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Site Says 'Go Away!'; Federal Court Says No

Posted by ryuzaki0 on from the best-laid-plans dept.

CaptainEbo writes "Michael Snow was the webmaster of Stop Corporate Extortion, a private support group website for 'individuals who have been, are being, or will be sued by any Corporate entity.' In order to access his site, users were required to register a username and password, and agree to a statement saying they were not associated with DirecTV, Inc. Several defendants in suits brought by DirecTV would discuss their cases on Snow's site. When DirecTV's employees and lawyers ignored Snow's user agreement and accessed his site anyway, Snow sued, claiming they violated the Stored Communications Act (SCA) by accessing his site without authorization. In an unanimous opinion, the Eleventh Circuit rejected Snow's suit."

42 of 546 comments (clear)

  1. ohhh ... EULA by karearea · · Score: 5, Insightful

    Where does this leave things like EULAs?

    1. Re:ohhh ... EULA by rodgster · · Score: 3, Insightful

      EULAs?????

      It would appear they aren't worth the electrons required to display them.

      --
      Who will guard the guards?
    2. Re:ohhh ... EULA by CaptainEbo · · Score: 5, Informative
      Karearea~ A commenter on the linked to site left this remark about EULAs, which I believe is a correct statement of the law:
      EULAs and the like are governed by contract law, which is a completely different ballgame than the SCA. Under contract law, an agreement is valid if one party offers something to another, the offer is accepted, and both parties agree to give something up. In the context of a EULA, the text of the EULA is the offer, clicking on "I Agree" is the acceptance. That means that so long as the last requirement (both parties give something up) is met, that click-through agreements are valid for EULA purposes.
      In short, this case only dealt with the meaning of a particular statute (the SCA). EULAs rely on contract law, which are a totally different area of the law. This decision should not effect EULAs.
    3. Re:ohhh ... EULA by MamiyaOtaru · · Score: 5, Insightful

      More importantly, where does it leave warez sites that only let you in if you agree not to be a law enforcement officer?

    4. Re:ohhh ... EULA by Mistlefoot · · Score: 5, Insightful

      This both makes sense and doesn't.

      "While the court did not explain just what sort of security measures would invoke the SCA, it did hint that a webmaster who "screens the registrants before granting access" would have a stronger claim than one who merely asks his registrants to "self screen"

      Imagine having a bar with a sign out front saying "if you are under the legal age you cannot purchase alcohol here. By entering you are agreeing you are of legal age". You can't just sell alcohol to anyone entering because they agreed they were old enough.

      You need to "screen of registrants" or patrons in this case.

      At the same time the "underage" drinkers will be charged and deemed responsible for their actions (even though the bar may be charged or lose their license as well).

    5. Re:ohhh ... EULA by Kamineko · · Score: 5, Informative

      It leaves them exactly where they were: Here.

    6. Re:ohhh ... EULA by Maxmin · · Score: 5, Informative

      Reread the parent post - they sued under the SCA, not contract law. Any precedent and case law applies only to the provisions of law invoked by the plaintiff.

      --
      O lord, bless this thy holy hand grenade, that with it thou mayest blow thine enemies to tiny bits, in thy mercy.
    7. Re:ohhh ... EULA by EonBlueTooL · · Score: 3, Insightful

      Doesn't a website owner give up space on their server and usage of their bandwidth?

    8. Re:ohhh ... EULA by mctk · · Score: 5, Insightful

      However, even more important is the fact that teenie-boppers can feel justified when they click those "Yes, I am 18" links!

      --
      Paul Grosfield - the quicker picker upper.
    9. Re:ohhh ... EULA by CaptainEbo · · Score: 5, Informative

      The SCA is a federal statute, passed by Congress & signed by the President. It applies only when the conditions specifically described in the statute are met. In this case, those conditions are access of stored communications "without authorization". The text of the statute also contains an exception, which says that even if stored communications were accessed w/o authorization, the statute does not apply if those communications are "readily acessible to the general public." According to the Eleventh Circuit, merely requiring the user to click a button saying they agree that they are not something does not prevent a site from being "readily accessible to the general public." Contract law is hundreds of years old, based on the English common law, and modified somewhat by state legislatures. Under the common law of contracts, there are three elements to a contract: 1) An offer 2) An acceptance 3) Consideration (meaning that both parties agree to give something up) Because contract law is governed by state law, it is rarely raised in federal courts, such as the Eleventh Circuit (there are exceptions, under something called "diversity jurisdiction" or "supplimental jurisdiction" but I imagine the readers of Slashdot don't want me to give them an entire semester's worth of Civil Procedure). When a contract claim is raised in the proper court, however, a contract will generally be deemed to exist if the three elements mentioned above exist.

