Lori Drew Jury Foreman Agrees: Don’t Read Your Terms of Service? Go Directly to Jail, Do not Pass Go, Do Not Collect Constitutional Rights

Lori Drew’s jury is speaking to the press, and some are not happy. The forewoman of the Jury in Lori Drew’s trial gave this interesting quote to Wired’s Threat Level blog: (Thanks to Volokh for the story)

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

Quick question: did you read the terms of service for this website? Did you read the terms of service for your email carrier? A forum or blog you just posted on? Google? And did Judge Wu not inform his jury of the difference between being “liable’ and being found “guilty?”  The juror goes on to say that she was disappointed with only securing misdemeanor verdicts, noting that if more malicious sounding text messages had been offered into evidence, it would have been easier to convince the entire jury that Drew’s conduct rose to the level of a felony.

First of all, I stand by my earlier comments when this trial ended that assigning criminal culpability to private contracts is kind of, well, crazy. What you and I go to jail for should always be written by legislators, not corporate attorneys or over zealous intellectual property contract lawyers. Although what Lori Drew did was heinous, let’s not go down this road to bring her to justice.

This also adds another layer to the debate. Namely, how much emotion and back-story should be considered acceptable in these kinds of cases? The juror here stated “trust me, I was so for this woman going away for 20 years,” and throughout the article appeared very moved by the clearly tragic consequences of this online hoax. The defense, for their part, tried their best to keep evidence of the suicide out of the trial entirely, under the (reasonable) argument that it would be more prejudicial than probative to whether Lori Drew actually committed a crime.

Lori Drew was not on trial for causing a suicide or for murder, but that is what this amounted to. How much of the verdict here was retributive rather than based on the law and the facts? Time will tell, as this will be appealed to the 9^th circuit court. (And from there possibly to the Supreme Court, who are not very fond of the 9^th circuit.) Although Lori Drew’s alleged actions are outrageous and deserve contempt, are they federal crimes? If the “act” being criminalized here is not following a website’s terms of service, I have to say no. Let’s keep those violations in the realm of “liability,” not “guilt.”