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"

[Quiet_Desperation]

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

So what were you high on? ;-)

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"

[Anonymous Coward]

The Attorney General is appointed by the administration, and I think operates very closely with the administration. Probably has a lot to do with the fact that the DOJ is responsible for the ATF, DEA, and FBI.

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

[Nickodeimus]

Go back to Civics class. DOJ is executive branch. Its headed by the Attorney General of the United States. This position is appointed by the President.

Thus, Obama is Holder's boss and can [to my knowledge] fire him at will.

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

[elrous0]

The Department of Justice is part of the Executive Branch, not Judicial.

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"

[Rob the Bold]

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.

Isn't it more an expansion of corporate power to give companies the right to make their own laws? If violating TOS is a crime, then a TOS is effectively law. The government's expansion is secondary to this. Theirs is the power to prosecute more "crimes" -- by broadening the definition of crime -- but it's the aggrieved party that has to report the crime in the first place, e.g. Microsoft, Arm & Hammer, Ford . . . whoever wrote the TOS in question.

And I'm pretty disappointed with the administration, too.

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

[Knuckles]

Normally not a grammar nazi, but this is the second time I saw the difficult to pronounce and redundant neologism "corporatocracy" used on Slashdot, and yesterday was the first time. So before this gets out of hand, can we please stick to plutocracy, oligarchy, and plutarchy, like we have for the past few millenia?

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"

[blair1q]

It's pretty clear it should be some sort of a crime, and carry penalties concomitant with the harm that could be caused.

I just don't think that the way they're frankensteining the legal precedents together is very skillful. So I'd agree it won't hold up in court, at least, not until someone drafts a law that spells out exactly what they're going for here, instead of overbroadly applying two different concepts.

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. When the facility gained by impropertly using that website is used to commit crime against someone, it's an aggravating circumstance in the proximate crime.

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.

As for your questions: yes, if the agreement between Facebook and the website says so, it can export its TOS to whoever imports its API; and yes, but how are you going to get Jeff Bezos to visit your site? Email is not the World Wide Web. BTW, there's already a law against spam, and you can get Jeff Bezos to send you hundreds of dollars for every coupon you didn't somehow ask for (though just visiting Amazon.Com may be enough to constitute asking for them; see its TOS).

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

[AK Marc]

Because the old terms never conceived of "plutarchy of artificial non-citizen people", especially when it is the interests of the corporation that are looked after, even more than the real-people owning them (an insane result, but hey, that's what we get, right?).

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

[fortapocalypse]

Tire sealant.

That was pretty specific. Is this a reference I am not understanding?

Have you ever done tire sealant? No? That's why.

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"

[Knuckles]

"plutarchy of artificial non-citizen people".

Corporate oligarchy.

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"

[Cutting_Crew]

looks like i picked the wrong day to quit sniffin glue.

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

[squiggleslash]

Obama. No question.

With Bush, there was the perception something could be done about it. There was an opposing side, that didn't always do the right thing, but occasionally stood against the extremes.

Obama stood as that, stood as "Change", and then gave us a big "Fuck you". Essentially, what we know now is that it's going to take decades to actually get someone in power who's not a right wing (pro-war, pro-torture, pro-extrajudicial killings, pro-corporate, anti-worker) extremist. Decades. Because there's no good reason to believe that the next jackass the Democrats put up will be any less extreme than Obama.

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"

[Grishnakh]

It's almost like Obama was really a plant, put there just to destroy the Democratic party by getting him elected on a populist platform and then screwing over everyone he voted for, so they'll never vote Democrat again.

Except that none of the other Democrats have come forward to publicly disown Obama from their party, and they've all been working hand-in-hand with him, so they're all complicit.

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"

[khallow]

Thus, Obama is Holder's boss and can [to my knowledge] fire him at will.

Why Obama hasn't yet done so is a mystery to me. There's some pretty crazy stuff coming up the pipeline from the "Fast and Furious" scandal.

It's off topic, but I'll explain a little. The program "walked" guns (via drug cartel smuggling networks) into Mexico without a) keeping track of the guns, b) informing Mexican authorities, or c) ending the program (the last two points differentiate it from a similar failure during the Bush administration). Then a federal law enforcement officer died in a shootout that included two guns from this program.