    10. Re:ohhh ... EULA by Vengie · · Score: 3, Interesting

      No trespassing signs serve to put you on notice that you may be violating someone else's property rights. It does not effect a "screening" necessary to make a "private club" or a "secured" website for SCA protection.

      Also, FYI: In states where intent to disposess is required in adverse posession (subjective test states), the PRESENCE of a "no trespassing sign" will allow the adverse posessor to sustain his claim of open, notorious and HOSTILE as a result of the sign. (Whereas without a no trespassing sign, in the same jurisdiction, the claim for quiet title would have failed.)

      Your analogy has absolutely nothing at all to do with the 11th circuit's holding.

      --
      When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
    11. Re:ohhh ... EULA by Vengie · · Score: 4, Interesting

      This changes absolutely nothing. This has nothing to do with contracts, but "public" vs "private." Basically, in order for something NOT to be considered "public" you must have meaningful screening. Consider a "private club" that allows anyone to join -- it is no longer a private club according to the LEGAL definition of such. Step-Saver, Gateway and the traditional e-Commerce contracts cases (Box-top and clickwrap EULAs) are completely untouched by this.

      --
      When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
    12. Re:ohhh ... EULA by jdcook · · Score: 3, Informative
      "Wow, isn't that the whole argument against EULAs? That there's no consideration?

      "Either this ruling or EULAs will be overturned. Anything else is a double standard."

      Of course there is consideration in EULAs. It doesn't take a hell of a lot for there to be consideration (think of the $1 contracts that are upheld). The money you pay is your consideration. The software (or access rights thereto) they provide is theirs. All it means is giving up something (ANYTHING!) you din't have to give up.

      "Consideration" does not mean "carefully considered all the ramifications" which might be what you be getting at. I.e. a policy consideration that the parties to a EULA are so unequal in bargaining power that enforcnig the contract "offends the conscience".

      --
      Q:How many libertarians does it take to stop a Panzer division? A:None. Obviously market forces will take care of it.
    13. Re:ohhh ... EULA by Randall_Jones · · Score: 3, Interesting

      Yeah, this was a federal question but regardless, the plaintiff could have raised the contract claim under supplimental jurisdiction. Unless he or his lawyers know something I don't, it sounds like a nice malpractice claim to me. That is, if Snow's still feeling litigous -- the malpractice claim would mark his 3rd court battle. The contract claim seems much stronger than the SCA claim. Any other legal hobbyists care to tell me why they didn't pursue it?

    14. Re:ohhh ... EULA by Vengie · · Score: 5, Interesting

      Property owners that shoot trespassers will end up going to jail for attempted murder in virtually any US jurisdiction, unless you're talking "breaking and entering my home in the middle of the night." I can't tell if you're trying to bait me or asking a serious question. If the latter, post some contact info and I'll explain the state of the law to your heart's content. I was merely discussing adverse posession. I can assure you, the use of force to combat civil conversion of property is a crime anywhere in the united states, no matter what you have posted. [If someone trespasses on your SHOOTING RANGE and you have a sign posted that says "trespassers will be shot" and they get shot, you're probably screwed. If you have a sign up that says "THIS IS A SHOOTING RANGE, YOU MAY BE IN DANGER" and you tell the cops that you intentionally shot him, you're also screwed. You cannot post a sign that says "trespassers may be shot." Signs that say "beware of dog" are akin to the signs that say "this is a shooting range." If you *intentionally* "release the hounds" (i.e. an attack dog) on a trespasser you will go to jail.)

      --
      When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
    15. Re:ohhh ... EULA by Vengie · · Score: 3, Informative

      Step-Saver and Gateway hold otherwise. You can't EULA around the warantee of merchantability (or fitness for purpose) but otherwise, you're golden. I'm sure Todd Rakoff would agree with you, but not everyone else would. (In Easterbrook's court, you'd be laughed at....) Modern contracts doctrine has done away with many instances of consideration, one of the few places where it is required is to form binding (i.e. non-revocable) option contracts. There are plenty of places where "consideration" isn't really needed.... [Unilateral contracts, promissory estoppel, the UCC....]

