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Aaron's Law: Violating a Site's ToS Should Not Land You in Jail
Freddybear writes "Congresswoman Zoe Lofgren proposes a change to the Computer Fraud and Abuse Act (CFAA) which would remove the felony criminal penalty for violating the terms of service of a website and return it to the realm of contract law where it belongs. This would eliminate the potential for prosecutors to abuse the CFAA in pursuit of criminal convictions for simple violations of a website's terms of service."
If the violation of ToS is due to an illegal action like posting things that are illegal both for the location of the site and the poster it should still land into the legal system, but the large volume of ToS violations should at most render the offender a permanent banning from that site or in milder cases a temporary ban.
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
no the power will get to who ever is in the chair and turn them into an a-hole. power corrupts.
---Saying gnome 3 is better than windows 8 not so much a compliment as it is damning with light praise.
While I think this is a good idea, I think that it's really too superficial. It very narrowly addresses a very specific problem with the law.
There are two really great little tidbits I found online that talk about what the actual problems with the law are:
The first link is actually a really great series that provides a very nice explanation for a lot of things about how criminal law works.
Need a Python, C++, Unix, Linux develop
It is high time we rollback the number of crimes that result in felony convictions. The "Get Tough On Crime" era only resulted in overstretched state budgets and the creation of an entire underclass of citizens who are barred from certain employments, voting, etc. just because politicians sought to score political points in order to get re-elected. There is a very stark contrast to what the term "felon" implies with regards to the seriousness or violence of the crime, and the rather lackadaisical manner in which it is applied in the legal context.
Fantastic fucking idea. You know what would have made it better? If it never was a felony to begin with.
Don't mod this up. Common sense doesn't need moderation points. I'm venting.
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I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.
Fails. Firstly other party is unaware of the terms prior to the hand shake and as you will remember from 1st year law school, past consideration is no consideration. Even if they were it still fails for lack of consideration: the other party suffers a detriment both in paying $20 and in shaking your hand, so the consideration only flows in the same direction ... twice. :p
A law, duly enacted, which makes it a felony to violate such ToS, makes criminal procedure apply. That law has to be fixed, and then that particular violation of contract will revert to the normal civil procedure.
I'd probably draw a distinction between when money changes hands relating to TOS-violations, and otherwise. There need to be tools to fight botters, for example.
For every problem, there is at least one solution that is simple, neat, and wrong.
You can get more time for breaking a ToS than for...
- Manslaughter
- Robbing a bank
- Child porn with intent to distribute
among other things. Pathetic.
http://thinkprogress.org/justice/2013/01/14/1441211/killers-slavers-and-bank-robbers-all-face-less-severe-prison-terms-than-aaron-swartz-did/
That is difficult to fix because senior prosecutors use their position to run for office or become a judge while junior prosecutors use their position to become senior prosecutors. Both of these require making a name for yourself. And there are no penalties for overcharging and intimidating defendants because the prosecutor can simply claim that they were following the law and that their plea bargains are reasonable (so reasonable that even innocent people commonly take them /sarc). Congress isn't going to change the laws because they are owned by the corporations. So the public is fucked. Nothing short of a revolution is going to fix this, and even then I am highly skeptical. The rich will loot the system, the politically connected will get away with high crimes (like HSBC and every other bank), and the common man will continue to get shafted. But at least with a revolution, we can occasionally put some of these fuckers against the wall.
Generally, but not always.
Breach of contract is something that is generally settled in civil court but there are some laws which can add criminal teeth to breaches of contract.
misappropriation of trade secrets is a breach of contract which can have contractual, civil, and criminal remedies depending on what's involved.
1) Your navigation to this website is considered agreement to the following terms
2) You shall not view, consider or think about this website
3) Breach of these conditions will result in all your base belong to us.
Think that if you violate a TOS you should land in jail it only makes sense.
--
Note: by reading this comment you agree to pay me a fee of $1,000,000 if the fee is refused I reserve the right to throw you in jail.