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

[Curunir_wolf]

Obama stood as that, stood as "Change", and then gave us a big "Fuck you". Essentially, what we know now is that it's going to take decades to actually get someone in power who's not a right wing (pro-war, pro-torture, pro-extrajudicial killings, pro-corporate, anti-worker) extremist. Decades. Because there's no good reason to believe that the next jackass the Democrats put up will be any less extreme than Obama.

Quit getting so hung up on political parties. There is a candidate right now that is anti-war, anti-torture, anti-extrajudicial killings, anti-multinational corporate privilege, AND that has a long record of backing up his stated position with consistent stance and voting record. But he's trying to get the Republican nomination. Check it out some time.

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

[Nadaka]

The entire democratic party sucks. But they suck less than the republicans. You should note that the Republican party has also been weakened by the Tea Parties brinkmanship, just as much as the democratic party has been weakened by its own failures.

I think the disillusionment with Obama's false hope and change is part of what is feeding into the Occupy movement. Occupy has a higher approval rating than the Democratic party, and the Republican party and the Tea Party. Its going to take more than a year to organize, but I am not entirely pessimistic that a true populist liberal movement is taking shape and could threaten both parties as they exist now.

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"

[justin12345]

Sorry to reply to my own post, but there is another reason that unauthorized access and trespassing shouldn't be treated the same: physical presence and intent. In order to trespass I believe you have to know you are doing so and be physically present, hence the need for no trespassing signs. But it's completely possible to access a website by accident.

One of my old coworkers once got our office IP address banned by Google. He had decided to *ahem* automate his porn collection by writing a recursive spider to collect .jpg files from porn thumbnail sites based on certain keywords. Unfortunately one of the links lead back to Google, the spider was multithreaded and went nuts, and it started querying Google so fast that it violated Google's ToS. It was never his intention for his porn spider to pound Google, but thanks to a little stupidity it did, and under this he'd be a criminal (instead of just a moron).

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

[dkleinsc]

I'm going to assume you're referring to Ron Paul. He and John Huntsman seem to be the only Republican candidates who have been showing signs of sense.

There are some big problems though:
1. Neither Paul nor Huntsman have a chance of winning the nomination, because those same corporations that they refuse to kowtow to are the ones who are providing campaign funding and media mouthpieces. For examples of this phenomenon, see the various campaigns of Dennis Kucinich (only truly notable question sent his way during primary debates: whether he'd seen a UFO), or the very intentional derailing of Howard Dean's 2004 campaign using some clever sound editing.
2. A lot of Paul's positions that don't have to do with war, torture, civil liberties, etc are likely to spark disagreement. For instance, the gold standard prevents the Federal Reserve from mitigating the effects of economic slumps and bubbles, and tends to benefit creditors (i.e. big banks) at the expense of debtors.
3. Even if they got into office, they'd still have to get their proposals through Congress. Right now, Congress and the Senate in particular will quite happily gut any major bill except those that enrich corporations at the expense of poor and middle-class people.

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"

[siride]

People have been trying to control wealth and power of the world for a lot longer than 200 years.

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

[Spad]

On the upside, if he did get elected president it would be a huge boon for small torture business owners.

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

[armanox]

ex post facto.

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

[squiggleslash]

There is a candidate right now that is anti-war, anti-torture, anti-extrajudicial killings...

Sure there might be one perceived as being that, and likewise there are on the left too. However, NONE OF THEM WILL BE A CANDIDATE FOR PRESIDENT.

The lesson from Obama is that even if someone CLAIMS to be against those things, if he actually gets nominated, he WILL not be that man.

Buddy Roemer? Ron Paul? None have a fighting chance, and frankly, the former probably doesn't mean it, and the latter certainly doesn't mean what you think he does.

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

[chrismcb]

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

It is pretty clear that it should NOT be a crime

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.... you don't have a right to use any particular website, especially any that is private property

I'm not sure I agree with that. That is sort of like say a billboard is private property, and you don't have a right to look at any particular billboard. The act of putting a website onto the internet gives everyone a certain amount of liberty to access that website. If you want to limit the users of the website, you need to put up a closed door. If you own a piece of land, and you don't fence it off nor post keep out/no trespassing signs, it may be legal for people to access your land.

There are already laws that make it illegal to "break" into a "closed door" site. But we don't need laws to make it illegal to break a contract. That is a civil matter, not a criminal matter.

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"

[Mashiki]

Oh it's much, much worse than that once you start looking into. You know being a canuck, I really didn't believe the whole conspiracy thought that the F&F scandal was an attempt at restricting the 2nd amendment. Those gun nuts though? They were spot on call it as it was, especially when you see how much Holder had his hands in it.

