DOJ: Violating a Site's ToS Is a Crime

ideonexus writes "CNET has obtained a statement to be released by the Department of Justice tomorrow defending its broad interpretation of the Computer Fraud and Abuse Act (CFAA) that defines violations of 'authorized access' in information systems as including any act that violates a Web site's terms of service, while the White House is arguing for expanding the law even further. This would criminalize teenagers using Google for violating its ToS, which says you can't use its services if 'you are not of legal age to form a binding contract,' and turns multiple attempts to upload copyrighted videos to YouTube into 'a pattern of racketeering' according to a GWU professor and an attorney cited in the story."

Comments

Wow, I first read that as "*isn't* a crime"

[elrous0]

For a second there I thought the Obama Administration (and government in general, for that matter) had a sudden attack of conscience and decency. For that second I actually got to believe that it was even *remotely* possible that a government official might actually take the side of the vast majority of citizens and consumers in America, as opposed to functioning exclusively as the slavering lapdog of corporate America. In a brief instant I got to see what the U.S. might look like if we were an actual democracy instead of just a poorly-disguised corporatocracy.

Well, it was a nice second.

Re:Wow, I first read that as "*isn't* a crime"

[justin12345]

I have a feeling this won't hold up in court, no matter what the DOJ wants. If nothing else, treating ToS as legal documents would be a jurisdictional nightmare. For instance: Would you have to abide by Facebook's ToS on every site with a "Like" button and a FB tracking cookie? If I write in my site's ToS that all spam is unauthorized access, can I get Jeff Bezos thrown in jail every time Amazon sends me another coupon I didn't ask for?

Re:Wow, I first read that as "*isn't* a crime"

[bonch]

After so many lies and disappointments from this administration, I'm curious why you or anyone would expect otherwise, though I disagree with your "corporatocracy" remark as this is an expansion of government power.

Re:Wow, I first read that as "*isn't* a crime"

[ackthpt]

After so many lies and disappointments from this administration, I'm curious why you or anyone would expect otherwise, though I disagree with your "corporatocracy" remark as this is an expansion of government power.

Yep, this means corporations are writing the laws. You can only be criminal for breaking laws. Breaking ToS is criminal, therefore they have written laws.

Re:Wow, I first read that as "*isn't* a crime"

[Tsingi]

After so many lies and disappointments from this administration, I'm curious why you or anyone would expect otherwise

True enough. Bush is an idiot. Bush is an asshole. Bush has spewed out some whoppers. OTOH, Obama is a lying turncoat with no balls.

Hard to say who was the better (or worse) president.

Re:Wow, I first read that as "*isn't* a crime"

[sconeu]

If I write in my site's ToS that all spam is unauthorized access, can I get Jeff Bezos thrown in jail every time Amazon sends me another coupon I didn't ask for?

Of course not. Laws are not intended to be used against the rich.

Re:Wow, I first read that as "*isn't* a crime"

[interval1066]

A Terms of Service is a contract between private parties, not a statute or a penal code, and they are regularly thrown out of suites for a varity of reasons. Frankly I'm stunned this sailed through, aside from the fact that it was a closed door, back room deal. There's no way this can stand up to scrutiny. One thing's for sure, its obvious the WH is a corporate tool.

Re:Wow, I first read that as "*isn't* a crime"

[alexo]

If I write in my site's ToS that all spam is unauthorized access, can I get Jeff Bezos thrown in jail every time Amazon sends me another coupon I didn't ask for?

That depends on the amount of legislators and executives you can afford to buy.

Re:Wow, I first read that as "*isn't* a crime"

[todrules]

Really??? So, if Slashdot adds a term in their TOS that you are not allowed to have a username that starts with a 'b' then you would be in violoation of their TOS and have just committed a crime... And you're OK with this?

Re:Wow, I first read that as "*isn't* a crime"

[Genda]

The Obama administration was doomed at the onset. EVERYBODY... look at who our Vice President is. Mr. Biden has been a hit man for Hollywood and the Recording industry for... let's just say a long time. This has made him a profound antagonist for Silicon Valley, Open Source, Net Neutrality and a free (as in liberty) national infrastructure for the transmission of ideas and human artistic expressions which are free (as in beer) goes dead against everything he's been paid to think.

