Is it illegal to breach a website’s terms of service?

For many people, the Internet is a simple, accessible way to gather information and enjoy services like online shopping or managing bank accounts. Shopping websites let us find products to buy, and most banks have their own online platforms for customers to monitor their finances. It's also a great source of entertainment. Social networking sites like Facebook and MySpace help us stay in touch with friends by exchanging messages and sharing links. You’ve probably seen countless videos on YouTube and perhaps even uploaded some of your own for others to enjoy. Some also purchase music through iTunes and store MP3s on their computers.

Online services have been around for long enough that many are now well-known names. In fact, visiting these sites has become a regular part of life for most Internet users. But have you ever had the sense that you might be doing something wrong while using one?

Virtually every reputable website, from Facebook to Hulu or Google, includes what's called a terms of service agreement or ToS. While each site has its own version, at its core, a terms of service agreement is a mutual understanding between you and the website. It outlines the rules of engagement, specifying what you can and cannot do while using the site.

But what happens if you violate one of those terms?

Terms of Service: Lori Drew and Unauthorized Access

When people engage with the Internet in a typical way—reading and replying to e-mails, staying updated on the news, or watching videos—they usually don't think twice about it. But have you ever wondered if simply using the Internet could land you in serious legal trouble?

The incident that sparked widespread concern involves the social networking site MySpace. While MySpace gained notoriety as a place where predators and stalkers could easily create fake profiles and contact others, a particular event in 2006 sent shockwaves through the online community. Lori Drew, a 49-year-old mother from Missouri, grew upset when 13-year-old Megan Meier, a girl from her neighborhood, stopped being friends with Drew's daughter. In a bid to resolve the situation, Drew, her daughter, and an 18-year-old employee created a false profile on MySpace under the name 'Josh Evans.' With this fabricated identity, the trio befriended Megan, only to harass her with cruel messages. Heartbroken by the bullying, Megan tragically took her own life by hanging herself. The Drew family knew that Megan had been undergoing treatment for depression.

Since MySpace's servers are located in Los Angeles, California attorney Thomas O'Brian intervened, charging Drew with criminal conduct. O'Brian argued that by using a fake profile, Drew violated MySpace's Terms of Service, which require users to provide 'truthful and accurate' information. This breach also led to 'unauthorized access' to MySpace's services, in violation of federal law outlined in the Computer Fraud and Abuse Act.

Being found guilty of 'unauthorized access' is typically considered a misdemeanor. However, if this act is linked to another illegal action, it could elevate the charge to a felony. Drew avoided a felony conviction, but in November 2008, she was convicted of three misdemeanor counts of computer hacking [source: Zetter]. What does this mean for the average person using the Internet?

Terms of Service and Felony

It’s the broadness of the initial decision and the process in the Drew case that has many people concerned. Legal professionals following the case are voicing their worries over the Drew verdict, with some questioning the safety of the Internet for individuals who, before the MySpace incident, were breaching very minor contracts.

The real issue is that many terms of service violations appear quite ordinary, and it’s likely that users unknowingly break them on a daily basis. Even if people did manage to read a website's terms of service, it would require a significant amount of time. In fact, it's estimated that if everyone took the time to read the terms for every site they visit, $365 billion in productivity would be lost [source: Anderson]. While some terms are clear, like Google’s which essentially states that users won't blame the company for any "offensive, indecent or objectionable" content found during searches, many others are filled with complex legal jargon.

In the past, there have been misunderstandings pointed out by careful readers. Google, for example, was forced to revise a part of its Terms of Service for its new browser, Chrome, after users noticed a specific clause in Section 11. The wording suggested that Google owned any content users "submitted, posted or displayed" while using the browser, implying that blog posts or emails sent would belong to Google. This was due to the developers simply copying and pasting text from its Universal Terms of Service, which gives Google a "license" to user-generated content under copyright law. Google later amended the Chrome document and issued an apology for the mistake on its blog [source: Yang].

There are still many uncertainties, though. For instance, MySpace users aren’t allowed to post someone else's photo without their permission. But anyone who’s familiar with social networking sites like MySpace and Facebook might find this hard to take seriously, since many users create photo albums without getting consent from their friends. While companies may not be actively hunting down common Terms of Service violators right now, the continued interpretation of the Drew case – which will likely be appealed and reviewed by the 9th Circuit Court – could expand the definition of what constitutes illegal activity on the Internet.