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

[nurb432]

The Obama administration was doomed at the onset

I disagree. It was the American Public that was doomed.

privilege of having a thought(tm)

Only approved thoughts...

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

[ancientt]

Well that changed.

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.

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

[Thing 1]

Would you have to abide by Facebook's ToS on every site with a "Like" button and a FB tracking cookie?

Alternately: would you have to abide by a judge's ruling to share passwords with the spouse who you're divorcing, if this will violate Facebook's ToS and submit you to even more judicial scrutiny?

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

[vux984]

You told me to re-read the thread... so here i am, and this even more wrong, imo.

But agreements still carry weight, and if you violate an agreement and that means you have to consider yourself banned and then you access the website afterward, whether you've been not to or not, then you fall under the law regarding unlawful acess of a computer.

If I break an agreement, i should "consider my self banned"?

My local pool has a set of rules for using the facility. No running, no diving, no children unattended, no bubblebath or oils in the hottub...

So if I run for any reason, should I "consider myself banned", and by remaining at the facility I should be charged with criminal trespassing even though nobody asked me to leave? Seriously?

I don't think it should in all cases, but if you're doing it to harass someone, then it's an aggravating circumstance in the harassment.

Harrassment is a crime. Let them be charged with harassment. That ought to be enough.

So it's not automatic that if the courts apply the law this way to a case where someone harassed someone else into suicide it means that you can be jailed just for logging into a machine after violating some minor clause in the agreement.

Why? If I rob a bank and use my car as a getaway vehicle. They can come after me for robbing the bank. But it would be idiotic to have a law on the books that made letting the parking meter run out on your car a CRIME, just so that if someone ever robs a bank down the road, and then parks there car at an expired meter... that they can be arrested and tossed in jail for that.

And then rely on the courts and prosecutors to only enforce the whole "toss them in jail" part of the law only when the perpetrator is a bank robber.

That's absurd.

Woo hoo!

[Skidborg]

/goes off to create websites with demented ToS.

Re:Woo hoo!

[Aryden]

Be sure to include:

1. Souls of first born
2. Cancellation Fees
3. Cow bell

Re:Woo hoo!

[Quiet_Desperation]

By reading this site, you agree to pay the website owner $1 per word. The fact that this term is displayed with white text on a light beige background does not invalidate it in any way.

Re:Woo hoo!

[Chowderbags]

I'd ask what your new website would be named, but Slashdot's own terms of service say:

Prohibited activity includes, but is not limited to: (...) using any information obtained from SourceForge.net in order to contact (...) any user without such user's prior explicit consent (including non-commercial contacts like chain letters);

Oops, I guess replying at all is already contacting.Shit, I think I hear FBI vans.

Re:Woo hoo!

[Anonymous Coward]

dont forget "prima nocta"

Re:Woo hoo!

[brit74]

Funny, I was thinking the same thing.

The Devil: "I invented the TOS agreements. You ever say "yes" to those TOS agreements without reading it first? See you soon, buddy!"
http://www.hulu.com/watch/299647/saturday-night-live-weekend-update-the-devil-on-penn-state

Re:Woo hoo!

[joocemann]

Who is 'Thou'?

Is there any expectation that legal terms be written in a language that people use?

Re:Woo hoo!

[sconeu]

Southpark did it first, and better.

Re:Woo hoo!

[Requiem18th]

Now you are just getting silly. You must be joking, it's obvious a person can't make outrageous demands in their TOS and expect them to be fulfilled. A corporation on the other hand...

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

[SJHillman]

I'm confused. Do I have to keep sacrificing goats or not?

Re:TOS, EULA

[Isaac Remuant]

Another point to add is that almost all of them look like job contracts. They basically save every and all rights because you're the one interested in using the service and not the other way around.

Sometimes they do this just to be on the safe side (legally speaking) but that
still feels wrong and forces very easily breakable ToS on users.

quote from Salon.com ToS.
(so full of lawyerly jargon that makes you want to shoot the writer/s)

By posting or otherwise providing a Submission, you grant Salon the
right to reproduce, modify, adapt, publish, broadcast, license, perform, post,
sell, translate, incorporate, create derivative works from, exploit, distribute
and otherwise use the Submission in any and all media, now known or hereafter
devised, throughout the universe, in perpetuity, without according you any compensation. Salon will generally attribute Submissions to their authors, but you understand and agree that it is not obligated to do so, and you release and waive any right to have Submissions attributed to you. You also understand and agree that Salon has no obligation to publish or use any Submission in any way, and that Salon may remove or revised any Submission that has been posted, published, or distributed on or through the Site in its sole discretion.

