Microsoft and Yahoo! is anything but a sure thing since the DOJ will want to scrutinize any proposal that may be anticompetitive. As a matter of fact, a DC District Judge still gets reports about Microsoft’s compliance with the 2001 Antitrust Settlement.
 

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Since millions of individuals play online games, and many virtual characters are killed daily it’s hard to image exactly how someone could really be found guilty of killing a virtual character. However, apparently this news story from Japan indicates that the defendant was so angry with her Maple Story online husband that she killed his digital persona. Actually according to the story the defendant found that she was divorced without warning and so she logged into the virtual Maple Story world using her ex-husband’s ID and password to kill him.

How can one kill a virtual person?

This seems a little goofy except that Maple Story and all online virtual worlds, including Second Life, require all users to agree to terms of service (TOS). So it’s not much of a surprise that the TOS restrict what users can do…but neither Maple Story nor Second Life have TOS that even mention killing or murder. So that‘s why the Japanese authorities are charging the defendant with illegally accessing a computer which is a crime in most states and countries.

Where are we going with virtual law?

As mentioned in an earlier blog, the American Bar Association published a book entitled Virtual Law in which Chapter 10 is entitled “Criminal Law and Virtual Worlds” and states that the most common virtual law crimes include money laundering, fraud, gambling, and stalking/harassment. As well, some virtual worlds have tried to deal with sexual behavior which is pretty difficult to regulate. But it seems appropriate that the virtual worlds try to protect children from sexual behavior, so all TOS generally do not permit anyone younger than 18 from participating. However, as my favor New Yorker cartoon indicates with one dog sitting in front of a computer talking to another dog and says “on the Internet no one knows you’re dog.” No one really has a clue who is users really are. But defining pornography is not so easy, even when the US Supreme Court tried to define pornography Justice Potter Stewart’s famous statement in Jacobellis v. Ohio, 378 U.S. 184 (1964) was that he could not define it, ‘but he knew it when he saw it.’ So how can pornography in virtual worlds be regulated?
 

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