Yes, the law is supposed to distinguish between a non-criminal civil dispute between two private parties (Aaron and JSTOR) and a crime which is "an act so horrendous it is against society" - I am paraphrasing a law professor. Aaron's acts don't come close to that. Yet there he was looking at prison.
ArsTechnica has a good article on this case, which quotes Columbia law professor Tim Wu on the appalling behavior of federal prosecutor Carmen Ortiz:
In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest... The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm... Today, prosecutors feel they have license to treat leakers of information like crime lords or terrorists. In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life.
http://arstechnica.com/tech-policy/2013/01/opening-arguments-in-the-trial-of-public-opinion-after-aaron-swartz-death
http://www.newyorker.com/online/blogs/newsdesk/2013/01/everyone-interesting-is-a-felon.html
http://www.guardian.co.uk/commentisfree/cifamerica/2009/nov/17/silverglate-three-felonies-book
Academic publishers have been price gauging universities and students for a long time, but to their credit at least JSTOR had the brains to tell the feds to back off. Oritz should have listened to them. Their behavior is merely greedy. Hers is unforgivable: there is no place in government for public officials who abuse their power and harm the public for their own personal advantage.
http://www.guardian.co.uk/science/2012/apr/24/harvard-university-journal-publishers-prices
http://enculturation.gmu.edu/knowledge-cartels
http://boingboing.net/2010/01/03/prescription-for-con.html
http://academhack.outsidethetext.com/home/2012/ending-knowledge-cartels/
"A law, duly enacted, which makes it a felony to violate such ToS, makes criminal procedure apply. That law has to be fixed..."
The thing is: Congress probably never intended it to apply to a mere violation of TOS. The ultimate problem is that it is vague, and some prosecutors have chosen to interpret it that way.
The central issue is not "How can we prosecutors interpret this law to put more people in jail for worse 'crimes'?" There are actually two other questions here: "What was the intent of Congress?" and "Does that represent justice?"
"The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." -- James Wilson, Founding Father.
Yes, it would have been a terrible precedent to use that law for that purpose, but the fact she escaped any legal responsibility for her predatory behavior is also a terrible precedent. From my POV the US justice system failed to deliver justice in both cases.
And did you exchange a walk on part in the war for a lead role in a cage? - Pink Floyd.
I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.
Even if they were it still fails for lack of consideration: the other party suffers a detriment both in paying $20 and in shaking your hand, so the consideration only flows in the same direction ... twice. :p
Easy fix: switch the places between the hand and the ToS... put the hand in the backpack (detach it if necessary) and offer the ToS to be shaken.
Questions raise, answers kill. Raise questions to stay alive.
I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.
Fails. Firstly other party is unaware of the terms prior to the hand shake and as you will remember from 1st year law school, past consideration is no consideration. Even if they were it still fails for lack of consideration: the other party suffers a detriment both in paying $20 and in shaking your hand, so the consideration only flows in the same direction ... twice. :p
I believe that is how most TOS and EULA's seem to work anyway.
---Saying gnome 3 is better than windows 8 not so much a compliment as it is damning with light praise.
I agree that there are way too many "laws".
It's just unfortunate that in this case this particular "law" cost the life of a very promising young guy.
The damn system did him in.
Muchas Gracias, Señor Edward Snowden !
The Terms of Service are a contract. For breach of a contract you are entitled to economic damages*. You are not entitled to throw the other party in jail. Only the government can imprison people and only when the breach is criminal. See post below.
*JSTOR could have sued him for lost earnings or copyright, but chose not to.
That is some serious bullshit there. The "guilty conscience" thing? Seriously, that's just crap. That is not how people work, and that is not how reality works. There are lots of people who know perfectly well that there is a law they have technically broken, but who do not feel guilty about it at all -- but who might not be surprised to face jail time if a prosecutor happened to pick them to make an example of. The problem with this, apart from the victim-blaming, is that you're assuming that "violated a law" and "guilty" are the same thing in any kind of ethical sense. Similarly, "he knew he was guilty, so the probation he would have recieved was deserved."
