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Amendment: Violation of ToS Should Not Be a Crime 74

Posted by timothy
from the only-partway-to-bill-becomes-a-law dept.
Khyber writes "Three data and security breach notification bills have been approved by the Senate Judiciary Committee, one of which includes an amendment that adds clarity with regards to the Computer Fraud and Abuse Act. These three bills would require businesses to develop data privacy and security plans, and it would set a federal standard for notifying individuals of breaches of very sensitive personally identifiable information, such as credit card information or medical records. This clarification is welcomed, making the statute more focused towards hackers and identity thieves, instead of consumers that run afoul of ToS or AUPs of websites and service providers."
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Amendment: Violation of ToS Should Not Be a Crime

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  • Kind of obvious, isn't it? Is any other breach of contract a crime?

    • by snowgirl (978879)

      Not directly, but if the other party obtains a court order to enforce a provision of a contract (specific performance), and you disregard that order, then it's contempt of court... a proper example would be someone who would violate an NDA, and then refuses to stop violating an NDA after they get a court order telling you to shut up.

    • Re: (Score:3, Insightful)

      by KingBenny (1301797)
      do you mean like , do EA and Sony have the right to oblige you not to sue them once you click the button ? in some cases massive corporations need to be held in line, doesnt that America have this great stuff about monopolies and such in place already ? If any company can just ask you to waver your basic rights once you click yes, something is wrong, you can't expect everyone to be (and here i'm afraid to use a word since words are ofthen the beginning of an explosive situation) enough to read the fine prin
      • by blueg3 (192743)

        do EA and Sony have the right to oblige you not to sue them once you click the button

        Even though the ToS might say that, that doesn't make it legally binding, and judges often ignore such phrases. I still don't think they ought to be able to give you the impression that it's true, but eh.

      • Re: (Score:3, Funny)

        by PopeRatzo (965947) *

        in some cases massive corporations need to be held in line

        Dirty hippie. If you feel this way why don't you just go live in some European socialist hellhole.

        Those corporations are the job creators and should be allowed to do whatever they want. Any infringement on their God-given right to do whatever they want is an example of how those islamist demoncrats take away your liberty.

        • by kuhnto (1904624)
          So, if slashdot's TOS required the abandonment of your first born, you would be Fine with that? I Know you just want to post on this site soooooooo bad, that you do not give a flying flip over the TOS until it's too late and the slash van is pulling up outside your house.
        • by rtb61 (674572)

          The governments continued recognition of identity theft and the legislation of a falsehood is basically a licence for corporations to send out fraudulent charges to all those person whom they think are unlikely to notice. When caught out, whoops 'er' identity theft as the excuse for anyone who complains.

          Identity theft is a lie. A individual possibly made a false claim for a credit purchase and the seller failed in their duty of care to properly identify the user of that credit facility. Then seller than

      • "doesnt that America have this great stuff about monopolies and such in place already"

        The corporations made it part of doing business the Washington way for their own people to be put in charge of oversight of these laws -- and people in those positions are given 'cushy' permanent 'retire' positions based on their performance in office after they leave office.

        Washington has been bought and sold by the corps and most people don't care. It seems like a majority of those who care are also a bit on the loony s

        • yea, i also noticed that the people with mad skillz are usually not interested in a position of power, must be some socio-genetic thing and yea, absolute power corrupts absolutely, that's why there is no true democracy to be found anywhere in this world, only the illusion of, overhere we have a particracy , people don't decide laws, they don't even elect people, they vote on parties, and the parties decide who gets the positions. Maybe it's just safer in the shadows and a matter of survival, after all, if y
        • This is not a specifically american problem. Crap will always swim on top of the stream, no matter where on earth you are. (It meight rotate clockwise or anticlockwise, though.) In a highly competetive world you need to be greedy for power to accumulate enough of it to make a difference. In other words: you really have to be a bastard.
      • by hairyfeet (841228)
        Don't worry comrade citizen, if we have learned anything it is that the one group more powerful than the greedy bloodsucking corporations is the greedy bloodsucking lawyers. Expect to see the leeches destroy the whole "click away lawsuits" in court, hell maybe even in congress. Or are you forgetting how many congress critters are greedy bloodsucking lawyers?
        • comrade lol, communism is great in theory, but like the ultimate form of government , its cousin anarchy, it requires a certain degree of global intellectual integrity that has certainly not been achieved yet. It would be nice to get an experimental planet to try it out with a select group of people who could actually live it
    • by Trepidity (597)

      I believe it was justified by a problematic analogy to some physical trespassing type questions. It can sometimes be the case that, if you're granted access somewhere pursuant to an agreement or policy, then it's a criminal offense (trespass) if you access it in a way that doesn't comply with the policy, because the default is no-authorized-access. The attempted analogy is that if you access a computer resource in a way that violates its ToS, your access is unauthorized, so you're guilty of unauthorized acc

    • by mcavic (2007672)

      Is any other breach of contract a crime?

      It depends on what you mean by crime. A binding contract is usually enforceable by law. You won't normally go to jail for breach of contract, but you can certainly be sued.

      • by ppanon (16583)
        I'm pretty sure there are strong definitions of what constitutes a crime. Civil law covers contracts and other arrangements between private parties (including inheritance and other aspects of family law). Criminal Law covers crimes (misdemeanours and felonies), which are generally activities which threaten the basis of civil society (i.e. fraud, theft, violent crimes).
    • by Osgeld (1900440)

      extortion is, which is what most TOS's are, see they never tell you that in order to use a product you bought you need to enter into a legal contract, and of course once you opened said product it instantly becomes used and getting any sort compensation for said product violates their rights. so at this point you either paid 60+ bucks for something you cant use, or you sign their contract.