These are polarizing times and laws like the ones mentioned in the article above effectively criminalize the internet for the very people for whom it is most urgently needed (i.e. the next generation.) As long as we see fit to eat our own young in name of corporate greed, and hold onto every bit of IP with a white knuckled death grip, we will continue to see the borderline sociopathic and megalomaniacal demand greater control on every word, thought, feeling or human hope. To these despots, the First Amendment is a blasphemy, and until every man, woman and child pays them for the privilege of having a thought(tm) there is more dirty work to be done in Washington.

Re:Wow, I first read that as "*isn't* a crime"

[Genda]

Its extremely difficult to felate the XXXXX-AA (pick your media organization here), and write a meaningful law that makes any sense at the same time. I think it has something to do with reduced oxygen transport to the brain and possible concussion.

Re:Wow, I first read that as "*isn't* a crime"

[Hatta]

It's pretty clear it should be some sort of a crime

Why is that clear?

Fact is, a website is someone else's property, and violating someone else's rules on their property is, at the least, a violation of an agreement.

That sounds like a tort to me.

The pipe is not the content, and while you might be able to argue you have a right to use the Internet, you don't have a right to use any particular website, especially any that is private property.

Not every contract violation is a crime, nor should it be.

Re:Wow, I first read that as "*isn't* a crime"

[justin12345]

It strikes me that they are trying to equate "unauthorized access" of a computer to trespassing. The hitch is that the two don't equate very well, as unauthorized access will vary from situation to situation whereas trespassing is strictly defined. For instance trespassing:

I invite someone over for dinner.
I tell them I have a no shoes in the house rule.
They refuse to take off their shoes.
I tell them to leave, but they refuse. They are trespassing because they refuse to leave, not taking off their shoes isn't relevant.

Unauthorized access:

I invite someone over for dinner.
I tell them I have a no shoes in the house rule.
They refuse to take off their shoes.
They would now be in criminal violation, just because they didn't follow my rules.

Re:Wow, I first read that as "*isn't* a crime"

[EricWright]

So what were you high on?

Hope

Re:Wow, I first read that as "*isn't* a crime"

[similar_name]

It's pretty clear it should be some sort of a crime,

That's not clear at all. Do you think landlords should be able to charge their tenants with criminal acts for being late on rent? Typically speaking most contracts can be broken without committing a criminal act. It's a terrible idea to enforce contracts or TOS through criminal law.

Re:Wow, I first read that as "*isn't* a crime"

[Hatta]

There is a candidate right now that is anti-war, anti-torture, anti-extrajudicial killings, anti-multinational corporate privilege

Ron Paul isn't any of those. He's just against federal funding for any of those.

Re:Wow, I first read that as "*isn't* a crime"

[hairyfeet]

I'll get hate for saying this but I think Bush was better for one simple reason. Bush was an idiot but he was an HONEST idiot. he never hid what he wanted or covered it in bullshit, he was "the decider' dammit and he was gonna decide...err stuff or something.

Whereas Obama is a bold faced liar and will happily tell you anything you want to hear while cashing the check which he knows makes every word out of his mouth a lie. Just look at the completely bullshit responses he gave to the petitions, it was the most flowery "fuck you, you have no monies LOL!" I have ever seen written in my entire life. Obama takes the worst aspects of Jimmy Carter and Bush and rolls them together to make a truly slimy POTUS He is spineless like Jimmy, he is greedy like Bush, that folks is a BAD combination. At least Bush was clear and honest that he was a greedy asshole with cracks like his "My people" bit when addressing the elite 1%, or as he called them "the haves and have mores". Obama will pretend he gives a fuck while he quietly empties your bank account and offers any law the rich want passed as long as they sign the check.

