The Coming TOS Boom.


I admit that I confine my blog reading to the small-batch artisanal blogs. These are blogs that are not supported by advertising, not written for mass consumption, and that are mostly written by a single author who has other things to do with her life.

This means that I miss out on blogs like The Volokh Conspiracy that provide lots of valuable interesting content, much of it from people smarter than me.

How do I know that Volokh has such content, if I don’t read it? Because I read Simple Justice. New York criminal-defense lawyer Scott Greenfield is like the liver of the practical blawgosphere — he reads everything, filters out the garbage, and passes the rest on. Which is how I learned that Volokh has new terms of service, in light of the Lori Drew verdict (Drew was convicted of three federal misdemeanors for violating MySpace’s terms of service):

1. You will not post comments that are abusive, profane, or irrelevant. Civil and relevant comments only, as indicated by our comment policy.

2. You are not an employee of the U.S. government. Yes,
that includes postal service employees, law clerks, judges, and
interns. We’re a libertarian-leaning blog, and we’re for the private
sector only. Government types, keep out.

3. Your middle name is not “Ralph.” I’ve
always thought Ralph was a funny name, and even odder as a middle name.
No one with the middle name “Ralph” is welcome here.

4. You’re super nice.
We have strict civility rules here, and this blog is only for people
who are super nice. If you are not super nice, as judged by me, your
visit to this blog is unauthorized.

5. You have never visited Alaska. Okay, this one is totally arbitrary, but it’s our blog and we can keep out who we want. Alaska visitors are out, too.

Two things.

First, I’m reminded of — but can’t find — Make Magazine’s substitute terms of use, taking back all of the rights to hack our stuff that the people selling the stuff would purport to take away. Very entertaining; I’ll try to find it.

Second, I wrote here about how the government’s violation of terms of service might be defensively used in a Texas criminal case. Texas Code of Criminal Procedure Article 38.23 bars from evidence any evidence obtained in violation of law. If violation of terms of service = violation of law (as the Government successfully argued in the Drew case), then 38.23 requires the exclusion of any evidence obtained as a result of the government’s violation of terms of service (as, for example, where the government uses a false MySpace profile to get access to an accused’s MySpace profile). There’s no reason the same rule wouldn’t apply to TOS on a blog (like Volokh’s) as to MySpace’s. Coming soon: Defending People’s terms of service.

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0 responses to “The Coming TOS Boom.”

  1. Nice. Gang DA’s here often pull stuff off of defendant’s pages to support membership and active participation. Maybe I’ll try running a suppression motion here.

    The problem I envision is that it is easy for them to remedy as they can just subpoena this stuff from Myspace so unless they have to actually interact with the person there’s no need for them to pose as someone on the site. It would work well for the flood of Perverted Justice/Dateline cases we had a few years back though.

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