Amendment: Violation of ToS Should Not Be a Crime

Khyber writes "Three data and security breach notification bills have been approved by the Senate Judiciary Committee, one of which includes an amendment that adds clarity with regards to the Computer Fraud and Abuse Act. These three bills would require businesses to develop data privacy and security plans, and it would set a federal standard for notifying individuals of breaches of very sensitive personally identifiable information, such as credit card information or medical records. This clarification is welcomed, making the statute more focused towards hackers and identity thieves, instead of consumers that run afoul of ToS or AUPs of websites and service providers."

Comments

Well...

[Mashiki]

Considering we're now seeing companies turn around and simply trying to remove your rights by ToS and EULA I'm sure this will work well. See EA, AT&T and Sony.

Re:Violation of ToS should not be a crime

[KingBenny]

do you mean like , do EA and Sony have the right to oblige you not to sue them once you click the button ? in some cases massive corporations need to be held in line, doesnt that America have this great stuff about monopolies and such in place already ? If any company can just ask you to waver your basic rights once you click yes, something is wrong, you can't expect everyone to be (and here i'm afraid to use a word since words are ofthen the beginning of an explosive situation) enough to read the fine print of everything, especially between the lines. In a society based on consumption, consumers need protection. That's basic nature : the predator won't stop until its hunger is satisfied, now in nature this works, in human society , especially with money, it does not. If you want your source of income not to be depleted after a certain time, you should cultivate it with more than a whip and chains or it will get diseased or rise against you. (maybe thats also basic nature, but i dont know how much nature is left in the entity of society as a whole un-sentient, yet self-preserving being)

It already IS NOT a crime.

[Jane Q. Public]

While violations of TOS have ended up in court a bit too much lately, that is the result of overzealous corporations and prosecutors who are kissing their asses.

In general, courts have consistently found that violations of TOS are not criminal... if for no other reason than that would allow corporations (or anybody else for that matter) to write their own law... which is completely ridiculous.

What this bill, with the amendment, does is keep these cases out of court in the first place. Which is A Good Thing.

Re:It already IS NOT a crime.

[ppanon]

It's funny to read the Greek Sophists (23-24 centuries ago) argue that democratic laws were just a scam where the powerless ganged up to take advantage of the powerful.

To a certain extent it's true. But it's better than the alternative where the powerless revolt, and many of the powerless and powerful die as blood runs in the streets. That generally tend to be bad all around, including for business. Democracy is an uneasy truce between the powerful and the powerless to prevent that from happening, and unfortunately sometimes the powerful forget that. Hence that observation that "The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants".

Go further, please.

[Black Parrot]

It's good if they're requiring data privacy plans, but they should also develop some minimal requirements for what those plans say. How many stories to we get every week about someone's EULA claiming they have the right to sell your GPS data, or a corporation taking over another's assets and claiming that it is not held to the privacy agreements that data was collected under?

bad analogy?

[burris]

I have a large garden on my property. In order to benefit the community, I have an agreement with a local school where the students can come and pick vegetables to take home and cook for their own dinner. Each student has to agree to language stipulating that the vegetables are for their own use and violating that term will revoke permission to enter the garden and take vegetables. I catch some students taking baskets full of vegetables and giving them to homeless people at the bus depot so I give them a lecture and tell them they are no longer welcome to enter my garden and take vegetables. The next day I catch the same students in my garden filling up baskets of vegetables so I call the cops.

Q: should the students be liable for the crime of trespassing?

Re:bad analogy?

[Khyber]

Yes, because this is your property and thus this is a property crime, and not some contract violation.

You, as the owner of the property, said students may come get vegetables.

You have the right to choose which students may have that privilege of contract, since they aren't old enough to legally be in a contract in the first place (The school would have to enforce punishment on their side for the kid breaking the contract, you would handle trespassing.)

That's EXACTLY how it worked at my high school greenhouse.

Re:bad analogy?

[Miamicanes]

> Q: should the students be liable for the crime of trespassing?

Yes, because at that point you've explicitly and unambiguously revoked their permission to enter your garden and take vegetables.

It would be another matter ENTIRELY if you never confronted the students, observed them giving vegetables to the homeless, then escalated immediately to calling the cops the next day by arguing that giving the vegetables to the homeless automatically terminated their permission to enter your garden and take vegetables.

It sounds like splitting hairs, but it's the difference between making the individual absolutely, explicitly, and unambiguously aware that his permission to enter has been revoked, vs claiming guilt by automatic recursive fiat. The computer analogy would be if Facebook terminated your use due to TOS violations, and you proceeded to take advantage of a security exploit to resurrect your profile and continue using Facebook after they'd told you point blank you were no longer welcome.

In metaphorical terms, American law isn't binary and digital -- it's analog and gray. Generally speaking, the more obvious you (or a government) makes the boundary between legal and illegal, the more enforceable a law becomes. It helps to have lots of legal resources behind you to back up your position, but at the end of the day, American common law frowns upon insidious illegality. You can have quite a few situations where the students could find themselves in a position where you'd prevail over them in a civil lawsuit, but nevertheless fail to get them convicted of committing a crime. For example, if instead of telling them that they were no longer allowed to enter your garden, you sent an email to the principal of the school and expected HIM to tell them. At that point, you'd have a fairly clear case to sue them (though they'd arguably have an equally clear case to cross-claim the principal for failing to tell them if he failed to do so), but would have a difficult case to make in a criminal trial for trespass (assuming the prosecutor even pursued it).

Re:Violation of ToS should not be a crime

[Osgeld]

extortion is, which is what most TOS's are, see they never tell you that in order to use a product you bought you need to enter into a legal contract, and of course once you opened said product it instantly becomes used and getting any sort compensation for said product violates their rights. so at this point you either paid 60+ bucks for something you cant use, or you sign their contract.

Re:Violation of ToS should not be a crime

[ppanon]

I'm pretty sure there are strong definitions of what constitutes a crime. Civil law covers contracts and other arrangements between private parties (including inheritance and other aspects of family law). Criminal Law covers crimes (misdemeanours and felonies), which are generally activities which threaten the basis of civil society (i.e. fraud, theft, violent crimes).

Re:Violation of ToS should not be a crime

[PopeRatzo]

in some cases massive corporations need to be held in line

Dirty hippie. If you feel this way why don't you just go live in some European socialist hellhole.

Those corporations are the job creators and should be allowed to do whatever they want. Any infringement on their God-given right to do whatever they want is an example of how those islamist demoncrats take away your liberty.

More Churchill wit

[KingAlanI]

Churchill _was_ staunchly anti-communist (but was still willing to work with the USSR to deal with the Nazis), but here's another famous Churchill-ism:
"The best argument against democracy is a five-minute conversation with the average voter."

Re:Violation of ToS should not be a crime

[PopeRatzo]

So, if slashdot's TOS required the abandonment of your first born, you would be Fine with that?

You obviously haven't met my first born.

Re:Violation of ToS should not be a crime

[rtb61]

The governments continued recognition of identity theft and the legislation of a falsehood is basically a licence for corporations to send out fraudulent charges to all those person whom they think are unlikely to notice. When caught out, whoops 'er' identity theft as the excuse for anyone who complains.

Identity theft is a lie. A individual possibly made a false claim for a credit purchase and the seller failed in their duty of care to properly identify the user of that credit facility. Then seller than made fraudulent claim against the credit card holders account. The lie perpetrated by credit card companies, is that the credit card account holder is presumed liable for that purchase and most now prove themselves innocent. Reality the seller should be required to proved themselves innocent of the fraud they committed by supply real proof of the false purchase, the actual person who made that purchase.