      --
      When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
    16. Re:ohhh ... EULA by kfg · · Score: 5, Interesting

      The money you pay is your consideration.

      In the case of boxed software the consideration is made to the retailer for a piece of physical property, not to the rights holder for the license.

      And a license is not a contract. A license is a grant of limited rights. A license may be a valid license without being a contract at all, as most commercial EULAs are not.

      They are often worded in doublespeak as if they were asking you to give something up, such as saying that you cannot copy the program to more than one computer, but this is actually a grant to copy to one computer. You are not giving up the right to copy to more than one computer because you never had that right in the first place.

      EULAs are very carefully worded to give the impression that they are contracts without ever actually including any legally enforceable (certain commercial obligations of the licensee and rights held by the licensor cannot be altered by contract, they are a matter of law) contractual terms.

      The GPL, oddly enough, is both a valid license and a contract, because it fully spells out the articles of consideration by both parties, the permanent assignment of what would otherwise be exlusive rights of distribution.

      KFG

    17. Re:ohhh ... EULA by paeanblack · · Score: 3, Insightful

      This changes absolutely nothing. This has nothing to do with contracts, but "public" vs "private." Basically, in order for something NOT to be considered "public" you must have meaningful screening.

      In other words:
      If you give unrestricted, unscreened access to 99.99999% of the public, you can't discriminate against the remaining 0.00001%.

      It's a pretty sensible ruling. Anything that is "Open to the Public" has to play by different rules.

    18. Re:ohhh ... EULA by Ksisanth · · Score: 3, Informative

      See Chapter 9 of the Texas Penal Code, particularly Sec. 9.42, "Deadly Force to Protect Property" pdf

      Trespassing isn't enough to justify deadly force, but it's easy to see how those stories get started.

    19. Re:ohhh ... EULA by 14CharUsername · · Score: 3, Interesting
      What if instead of a registration form he had an application form? Users would apply for accounts. The application would ask a few questions, one of which is "are you an employee of DirectTV?" If you answer yes to that your application is rejected, otherwise it is accepted. How is this different from what this guy did?

      DirectTV employees misrepresented themselves when registering for an account. Is this acceptible?

      What if I apply for a credit card and claim that I make $200,000 per year, when really I'm unemployed? Where is it we cross the line of being "just a formality" and being fraud? Clicking a check box? Entering a number into a text field? Or is it just when it costs a big corporation some money?

    20. Re:ohhh ... EULA by pclminion · · Score: 4, Insightful
      Had she actually drank the coffee rather than spilled it, she'd have had permanent scarring on her esophagus and tongue and probably would have lost the ability to speak.

      Bullshit. You have multiple reflexes to prevent you from ingesting boiling or near-boiling materials. 180-degree coffee would hardly get past the lips, much less down the throat.

      When you put your hand in a fire, do you CONSCIOUSLY pull it away or is it an automatic reflex? On the contrary, it requires severe conscious control to KEEP the hand near the heat even if you wanted to.

  2. This is a blatant double standard by Zork+the+Almighty · · Score: 5, Insightful

    It seems more and more like we have a double standard when it comes to "computer trespass" laws. People can be threatened with prosecution for downloading files which a company mistakenly posts on a public webserver, yet when it comes to a citizen and their own personal site they have no mechanism to keep people out.

    --

    In Soviet America the banks rob you!
    1. Re:This is a blatant double standard by DerekLyons · · Score: 4, Insightful
      It seems more and more like we have a double standard when it comes to "computer trespass" laws. People can be threatened with prosecution for downloading files which a company mistakenly posts on a public webserver, yet when it comes to a citizen and their own personal site they have no mechanism to keep people out.
      Yes - they do. If you read the TFA, the Court's rejection of Snow's suit is based on the fact that he took no effective measures to keep people out. It did not say in any form or fashion that you could not erect such effective barriers as you desire - only that 'self screening' (having a user click the 'I agree' button) does not constitute an effective barrier. This makes sense on the face of it, because there is no screening or locking mechanisms - the forums in question are freely available to any random member of the public, hence they are (legally) not effectively different from the front page of Slashdot.
    2. Re:This is a blatant double standard by killjoe · · Score: 3, Informative

      "It seems more and more like we have a double standard when it comes to "computer trespass" laws."

