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Appeals Court Rules TOS Violations Aren't Criminal

Posted by Soulskill on from the by-reading-this-you-agree-to-not-commit-felonies dept.

Trepidity writes "In a decision today (PDF), the Ninth Circuit Court of Appeals ruled that the Computer Fraud and Abuse Act 'does not extend to violations of use restrictions,' and therefore violating terms of service and corporate use policies is not a federal crime. Law profesor Orin Kerr cheered the decision, but since three other Courts of Appeals have reached opposite decisions, it might be heading to the Supreme Court."

13 of 120 comments (clear)

  1. Corporations don't make law by Anonymous Coward · · Score: 5, Insightful

    And therefor, violating a TOS can't automatically be seen as criminal activity. Kudos to the Ninth Circuit Court of Appeals for having their head on straight.

    1. Re:Corporations don't make law by Anonymous Coward · · Score: 3, Insightful

      Unfortunately the 9th Circuit is the most overturned court in the USA. I'm not having high hopes that the SCOTUS will affirm the ruling.

    2. Re:Corporations don't make law by Anonymous Coward · · Score: 5, Insightful

      Which is exactly what I said.

      What you said was deceptive and someone pointed out that deception. Saying you intended to deceive people don't help.

    3. Re:Corporations don't make law by Anonymous Coward · · Score: 3, Insightful

      Did you not understand the parent's post at all? It doesn't matter that you 'exactly said something' if you fail to grasp basic mathematics enough to realize that the total number of appeals is fucking meaningless metric by itself.

    4. Re:Corporations don't make law by similar_name · · Score: 3, Insightful

      To apply this same idea to meatspace. If I rent an apartment and my lease says no pets but I have a pet anyway should that make me a criminal? I don't think so. Seems like for a couple hundred years the U.S. has considered it a civil matter and I fail to see why it should be any different on a computer. At the same time if I break into an apartment that is criminal, likewise it should be for a computer. Companies are pushing to make breaking a TOS criminal and that's a very scary thing. Especially when they change it whenever they feel like it.

    5. Re:Corporations don't make law by gnasher719 · · Score: 1, Insightful

      To apply this same idea to meatspace. If I rent an apartment and my lease says no pets but I have a pet anyway should that make me a criminal? I don't think so.

      Let's make that a bit clearer. If your lease says "no pets" but you have a pet anyway, does that make you a trespasser? No. You live there, and as long as you live there you are not a trespasser. You may be in violation of your rent agreement, and the landlord may use this to cancel your tenancy agreement, and then ask you to leave, and if you don't leave the landlord may send bailiffs to remove you, but until they remove you, you are not trespassing.

      On the other hand, you might take your pet rat on a walk, and when you come home you find the locks changed and a notice on the door - if you then break into what used to be your apartment you would be trespassing. Back to cyber space: If you have a Facebook account and you violate their TOS: No crime. If Facebook cancels your account and you hack into their servers to get the account back: Criminal.

  2. Ex post facto by NoNonAlphaCharsHere · · Score: 5, Insightful

    If a corporation can unilaterally change a TOS agreement AFTER someone has signed up for the service (which they do all the time), how can anybody then claim that violating it is a criminal offense?

  3. Re:Can't complain by CanHasDIY · · Score: 5, Insightful

    I think it's hard to tell whether this is good for consumers (because we have the freedom to do what we want with our programs, etc), or bad for consumers (because it makes things less safe for companies). Either way, I'm happy for now, I guess.

    It's not hard to tell at all: being able to throw consumers in jail for ToS violations is most definitely, unquestionably, bad for consumers.

    --
    An enigma, wrapped in a riddle, shrouded in bacon and cheese
  4. Go to SCotUS, Go directly to SCotUS by LostCluster · · Score: 5, Insightful

    A court ruling out of line with three other rulings is certainly a sign that the court wants a higher court to look at this... 3-1 scores don't matter, just that the case got there.

  5. Re:I must be reading something wrong... by CanHasDIY · · Score: 5, Insightful

    Lower courts have held that violating a (basically TOS) is a crime?

    Not just a crime, a felony crime. Which means being convicted of ToS violations not only takes away your physical freedom, but also damages your ability to find a job upon release, makes it impossible to own a gun, removes your right to vote (although some states restore that right after a prescribed period of time), and all the other wonderful disadvantages that come with being a convicted felon.

    Land of the Free, my enslaved ass.

    --
    An enigma, wrapped in a riddle, shrouded in bacon and cheese
  6. Not a TOS by Desler · · Score: 5, Insightful

    Once again a terrible title and summary. This had nothing to do with a TOS. It was about trying to prosecute someone criminally for violating their workplace's authorized access policy.

    1. Re:Not a TOS by urulokion · · Score: 4, Insightful

      No. The fact that is an employer/employee type setup doesn't change a thing. An employee violating a company policy in regards to accessing information they are authorized to to access via their computer credentials isn't a violation of the CFAA. Let's take another CFAA case involving the Social Security Adminstration. Certain employees in the SSA have access to personal information of people in regards to SSN payroll deductions, benefit payouts, etc. They have authorization via their computer credentials to look at virtually anyone's personal information. But the SSA has policies in place they speel out when it is proper to access that personal information. When an employee is working a case that is assignment to them, they policies says they can access personal information about persons related to that case as an example.

      Now if an SSA employee starts to just access information about celebrities or other persons in the new just because they are curious. They would be a clear violation of SSA policy. Remember that the employee's credentials allow access to virtually anyone. The employee used their assignen credentials to access the information. They didn't breach any technological measure to access the measure. They didn't "hack" to gain access to the information. Their access is a violation of SSA policies, may be violations of criminal statutes of misusing government data, violations of the Privacy Act, etc. But their access was not a violation of the CFAA. That was what the 9th Circuit ruled on.

      The 9th Circuit got this one right. Yes, I'm shocked as much as you are. If this ruling goes to the US Supreme Court, I don't think it'll be overruled.

  7. Whoop-de-do, big deal. by istartedi · · Score: 3, Insightful

    So you're not in jail. Big deal. They can still take all your money via the civil courts. Then you're homeless. It's like jail except that the cell has poor climate control and the 3 hots and a cot are unreliable. Nothing will change until civil suits are reformed. For starters, guaranteed right to a jury trial with the possibility of nullification required to be informed to the jury from the bench (not the bench lying and saying that it doesn't exist). Also, reasonable doubt, not prepoderance. Also, no civil trial for the same matter already settled in criminal courts.

    Wow, it might actually be a free country again if we could pull that off. Oh and look, I expressed it in one paragraph that everybody can understand. Just like back in the 1700s. Imagine that!

    --
    For all intensive purposes, "whom" is no longer a word. That begs the question, "who cares"?