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

[joocemann]

There is another option.... people will be forced to avoid sites that have a ToS that is more than a couple sentences long. Nobody has the time, or the lawyers, necessary to fully understand these crappy terms anyway... Everyone assumes that if they do right by any normal civil expectation, that they won't be in trouble.

Again, business wins. Thanks for nothing, Obama. I'm glad you didn't pretend to be pro-life and do nothing about it like a Republican, but you did pretend to be for the people, and have done almost nothing about it.

Re:TOS, EULA

[John Bresnahan]

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-

Man! I wish I had read your entire post before sacrificing this flock of goats!

Re:TOS, EULA

[Oswald McWeany]

Besides traffic crimes, I am not aware of any crime I have committed.

However, that said, I am almost certain I must have committed a felony at some point in my life- there are so many laws- and so many I don't know- it is inconceivable to think I have not unwittingly committed one at some point in my life.

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).

It would be easy for a website to trip you up and prove it if they like.

There is also a difference between government passing rules- and corporations passing arbitrary complex TOS to getcha.

I vote for my congressman. I don't vote for the operator of goatsdoingcrazythingstosheep.com

Re:TOS, EULA

[Kjella]

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.

The first one.

Re:TOS, EULA

[frank_adrian314159]

Oddly enough, the phrase "throughout the universe" is not an uncommon one anymore, at least in publishing and entertainment. I first stumbled across it in articles about recording contracts. I've seen it adopted in more and more places, as it seems to be an easy way to characterize "If I try to list them all, I'll forget one, so, no, I don't want to specify particular regions into which I can dump your crapola". Yeah, the "universe" part does seem a bit of overkill but, on the other hand, it does add that bit of cosmic surreality to the licensing experience. By now it's probably standard in all content licensing contracts.

Re:TOS, EULA

[blair1q]

No. But you do need to use more allspice in the gumbo.

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".

Re:TOS, EULA

[pjt33]

As long as the ToS don't say that I have to buy the goats I'm going to argue that I was quite willing to do it and it's CmdrTaco's responsibility to ensure that the goats he ships me for sacrifice arrive.

Re:TOS, EULA

[Grishnakh]

I vote for my congressman. I don't vote for the operator of goatsdoingcrazythingstosheep.com

Irrelevant. The Invisible Hand will ensure that everything is perfectly fair and just. In fact, we'd all be better off if we just eliminated our democratic government, and replaced it with a corporation, as The Invisible Hand will force it to behave much more responsibly than any government ever could.

Re:TOS, EULA

[modecx]

Well, suppose one of these sites wants to broadcast something over a radio link. Now suppose that the transmission was also intercepted and decoded by those damned criminal Tau Cetians, who then pirate your uber-cute cat video to the little grey guys who hang out at HD 10307, where it becomes a instant sensation with eleventy-billion views. It's possible, I guess.

Re:TOS, EULA

[camperdave]

Besides traffic crimes, I am not aware of any crime I have committed.

Ever used a patented device without obtaining permission from the patent holder?

"Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. http://www.law.cornell.edu/uscode/35/271.html Bolding mine.

What is going on down there?

[iONiUM]

I live in Canada, and while we aren't without our problems as well, the headlines coming out of the US lately, including this one, are just ridiculous.

What is the problem? Since when did the government become so extremely pro-corporation, and anti-citizen? Why is there no pressure to do something, like cap contributions by corporations to political parties, or something, anything?

For the people, by the people? What happened to that.

Re:What is going on down there?

[Desler]

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

There have been attempts to do so. They get struck down by the corporatist supreme court.

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.

Re:What is going on down there?

[alexo]

I live in Canada, and while we aren't without our problems as well, the headlines coming out of the US lately, including this one, are just ridiculous.

More ridiculous than bill C-11?
Because criminalizing the ripping of a legally purchased DVD to play it on your optical-less netbook (since you have to "break" CSS to do that) is the epitome of Canadian values?

Re:What is going on down there?