      It's not limited to computer trespass and it's not "more and more". We have always had two different legal systems in the US. One for the rich, one for everybody else.

      American legal system is the best legal system money can buy.

      --
      evil is as evil does
    3. Re:This is a blatant double standard by hyfe · · Score: 3, Insightful
      From linked blog:
      In order to access Snow's site, a user was required to register a username and password, and to agree to a statement affirming that the user was not associated with DirecTV, inc

      So, in order to access the site, you had to register. If asking the user is not considered 'no effective meaure' what the hell is? Does this mean we can all ignore EULA's too, since the companies are taking 'no effective measures' besides an 'I agree' button? I mean, seriously, this sort of logic will certainly make a lot of things easier to handle:
      'Yes, I know I signed the contract with a false name, but what measures did the other party really take to keep me honest? If they're relying on me not lying, it's clearly their own fault they got burnt.'
      "Your honour, I know the defendant asked me to stop punching him, but he didn't take any effective counter-measures so I figured it was really alright to continue "

      --
      "" How about taking the safety labels off everything, and let the stupidity-problem solve itself? """
    4. Re:This is a blatant double standard by Vengie · · Score: 4, Informative

      ...the problem is Snow sued under the SCA rather than traditional contract theory. Of course, they violated their "contract" -- so the court would award him WHAT at best? An injunction? Because he couldn't have set up an IP blacklist to get that already? Seriously, the difference here is between contract law and a form of "public access" (public accomodations) law. If you are a private club with no serious barriers to entry, you cannot claim to be a private club, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966).

      --
      When in doubt, parenthesize. At the very least it will let some poor schmuck bounce on the % key in vi. (Larry Wall)
    5. Re:This is a blatant double standard by Zork+the+Almighty · · Score: 4, Interesting

      Tell that to Richard Dinon, the Florida man charged with a felony after using an open wireless access point. Or how about the Register.com versus Verio case ? The court ruled that Verio scraping a publically available whois database was illegal, because Register.com put a notice in there that repeated automated access was not permitted. That precendent almost contradicts this one (there's the distinction of how versus who).

      For what it's worth, I agree with the court's ruling. What I don't agree with is the tendency for people, companies, government agencies, police, and yes, occasionally the courts, to presume that citizens need permission for everything that they do. If it doesn't violate a law, we don't need permission.

      --

      In Soviet America the banks rob you!
    6. Re:This is a blatant double standard by FhnuZoag · · Score: 3, Interesting

      This does have a parallel with another recent case, though - specifically:

      http://yro.slashdot.org/article.pl?sid=06/05/10/15 58200

      'My intention was never to disrupt security. The fact that I logged on and there were no passwords means that there was no security,' McKinnon said, outside the hearing at London's Bow Street Magistrates Court.

      Who faces 5 years and $250k in fines.

      Reading that thread, there is a general consensus that McKinnon deserved it - the ease of entry didn't matter, so long as he was aware that he was tresspassing.

  3. Exactly the same as before... by Nick+Driver · · Score: 4, Insightful

    Where does this leave things like EULAs?
     
    ... that is, if you are a big powerful rich corp, then the courts will happily uphold your EULA but if you are a small-time nobody, then your EULA doesn't mean jack squat and the courts will trod all over it. Nothing has changed.

    And no, I'm not intentionally being cynical... I'm just simply being observant of the way things really work.

  4. Trespassing by Jordan+Catalano · · Score: 3, Insightful

    I know you can't extrapolate from online laws to real-world ones, but...

    On Snow's site, any member of the general public could access the site by merely registering with a username and password and clicking on the words "I Agree to these terms." Such an easily surmountable barrier to access is, according to the court, insufficient to make a site not "readily acessible to the general public."

    If I own some land, and don't want people trespassing to pick berries but have no problem with them hiking across it, I can put up signs to that effect. If they come to pick berries, I can kick them out for trespassing. Were online standards applied to this law, even putting up a short fence wouldn't be sufficient to allow me to enforce my signs; I'd need 15-foot concrete barriers and hired guides to chaperone all visitors.

    1. Re:Trespassing by EvilNTUser · · Score: 4, Insightful

      Actually, in several countries you couldn't even do that. In Finland, wherever you erect a house is considered completely private property, but if you own forest beyond your back yard, you can't prevent people from using it.

      They can't, of course, start cutting down trees or breaking things, but you're not allowed to prevent them from doing reasonable things such as traversing it or picking berries/mushrooms.

