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DOJ: Violating a Site's ToS Is a Crime

Posted by samzenpus on from the who'd-click-without-reading? dept.

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."

44 of 536 comments (clear)

  1. Wow, I first read that as "*isn't* a crime" by elrous0 · · Score: 5, Insightful

    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.

    --
    SJW: Someone who has run out of real oppression, and has to fake it.
    1. Re:Wow, I first read that as "*isn't* a crime" by Quiet_Desperation · · Score: 4, Funny

      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? ;-)

    2. Re:Wow, I first read that as "*isn't* a crime" by justin12345 · · Score: 5, Insightful

      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?

      --
      Cool art gallery, if you're into that sort of thing.
    3. Re:Wow, I first read that as "*isn't* a crime" by Nickodeimus · · Score: 5, Informative

      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.

    4. Re:Wow, I first read that as "*isn't* a crime" by Tsingi · · Score: 5, Insightful

      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.

    5. Re:Wow, I first read that as "*isn't* a crime" by Rob+the+Bold · · Score: 5, Interesting

      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.

      --
      I am not a crackpot.
    6. Re:Wow, I first read that as "*isn't* a crime" by sconeu · · Score: 5, Insightful

      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.

      --
      General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
    7. Re:Wow, I first read that as "*isn't* a crime" by interval1066 · · Score: 4, Insightful

      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.

      --
      Python: 'And then suddenly you have a language which says "we're all stuck with whatever the whiniest coder wants".'
    8. Re:Wow, I first read that as "*isn't* a crime" by todrules · · Score: 5, Insightful

      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?

    9. Re:Wow, I first read that as "*isn't* a crime" by Genda · · Score: 5, Insightful

      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.

    10. Re:Wow, I first read that as "*isn't* a crime" by Hatta · · Score: 5, Insightful

      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.

      --
      Give me Classic Slashdot or give me death!
    11. Re:Wow, I first read that as "*isn't* a crime" by Cutting_Crew · · Score: 4, Funny

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

    12. Re:Wow, I first read that as "*isn't* a crime" by justin12345 · · Score: 5, Insightful

      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.

      --
      Cool art gallery, if you're into that sort of thing.
    13. Re:Wow, I first read that as "*isn't* a crime" by EricWright · · Score: 4, Insightful

      So what were you high on?

      Hope

    14. Re:Wow, I first read that as "*isn't* a crime" by similar_name · · Score: 4, Insightful

      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.

    15. Re:Wow, I first read that as "*isn't* a crime" by khallow · · Score: 4, Informative

      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.

    16. Re:Wow, I first read that as "*isn't* a crime" by vux984 · · Score: 5, Insightful

      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.

    17. Re:Wow, I first read that as "*isn't* a crime" by Spad · · Score: 4, Funny

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

    18. Re:Wow, I first read that as "*isn't* a crime" by Tsu-na-mi · · Score: 4, Insightful

      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

      --
      I've built up so much character I have an alter-ego
    19. Re:Wow, I first read that as "*isn't* a crime" by ancientt · · Score: 4, Funny

      Well that changed.

      --
      B) Eliminate all the stupid users. This is frowned upon by society.
    20. Re:Wow, I first read that as "*isn't* a crime" by Thing+1 · · Score: 4, Interesting

      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?

      --
      I feel fantastic, and I'm still alive.
  2. Woo hoo! by Skidborg · · Score: 4, Funny

    /goes off to create websites with demented ToS.

    --
    Supporter of the +1 Over Dramatic mod option. In memory of apk.
    1. Re:Woo hoo! by Aryden · · Score: 4, Funny
      Be sure to include:
      1. Souls of first born
      2. Cancellation Fees
      3. Cow bell
    2. Re:Woo hoo! by Quiet_Desperation · · Score: 5, Interesting

      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.

    3. Re:Woo hoo! by Anonymous Coward · · Score: 5, Insightful

      dont forget "prima nocta"

  3. TOS, EULA by Oswald+McWeany · · Score: 4, Insightful

    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.

    --
    "That's the way to do it" - Punch
    1. Re:TOS, EULA by SJHillman · · Score: 5, Funny

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

    2. Re:TOS, EULA by Isaac+Remuant · · Score: 4, Interesting

      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.

      --
      "Science can amuse and fascinate us all, but it is engineering that changes the world. " - Asimov.
    3. Re:TOS, EULA by gknoy · · Score: 5, Insightful

      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".

    4. Re:TOS, EULA by Oswald+McWeany · · Score: 4, Interesting

      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

      --
      "That's the way to do it" - Punch
    5. Re:TOS, EULA by frank_adrian314159 · · Score: 4, Interesting

      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.

      --
      That is all.
    6. Re:TOS, EULA by MozeeToby · · Score: 5, Insightful

      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".

  4. What is going on down there? by iONiUM · · Score: 5, Interesting

    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.

    1. Re:What is going on down there? by gknoy · · Score: 5, Insightful

      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.

  5. Re:Enough by GameboyRMH · · Score: 5, Funny

    Surely the next guy will be different!

    --
    "When information is power, privacy is freedom" - Jah-Wren Ryel
  6. It's all about power by TheSpoom · · Score: 5, Insightful

    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.

    --
    It's better to vote for what you want and not get it than to vote for what you don't want and get it.
    - E. Debs
    1. Re:It's all about power by Anonymous Coward · · Score: 5, Informative

      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.

  7. New ToS clause by tdelaney · · Score: 5, Funny

    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.

  8. Obigatory: Ayn Rand by Anonymous Coward · · Score: 4, Insightful

    "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."

    1. Re:Obigatory: Ayn Rand by Daniel+Dvorkin · · Score: 5, Insightful

      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.

      --
      The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
  9. I've heard this one before by slimjim8094 · · Score: 4, Insightful

    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.

    --
    I have developed a truly marvelous proof of this comment, which this signature is too narrow to contain.
  10. Criminals, Felons, all by Anonymous Coward · · Score: 5, Insightful

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

  11. Orin Kerr's testimony opposing the CFAA... by Freddybear · · Score: 4, Informative

    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."

  12. Recent facebook password swapping by witherstaff · · Score: 4, Interesting

    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?