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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.
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.
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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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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.
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/
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.
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 system didn't do him in. PEOPLE caused his death. By taking away all other acceptable options.
The powers that be decided he must be "MADE AN EXAMPLE OF". Because "minor maybe crime" on a "computer" (ooo scary! hackers! cyber! oh nos!).
And he was smart enough to realize just how totally screwed he was. Now and in the decades coming of his future.
He took the only option left to anyone who doesn't like rape and a ruined life plus being billed for it. Death.
And the powers that be. Will never miss one night of sleep over it. Nothing will ever happen to them. And they will continue to do this to other people.
The wheels of the american justice machinery grind exceedingly slow and very fine.
Beware you don't get caught in them. Or else death is the only logical option open to you. Unless handcuffs, bars, rape and abuse is your thing.
The "because" probably was more related to that he was a major voice behind the efforts of against sopa/pipa and other movements. That minor maybe crime was the excuse to get it and then try to make an example, you know, like rape charges by someone associated with the CIA. If you go against or scare them, somehow, even for a parking ticket, you will get into deep shit. Taking away a particular tool that they used once don't mean that they are stopped from using them, or any of the other alternatives.
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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Store rules are actually a good way of looking at this sort of thing.
If you do something really obnoxious in a store they can ask you to leave. If you refuse to do so they can call the police. You can of course sue the store for discrimination, and the police might not even make you leave if the basis for the removal is so egregious.
Website TOS's should be similar. If somebody doesn't like what you're doing on their website they should ask you to leave, and if you cooperate then no crime has occurred. Unfortunately that isn't what this law was being used for - imagine if you wear a hat in a store that has a "no hats" policy and the owner just called the police, and they showed up, and then charged you with a felony for violating the store rules.
Trespassing is only trespassing if somebody actually asks you to leave. Now, if you walk into a store and set fire to it then you can be arrested on the spot, but not for trespassing.