      This makes perfect sense, as the only other alternative would be for the government to own all forests, to prevent crazy landowners from destroying everyone else's enjoyment. Imagine if you had to pick berries with a GPS locator and a map of all local land borders.

      In practice, it means you can't start posting stupid signs telling people what they're allowed to do. Just like that website couldn't...

      --
      My Sig: SEGV
  5. It's not a double standard. by Anonymous Coward · · Score: 5, Insightful

    This isn't a double standard by any means. It's what many call the "American standard".

    This man's first offense was not being a corporation. His second was daring to question the actions of corporations.

    The standards are quite clearly set. Individuals are not allowed to take a stance against corporations or their actions. Corporate greed trumps all. It's very evident how the system works.

    1. Re:It's not a double standard. by Anonymous Coward · · Score: 5, Insightful

      Exactly. If you doubt what the parent says, or think he's just being cynical, try distributing the Sony rootkit yourself and see what happens to you.

  6. dismissed with cause by coaxial · · Score: 3, Insightful

    The SCA isn't applicable here. He should have brought a civil suit citing breach of contract. That's just standard licensing/contract law.

  7. No mention of contract by MulluskO · · Score: 3, Insightful

    The ruling makes no mention of EULAs or contracts. I think this would have been a far more interesting case had Snow argued that viewing the website was a breach of contract rather than attempt to apply some anti-hacking law someplace that it doesn't belong.

    --

    Too busy staying alive... ~ R.A.
  8. Re:Discrimination by jjohnson · · Score: 3, Informative

    The crucial difference being that race is a protected class in anti-discrimination legislation, while employer is not.

    --
    Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
  9. woman's bathrooms by Anonymous Coward · · Score: 5, Interesting

    Does this mean I as a man can now go into woman's bathrooms and showers and such? There is just a sign! There is no real screening process! Woot!

  10. The statue of justice icon is wrong by lisaparratt · · Score: 4, Funny

    It's missing a brown envelope sticking out of her packet pocket...

  11. Re:Discrimination by Lord+Kano · · Score: 3, Insightful

    Could I create a website that says no "blacks" can enter? NO! Could I be sued if I did? YES!

    Yes you could create such a website in the US and on what grounds could anyone sue you?

    Private citizend engaging in discrimination is perfectly legal. Being an asshole is not a crime.

    He should not be able to create a website saying no Direct TV personel and they have every right to counter-sue in my opinion.

    I would respectfully submit that you have no fucking clue of what you're talking about. Under what law could they counter-sue?

    LK

    --
    "Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
  12. No. That's not how the system works. by trezor · · Score: 3, Insightful

    This was a private person working against corporations, and it was shot down. When the corporations with their army of lawyers and legal fud wants to persuit this against people, expect it to be fully enforcable. They will have no problems what so ever.

    Ok, so I don't know that, but I'm pretty sure that's how it will turn out.

    --
    Not Buzzword 2.0 compliant. Please speak english.
    1. Re:No. That's not how the system works. by walt-sjc · · Score: 3, Insightful

      It comes down to money. The private individual in most cases (I would bet at least 99.99%) does not have enough money to properly defend himself against the corporation (or mount an attack for that matter, as we saw in this case.) Your home-town lawyer is NOTHING against the billion dollar law firms large corps. use (not to mention their in-house legal staff.)

      We probably need laws that allow for X times damages and expenses when an individual or company has X times the financial / legal resources of the opponent and loses. It would encourage much more pro-bono activity and more corporate responsibility. Not even 100% of the "extra" penalty needs to go to the winner - some could be used to offset the court costs / infrastructure that we taxpayers pay for.

  13. Re:Not a coffee drinker, are you? by mjm1231 · · Score: 3, Informative
    For children and senior citizens, 180 degree liquid can cause third degree burns in approximately one second. Once spilled, I don't see how you could possibly remove the spill from your lap in less time than this, no matter how catlike your reflexes are.

    I've heard that coffee begins to deteriorate after more than 15 minutes and that it is best served immediately after brewing at close to 200 degrees F. I'm not sure how anyone knows this, though, since it must be difficult to determine the flavor with your tastebuds burned off. In fact, I've burned my tongue numerous times using your ingenious sip test to check the temperature of my coffee.

    --
    Ideology: A tool used primarily to avoid the bother of thinking.