This doesn't logically follow, because "deserve" is a moral claim, but you're basing it on the legal system. Legal systems are not moral systems. You can quite easily be fully aware that you have done a thing which is prohibited by a law, but not feel that you deserve jail time for it. Or you might feel that a misdemeanor charge that's in some way related to what you did is justified, but that multiple felony counts aren't.
The fact is, nothing he did merits years of jail time, and the claim that the prosecutor was "asking for" six months minimum security is highly misleading at best. They were, quite clearly, aiming to make an example of him. Look at previous cases Ortiz prosecuted against people who could afford defense teams, and tell me how "deserved" those outcomes were.
Long story short, even if we ignore the fact that he was depressed, this was a crazy thing and your attempts to make it look less crazy are disturbing. The just world fallacy is called a fallacy because it is not actually valid reasoning. Your attempts to make yourself feel okay with the world by pretending that what happens is okay and justified are unpersuasive at best. And yet. We know he was depressed, and we know a fair amount about what depression does to people's ability to evaluate things and make decisions. It's bad enough that prosecutors are trying really hard to make dramatic examples of people by going after huge piles of charges without regard to the actual severity of the underlying acts; cherry-picking for depressed people because they're easier to bully is despicable. So's trying to defend it.
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The guy was a felon
No he was an alleged felon. He had not been convicted of any of the crimes he allegedly committed.
But then since you're posting anonymously, you don't appear to me to be prepared to stand behind the statement you made.
Yes. But the illegality of that action is completely independent from the site's ToS. ToS just do not belong in criminal law. In fact they are there almost nowhere else in the world.
Oh, the beautiful gloss of greality!
Wrong.
Courts have upheld the ToS/EULA contained within a shrink-wrapped bundle in a way unreadable from the outside that states that by opening this bundle you agree to the contents and forfeit any rights to return the merchandise except where covered by warranty. Microsoft used these for a decade.
The correct way to handle the Microsoft EULA was to not open it and by other means access their website, read the EULA there and then you'd still have the option to return everything. Later they simply packaged their EULA in a separate loose pamphlet and only shrink wrap software and manuals.
Actually, most ToS are also 'impossible' - they usually state "...by accessing this site you agree to..." but you need to access the site in order to read that. which means that simply by reading the ToS you agree to them.
"For every complex problem, there is a solution that is simple, neat, and wrong." -- H.L. Mencken (1880-1956) --
Offering 6 months if you accept guilt and waive your right to a Trial V/s We will get you for 50 years. That's as bad as the mafia asking for protection money - Pay $100 a day OR we'll demolish everything in your shop or break your knees.
A larger problem however is the expectation of non-legal laymen to read and agree to what are ostensibly binding TOS contracts.
I have seen TOS contracts that (in non-digital format) would be dozens of pages long. Users simply click "Ok" with the assumption that "There's probably nothing bad in there". But this assumption is clearly false in a large number of cases when one considers privacy and security clauses.
I have seen "Digital trespassing" (which are protected by the DMCA) buried in the TOS carrying agreed monetary damage amounts.
Consider that a TOS could expressly forbid users to use AdBlock and consider all users of AdBlock to be digital trespassers. You say "Bollocks" (as would I, for the record) but that doesn't change the fact that a TOS can say whatever it wants and the law has already decided that online consent to contracts can be binding. (Not to confuse the greater issue with the legality of this one example of course.)
The issue ultimately comes down to:
1) The expectations of lay-people to understand and agree to complex, binding agreements, the vast majority of which are never read.
2) The binding nature of a click-to-sign agreement.
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any trespassing cases based on odd store rules out there??
And let's say there is some whites only rule at one (let just say it's old but is still on the books or say on a sign that may be still up even if it's just for show or history) that can still be used as a part of a Throw the Book at someone in court.