That’s the title of my Slaw post today.

It Reads:

I made that comment as an aside in an earlier post. This thought also ties in with a couple of Simon’s posts, and another of mine.

This is true for not just legal documents, but for things like legislation, business and government policies, and processes.

The operating manual approach means being a slave to precedent documents, processes or decisions and applying or using them blindly without enough independent thought as to how it fits the current situation.

The context approach means figuring out what the facts are and what result is needed, then using precedent as a guide or checklist to get to the best result for the situation at hand.

“That’s the way we have always done that” can be a dangerous approach, and does not foster innovation, improvement, or the right result.

For example, it was not unheard of for organizations doing privacy audits when privacy laws first appeared to find that they were collecting certain information for no other reason that it was listed on a form.

I’m not suggesting precedent is not valuable – it is indeed valuable as a guideline, an issue list, a place to start, a timesaver, a collection of prior wisdom, and an indication of what might be expected. But that value is negated if the precedent drives the result, rather than the facts and the needs.

“Tradition is a guide and not a jailer.” (quote from W. Somerset Maugham)

I’ve written before about how the notion that “there ought to be a law against that” can lead to ineffective laws with unintended consequences.  The same can happen in the courts when it is perceived that someone has done something wrong – but it doesn’t fit neatly into the charges.

That appears to be what happened in the Lori Drew conviction.  That’s the tragic case where a teenage girl committed suicide after an online ”friend” turned on her.  But the “friend” was really an adult perpetrating a hoax.

Drew was convicted of criminal charges for her actions, but it has been pointed out that she was essentially convicted because her actions were inconsistent with the terms of use of her mySpace account, ie she did not use here real name.

While I understand the desire to do something here – the conviction makes a bad precedent.  Its not unusual for people to use aliases online.  And making it a criminal offense to violate terms of service is scary.

Techdirt has some good postings on the topic - follow through the Techdirt links for more detail.  The latest post points to a post pointing out that the law as interpreted by the conviction would allow any site owner to make anyone they wanted be a criminal merely by the way the terms of use are drafted – such as saying you can’t use the site if your middle name is Ralph.