As for TFA somebody cue up the Ayn Rand criminal quote because it soo fits. Here you have corps paying to basically make the ToS, which they can change at ANY time and for ANY reason, into an actual weapon they can use against those that piss them off, all with the blessings of a corrupt White House. Talk about giving the corps a blank check to fuck anyone that uses their services and pisses them off!

Re:Wow, I first read that as "*isn't* a crime"

[vux984]

It's pretty clear it should be some sort of a crime

No. Not its not clear that this should be the case at all.

Fact is, a website is someone else's property, and violating someone else's rules on their property is, at the least, a violation of an agreement.

So what? Its a violation of an agreement. They can try and sue you for damages if they feel they've been harmed enough to be worth it.

But to make it a crime is absurd. Think about what it means for something to be a crime. The police are involved... you are arrested, you get a criminal record... because your a criminal if you commited a crime.

If I order a thousand widgets from your company, and we sign a contract that you'll deliver them May 1st. If your late... you've just violated our signed contract... that's way more forceful than a ToS fine-print on a website... and that's not a crime. Can you imagine a world where it was. You miss that May 1st deadline... and the police show up to arrest you for committing a crime

Next time your late on a cell phone bill payment... your arrested. You agreed to pay them $X by y date, even signed a contract.

Next time your late bringing in a library book; well you've already got a criminal record for the cell phone crime... I guess you get hauled of to PMIA prison, you repeat offender.

Violating a contract shouldn't be a crime. Violating a ToS even less so.

Re:Wow, I first read that as "*isn't* a crime"

[Tsu-na-mi]

Step 1. build fake "terrorist", "child porn", or other website
Step 2. TOS disallowing access by members of government, police, any federal, state, or local agency
Step 3. log access and report offenders

Re:Wow, I first read that as "*isn't* a crime"

[DavidTC]

Indeed. Unauthorized access should be 'using the site when you are clearly forbidden to'. Aka, when you hack someone else's password or something.

It is exactly analogous to trespass, but with trespass law, we have very clear laws. And people can't put up signs that say 'You can only enter if you do eight thousand different things I will specific in this fine print here or you're trepassing'.

No. They can say 'No trespassing' or 'Authorized access only', and people must assume they need to get permission first. They can put up a gate or lock a door, and people must assume they need to get permission first.

They can't have a fricking path and post rules saying 'you can use this path only if you do X', and then have people arrested for trespass who break the rules. That is not possible under current law. And they certainly can't stand there and have a doorman let people in (You know, like automatically making an account.) and then have the person arrested for trespassing later.

Breaking rules is not trespassing. And it is not unauthorized computer access if someone breaks rules. The only rule is 'Was there some indication that people were barred in general? If not, were you somehow specifically barred from access?'

And, no, you're not required to do any math there...they can't say 'You are barred if you break the rules.' You have to actually be specifically barred. This isn't some goddamn logic problem.

Hell, in the real world, sometimes you can ban 'certain things' from your property, like 'solicitors'...and this requires a law defining what those are and that people can rightfully ban them. People aren't allowed to make up their own restrictions and sic the police on people who don't agree with what that restriction means. There are specific rules about how and what the few things you can put on a sign. (Hours of access are a common one.) And this sign must be publicly posted in a specific way.

Or, in another example, casinos can't post a sign saying 'No card counters allowed', and have card counters arrested for trespassing. They can have a rule against that, and throw them out, and have them arrested for trespassing if they come back...but not for breaking the 'access rule' in the first place.

But, apparently, we've decided that web sites should have near infinite power to have any visitor arrested. All they have to do is come up with some vague rule, or, hell, a rule that every visitor violates, like 'This site may only be accessed between using IE 5', and they can have people arrested at will.

TOS, EULA

[Oswald McWeany]

This spells potentially problems for a lot of people because most people do not read the TOS or EULA documents.

They're often in some obscure link in tiny italic font because companies don't really care if you read them- they use them to kick you off when it is convenient for them.

How many people for example are aware of Slashdot's TOS that states you have to sacrifice a goat once a week if you disable ads.

Think I'm joking?

I am- but I bet the vast majority of slashdot users wouldn't know for sure because they havn't read the TOS.