[TheRaven64]

Why not? In 2008, Obama spent $7.39 per vote. McCain spent $5.78. As with every recent US Presidental election, the winner was the one who spent the most. $7.39 per voter really isn't that much. If you can convince voters to spend $10 on getting a president who works for the people, then you can outspend both parties. If you can persuade 5% of the electorate to give $100, then that's enough (based on past performance) to buy 50% of the popular vote...

Your politicians are bought and sold, but for far smaller sums than you seem to imagine.

Re:Enough

[GameboyRMH]

Surely the next guy will be different!

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.

Re:It's all about power

[gknoy]

I know many might jump on you for paraphrasing Ayn Rand, but I think you're correct. We've already seen that such rules ARE abused, and that almost any potential lawbreaking has been used as a foothold for surveillance or other actions which impact us as citizens.

Re:It's all about power

[BigSlowTarget]

And even if you can defend yourself you'll probably go broke doing so. We've left behind the rule of law and moved to the rule of simple power.

Re:It's all about power

[Anonymous Coward]

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.

Same as it ever was.

"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to 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 nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."

- Ayn Rand, Atlas Shrugged, 1957.

After Attorney General and eventual Supreme Court Justice Robert H. Jackson, put it ca. 1940:

"With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him."

The only thing that's changed in the intervening 70 years is that in 1940, this sort of thing was regarded by the Judicial and the Executive branches as a bad thing.

Re:It's all about power

[hoggoth]

My father was a cop, and he would tell us this exact thing. There are enough laws that they (the cops) could find some laws anyone has broken and basically arrest anybody they wanted at any time.

Re:It's all about power

[TheRaven64]

It's not really an idea unique to Ayn Rand. The Catholic Church, Nazi and Communist parties all used it before she did. In Nineteen Eighty-Four, the party knew you were guilty and so did you, the question was only what you were guilty of and how serious it was.

Re:It's all about power

[lgw]

I recently read Atlas Shrugged. As I recall these were the major themes:

1. Winners focus on results, and believe success should be rewarded; losers focus on intentions, and believe effort should be rewarded.
2. Winners try to prevent problems; losers try to prevent blame.
3. An organization dominated by losers will often fail to deliver on whatever it was organized to do.
4. Winners tend to exit organizations dominated by losers.
5. The work of the mind is more valuable than the work of the body (the least valuable work is doing only and exactly what you're told).

There was some more stuff that only appeared in Galt's 100-page rant, but I suspect few readers slogged all the way through that.

What things do you "strongly disagree with"? Or are those things in some other book?

Re:It's all about power

[DavidTC]

I'll step forward and say I strongly disagree with pretty much all of that as a political philosophy.

It's pretty pretentious as a business leadership philosophy, but could be mangled into some actual shape.

The problem is the government is not a fucking business. It does not exist to 'reward effort'. And it is not a fucking 'organization' in that sense of the word.

Here's, let's just dissect this single line: Winners focus on results, and believe success should be rewarded; losers focus on intentions, and believe effort should be rewarded.

What, exactly, is success for the government? Not having people die in the streets? So the government...reward themselves for that? Or the voters reward them by reelecting them? But that's other people rewarding them, not them rewarding people.

It's complete and utter gibberish as a political position.

As a business philosophy, it's a half-assed version of what is usually called 'result-oriented leadership'. Except that it's decided that magically everyone is either competent or incompetent and the way to solve the problem is to...um...quit your job if you're in charge of incompetents, which is not really a functional leadership style.

And it's utter FAIL in the last line...every job is exactly as important as that specific job is, no more, no less. Everything that is done should be considered as an independent entity. Assuming that certain types of work are more important than others in general is a very good way to make a huge management mistake when you discover that the menial mail-delivery job you just cut back introduced delays throughout the entire company.

New ToS clause

[tdelaney]

The following acts are considered violations of these Terms of Service. Additional acts may be considered violations at the owner's discretion.

1. Being a member/employee of the United States Department of Justice.

2. Being a member/employee of the RIAA and/or associated organisations.

3. Being a member/employee of the MPAA and/or associated organisations.

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.

Re:Obigatory: Ayn Rand

[orphiuchus]

If you'd actually read Atlas Shrugged you would know that the corporate heads who buy these laws and regulations are portrayed as villains.

Remember the anti dog-eat-dog law? No?

