SAN DIEGO

THE RECENT federal grand jury indictment of a Missouri woman in a high-profile “cyber-bullying” case has created a stir in legal circles. Lori Drew, 49, allegedly created a My-Space account pretending to be “Josh,” a 16-year-old boy. “Josh” engaged in a flirtatious online relationship with a 13-year-old girl—as a hoax, reportedly as retaliation against the girl, who had clashed with Drew’s daughter.

Shortly after Josh broke off the relationship with the girl by telling her that the world would be a better place without her, the girl committed suicide. Missouri prosecutors could not find sufficient evidence to bring charges under state criminal statutes, so federal prosecutors turned to the federal Computer Fraud and Abuse Act. That act makes it a crime to intentionally access a computer without authorization to obtain information. The indictment asserts that the act was violated when Drew disobeyed MySpace’s terms of service to get information from My-Space to further the intentional infliction of emotional distress upon the 13-year-old girl.

The “terms of service” regulate the conduct of users of MySpace’s Web site. A user can become a MySpace member only by clicking a box that indicates agreement to the terms of service; the terms of service themselves, however, are only visible by clicking on the link titled “terms of service.” In other words, a prospective member must agree to the terms of service but My-Space does not require the members to actually read those terms, nor does it facilitate their ability to do so.

While nobody is defending Drew, legal scholars are concerned that the prosecution opens up a Pandora’s box and that any violation of the terms of service of a Web site could subject the user to criminal penalties. Given that few visitors to Web sites actually read the terms of service, the possibility is frightening.

Jennifer Granick, of the Electronic Frontier Foundation, recently noted on wired.com that some Web-site terms of service prohibit users from making disparaging remarks about the Web-site owner. She worried, “If you write on a blog something disparaging about that company, are you in violation of criminal law?” While such fears are understandable, they are exaggerated.

The key factor in determining whether a Web-site agreement is enforceable is the legal concept of notice: Did the user have notice of the particular term at issue? While Drew may not have clicked on the link to the “terms of service,” she knew that masquerading as a 16-year-old boy to manipulate a minor was against MySpace’s policies. In other words, it doesn’t matter whether she actually clicked on the link to the terms of service and read the terms — doing so would not have informed her of anything that she didn’t already know. MySpace should be allowed to set the standards for its own Web site. In this way, the Internet is no different from the physical world.

If I owned a clothing store, I could prohibit you from eating and drinking in it. I could kick you out if you harassed my staff or refused to hang the clothes back on the rack. While My-Space and other Web sites should not be permitted to impose onerous obligations upon their members without prior notice and consent, they should be allowed to determine what kind of business they want to establish and what kind of reputation they hope to project.

Lori Drew’s right to access the My-Space Web site was contingent upon her agreement to provide accurate registration information and to refrain from abusive conduct. Drew knew what the rules of the site were and she knowingly violated them.

The terms she violated were important ones to MySpace — in fact, so important that MySpace would not have permitted her to access its Web site if it had known what she was doing. Her continued access was thus unauthorized. If MySpace and other social- networking sites are not allowed to impose minimal standards of conduct through their terms of service, they risk becoming playgrounds for cyber bullies.

At least at the school playground, the kids know who the bullies are. On the Internet, nobody knows whether you’re a dog, a 16-year-old boy, or a 49-year-old mother.

Nancy Kim is an associate professor of law at California Western School of Law, in San Diego.