I used to- but they're so long and full of legaleese I stopped.

If citizens are going to be held accountable for violating TOS as a criminal offense- we're either going to have a bunch more criminals OR in order for TOS to hold water they have to pass a dumb user test- be short, to the point and easily understandable by Joe the plumber.

Re:TOS, EULA

[gknoy]

the vast majority of slashdot users wouldn't know for sure because they havn't read the TOS.

This is exacerbated by the fact that almost every TOS agreement or EULA says something like, "we can change this at any time, and don't have to notify you".

Re:TOS, EULA

[MozeeToby]

Fortunately outside the digital world- they would probably be hard to prove- and/or the police don't care to prosecute for obscure laws (or don't know them themselves).

This is not fortunate. I mean, obviously it is fortunate that you haven't been thrown into prison, but it creates a situation where you could be tomorrow for little to no reason. Circumstantially connected to a major crime? Sleep with a police officer's wife? Fight that unfair traffic ticket? A few hours or days of work and they can almost certainly find something that will stick at least long enough to make your life miserable. Selective enforcement should be terrifying, it is very little different from saying "we can legally arrest and convict anyone, at anytime we feel like".

Enough

[oldhack]

Impeach Obama.

It's all about power

[TheSpoom]

If everything is illegal, it means the government gets to pick and choose who to prosecute, meaning you'd better be on their good side.

Obigatory: Ayn Rand

[Anonymous Coward]

"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be
much easier to deal with."

Re:Obigatory: Ayn Rand

[Daniel Dvorkin]

Of course, Ayn Rand makes heroes of CEOs of giant corporations -- the same people who, in real life, buy these laws and regulations. There's a lesson here, but I doubt you or any other of the legion of Randroids will get it.

I've heard this one before

[slimjim8094]

Wasn't this the charge against the woman in the Megan Meier suicide? As I recall, it didn't work. The judge essentially said that the law was too vague to mean that ToS violations counted as unauthorized access

The DoJ can say whatever want, but they'll have a hard time of it. A federal court set precedent saying the opposite.

Re:Woo hoo!

[Anonymous Coward]

dont forget "prima nocta"

Re:What is going on down there?

[gknoy]

Why is there no pressure to do something, like cap contributions by corporations to political parties, or something, anything?

Because citizens like us can't fund the lobbying necessary to compete with the corporations.

Chilling effect

[Anonymous Coward]

You read stuff like this, and you start to re-evaluate your use of web sites. You come to the realization that "I don't really need this". You could be outside, helping to reduce the obesity factor in the US ever so slightly. You could be doing a lot of other things.

For YouTube, something like this ToS business wasn't even necessary. When Google wanted my phone number, I quit trying to log in. The only lock-in was my favorites. I downloaded the list, and if I really cared about it I could probably host it as a simple list of links someplace else. I don't care that much though.

With Flickr I have a bit more "lock-in"; but even that could be moved with a combination of automated tools and some grunt-work patching gaps in the automated tools.

People will start cocooning like that. The "big web" will become like McDonalds--ubiquitous, inferior, and sufficiently appealing to the masses who don't care.

The "small web" will perhaps work on an entirely different protocols and I suspect it already does (IRC?). I'd move there, but I haven't reached that tipping point yet. Also, the "small web" has the risk of there being "illegal content" on it and being labeled as a crime itself by TPTB.

Well, we've done it. We've gotten to the point where we need samizdat. Is it totalitarianism yet?

Criminals, Felons, all

[Anonymous Coward]

I am now convinced that the only purpose for Government is to pass enough laws to make felons out of the entire population.

Re:Good

[SuricouRaven]

They'll prime the precidents first with a test case sure to go their way. An easy way to do that would be to just charge someone who downloaded child porn with computer fraud as well for violating ToS. Pedophiles are so powerfully loathed by judges and juries alike, they'll just go with 'guilty' without a second thought just to add to the punishment. Then the precident can be used in other cases.

Re:Woo hoo!

[sconeu]

Southpark did it first, and better.