Re:Obigatory: Ayn Rand

[MobyDisk]

Ayn Rand makes heroes of CEOs of giant corporations -- the same people who, in real life, buy these laws and regulations

Actually, the book makes both heroes and villains out of those CEOs. In her world, there are 2 types of CEOs. Some are the ones that build the company up from nothing, who value the product and the quality of the creation. The others are the financial analyst/legal types who do it for the power. While Ayn Rand oversimplified everyone to being either black or white, don't accuse the her of glorifying corporations - for every "good" CEO in the Atlas Shrugged there are 100 "bad" CEOs.

Re:Obigatory: Ayn Rand

[Daniel Dvorkin]

If you'd actually read Atlas Shrugged you would know that the corporate heads who buy these laws and regulations are portrayed as villains.

I've read it. And yes, I remember her cartoon-villain evil CEOs, and her cartoon-hero good CEOs. And I know which type exists in the real world.

Re:Obigatory: Ayn Rand

[atticus9]

The book made villains out of CEO's that used laws to get money, and it makes heroes out of CEO's who worked like crazy to achieve their goals and make money off it. In real life you have shades of grey, but buying regulations is not something a "randroid" would ever support.

Re:Obigatory: Ayn Rand

[lgw]

I've read it recently. All those cartoon villains are frightenly believeable now. This was not the case 30 years ago (or I was to young to be this cynical, one of those).

Eric Holder is a cunt.

[Anonymous Coward]

In other news: Generalissimo Franco is still dead.

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:Enough

[GungaDan]

Dear crispy jeezus, really? You might want to take a remedial civics class yourself. DOJ is an Executive Branch office, run by an Obama-appointed cunt by the name of Eric Holder.

Re:Enough

[ClioCJS]

Yes, He can fire anybody at the DOJ whenever he wants. There may be political repercussions, but he has that power. It was established by SCOTUS the first time a president fired a postmataster general. And you can bet that if you have the ability to fire someone, you certainly have the ability to control the direction of their efforts, either directly or indirectly.

Vote third party

[betterunixthanunix]

Stop voting for Republicrats. Neither party gives a damn about your rights, they are both working hard to establish tyranny and have been largely successful over the past few decades.

Re:Vote third party

[phreest]

We have to get a critical mass to vote third party, and not for the tea party corporate whores. That will be hard in a country of followers who are woefully under-educated and largely ignorant. Most Americans can't even understand that 68% of corporations pay no income tax whatsoever whilst everyone else is in the 28 - 35% bracket except those who are already rich and live off dividends at 15%. Making people aware of DOJ crimes is going to be substantially harder than getting them to understand the tax code. My feeling is we are doomed due to our own ignorance.

Re:Vote third party

[AK Marc]

Yes, they are, hence why he said "Republicrats", one of the more common lumpings of the two together. There is no difference, other than the preferences in how they screw us first.

Re:Vote third party

[TheRaven64]

See, this is what is wrong with American politics. The grandparent said don't vote for the Democrats or Republicans, vote for a third party. To which you reply 'the Democrats are just as bad'. It's as if the idea of doing anything other than voting for the Red or Blue team is so alien to American voters that it won't penetrate their brains.

Reminder!

[joocemann]

Laws should work FOR the people whose government represents them.

This whole fiasco reminds me, clearly, that business has priority over citizens in the US. Getting sick of this place more and more as the constitution and the purpose of our government has faded into the corrupt benefit of greed and exploit.

What's up with the DOJ?

[travdaddy]

The DOJ sure is responsible for a lot of recent crazy stories lately:

They're the department that bought the $16 muffins. link

They claim that Willie Nelson's song The Gambler is proof that online poker is illegal (yes, you read that right).link

And now a ToS violation is a crime.

Maybe the DOJ needs to be brought to justice.

It's just politics, so it's all OK, right?

[mounthood]

There was a time when I would have seen this as simple politics: appease the wealthy donors and corporations, but in the end the politicians don't follow through, or if they do it's struck down in court. Both sides know the game, both sides get something out of it [1], and in the end it doesn't matter too much. No harm, no foul. It's just politics.

But this isn't just politics: corporations creating law by TOS? That's the definition of corporatism. In the future we should expect this precedent to be used by auto manufacturers, home builders, coffee baristas, etc...

[1] The benefits to wealthy donors and corporations are: control of the conversation (setting the boundaries of 'reasonable' discussion), some laws passed in their favor (even if it takes them a long time), their interests are always addressed first during uncertain times (like with new technology).

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.

Gaming TOS/EULA

[DroolTwist]

World of Warcraft alone will fill up juvenile detention facilities around the country with all the TOS violations from teenagers.

Orin Kerr's testimony opposing the CFAA...

[Freddybear]

http://volokh.com/2011/11/14/my-congressional-testimony-on-the-need-to-narrow-the-computer-fraud-and-abuse-act/

http://cdn.volokh.com/wp/wp-content/uploads/2011/11/Testimony-of-Orin-S-Kerr.pdf

" The current version of the Computer Fraud and Abuse Act (CFAA) poses a threat to the civil liberties of the millions of Americans who use computers and the Internet. As interpreted by the Justice Department, many if not most computer users violate the CFAA on a regular basis. Any of them could face arrest and criminal prosecution.

        In the Justice Department’s view, the CFAA criminalizes conduct as innocuous as using a fake name on Facebook or lying about your weight in an online dating profile. That situation is intolerable. Routine computer use should not be a crime. Any cybersecurity legislation that this Congress passes should reject the extraordinarily broad interpretations endorsed by the United States Department of Justice.

        In my testimony, I want to explain why the CFAA presents a significant threat to civil liberties. I want to then offer two narrow and simple ways to amend the CFAA to respond to these problems. I will conclude by responding to arguments I anticipate the Justice Department officials might make in defense of the current statute."

Minors can use google without issue

[thechemic]

Quote from google TOS, "2.3 You may not use the Services and may not accept the Terms if (a) you are not of legal age to form a binding contract with Google, or (b) you are a person barred from receiving the Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Services." So what is a binding contract? Quote from lawyers.com, "A minor (usually, a person under 18 years of age) who makes a contract can rescind or void it, with one general exception. A minor contracting for "necessities" is bound to pay for their reasonable value. A "necessity" can be food or shelter but, depending upon the law of the particular state, it may also include cars or other items." So let's put it to the test. Can google sell a minor "necessities"? YES Therefore can a minor enter into a binding contract with google? YES. The google TOS does not specify what services and products it is refering to when it discusses binding contracts. Therefore, because google could feasibly sell a minor "necessitous" services or products, then a minor can therefore feasibly enter into a binding contract with google: thus satisfying the terms of service. By the means of this test, any minor can use google's products and services (including google+)

Void for vagueness

[BigSlowTarget]

Sounds like all those computer laws - which now by proxy include all TOS - are begging to get thrown out.

http://en.wikipedia.org/wiki/Void_for_vagueness

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.

Recent facebook password swapping

[witherstaff]

If a judge orders you to break the law, what happens? The recent case with the judge requiring the divorcing people to swap facebook passwords - if you don't, you're in contempt. If you do, you're breaking the law. So who should one follow?

You cannot visit this website

[phoenix0783]

I am going to create a website with a ToS that states "You cannot visit this website"

Re:Enough

[dkleinsc]

Well, if the next guy is named "Shirley", he might well be "different".

this *has* to be FUD

[ffflala]

In a statement obtained by CNET that's scheduled to be delivered tomorrow, the Justice Department argues...

This interpretation is so obviously wrong, both in terms of common sense and as a textbook example that I suspect it's simply author Declan McCullagh trolling for outrage and click-throughs, perhaps unintentionally. Arguing that a violation of a private contract between two parties should be criminalized is simply not something a person who has passed any state bar --or a 1L criminal law course-- could make.

I'd like to see the "statement obtained by CNET", but of course it's nowhere to be found. All we have is McCaullagh's interpretation of it. I think... I hope... he's simply misreading the statement. It's convenient that they do not provide the source for which this article is entirely based upon.

Punish the crime, not the tools

[mangu]

it would be idiotic to have a law on the books that made letting the parking meter run out on your car a CRIME, just so that if someone ever robs a bank down the road, and then parks there car at an expired meter... that they can be arrested and tossed in jail for that.

This is spot on. Unfortunately, both sides of the debate commit the same mistake. One often sees people in civil liberties organizations worried about surveillance cameras, for instance.

The problem should be illegal surveillance, not the cameras. The difference between a plainclothes police officer standing at a corner and a surveillance camera is how effective the watcher can be. If it's legal for the officer to watch a street no one should complain about a camera doing the same. A camera increases the effectiveness, but the same is true of binoculars or hand held cameras.

I think any such allegations about creating a special situation for automated surveillance weakens the arguments for civil liberties in computer use. A crime is a crime, no matter which tools are used. This should be true no matter who is accused of the crime, law enforcement or common citizen.