    • by JoelKatz (46478)

      Yes, breaching a contract is often a crime in analogous cases. If the contract permits you to do something that would be a crime without permission, then breaching the contract can sometimes be a crime.

      Another response to this question gave the example of trespass. If you're permit to access a specific place for a specific reason, accessing that place for another reason may be a crime of trespass. If you rent a car with an agreement to return the car on a particular date, keeping the car well past that date

  • by Mashiki (184564) <mashiki @ g m a i l . com> on Saturday September 24, 2011 @01:41PM (#37503378) Homepage

    Considering we're now seeing companies turn around and simply trying to remove your rights by ToS and EULA I'm sure this will work well. See EA, AT&T and Sony.

  • by Jane Q. Public (1010737) on Saturday September 24, 2011 @01:48PM (#37503442)
    While violations of TOS have ended up in court a bit too much lately, that is the result of overzealous corporations and prosecutors who are kissing their asses.

    In general, courts have consistently found that violations of TOS are not criminal... if for no other reason than that would allow corporations (or anybody else for that matter) to write their own law... which is completely ridiculous.

    What this bill, with the amendment, does is keep these cases out of court in the first place. Which is A Good Thing.
    • In general, courts have consistently found that violations of TOS are not criminal... if for no other reason than that would allow corporations (or anybody else for that matter) to write their own law... which is completely ridiculous.

      Ridiculous to sane people like you and me, but some people think it would be the natural order of things.

      It's funny to read the Greek Sophists (23-24 centuries ago) argue that democratic laws were just a scam where the powerless ganged up to take advantage of the powerful.

      • Democracies have always failed, and always quickly. We do not have a democracy. And I don't mean that in a snide way... it simply isn't. It's a representative Republic.
        • And the world's first democracy was an Evil Empire.

          Not sure what all that has to do with what I posted, though.

        • by Aighearach (97333)

          At the Federal level.

          Here in Oregon we use direct Democracy to decide anything that is controversial, and we have our representative government trained to simply refer anything contentious to the People.

          It hasn't failed, people love it, and it works. Sensible technology choices (paper ballots + optical scanners + snail mail) makes it work smoothly.

          • Certain things do work better at smaller scales, I suppose. Guess that's one thing federalism has going for it.

        • Now there is something I've never understood. We keep trotting around the globe, trying to foist 'Democracy' on various nations, saying how great it is, when we don't even have one ourselves. We have something of a Representative Republic, with democratic aspects, but not a true democracy.
          like Winston Churchhill said: "It has been said that democracy is the worst form of government except all the others that have been tried"
          • by nzac (1822298)

            Come on, democracy is used by the US to install the politically acceptable version of a puppet government in these counties. A democracy is easiest form of government to influence from another country. Neo-cons don't believe in real democracy for these countries.

            There have allegations of vote rigging in Afghanistan where a pro US candidate won.

          • like Winston Churchhill said: "It has been said that democracy is the worst form of government except all the others that have been tried"

            How about this: "gonorrhea is the worst form of venereal disease, apart from all the others that have occurred". That statement is just as true as Churchill's. But neither statement justifies its object (government or venereal disease) as something one should actually want, merely that it identifies the least bad member of the class of such objects.

            Of course, Churchill referred to representative democracy, whose limitations and failings are manifest in the USA end several EU countries. Democracy could al

            • you don't want diseases, rationally you probably want some kind of government so your comparison fails
            • Switzerland does not have a true direct democracy. It is supplemented by a representative Parliament.

              Historically, true direct democracies have always quickly collapsed. They never lasted long at all. And there is no reason to believe they would last any longer today than they have in the past.
          • Churchill _was_ staunchly anti-communist (but was still willing to work with the USSR to deal with the Nazis), but here's another famous Churchill-ism:
            "The best argument against democracy is a five-minute conversation with the average voter."

            • by sgt scrub (869860)

              I'd say staunchly anti-communist, openly anti-democratic, and quietly pro-republic.

              The best argument against a republic is watching 5 minutes of FOX news.

        • Democracies have always failed, and always quickly. We do not have a democracy. And I don't mean that in a snide way... it simply isn't. It's a representative Republic.

          This commonly held phallacy is rather perplexing to non americans. In fact, the US is a democracy. It is not a direct democracy (where citizens vote on each individual issue) but a representative democracy. Let's try to look it up in a dictionary (http://www.merriam-webster.com/dictionary/democracy):

          a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections

          (emphasis mine). Of course, if you come up with your own definition of words you can argue just about anything, but making up the language as you go does not help communication.

          • by hairyfeet (841228)

            Actually if you want to get technical what we have is an oligarchy. You see when "election" time comes you are given the "choice" of richer shitass A or rich shitass B, neither one of which would piss on you if you were on fire if you can't afford 10,000 a plate lunches to bribe...err contribute to their campaign. The sad part if they could just run a picture of Goatse beside the letter D or R and you'd have the same effect, one of the Goatse pics would get more votes than the other followed by it promptly

          • Dictionaries list common usage; they often do not contain technical definitions.

            A pure (or direct as you say) democracy is a government in which everybody votes on everything. What we have can be called "representative democracy", but that is not technically accurate. Its true name is "republic".

            I did not make that up, or pull it from thin air. Look it up yourself.

            By the way: if you want to nitpick about definitions, a "phallacy" would actually mean "a quality of, or state of being, penis". I think
            • Dictionaries list common usage; they often do not contain technical definitions. A pure (or direct as you say) democracy is a government in which everybody votes on everything. What we have can be called "representative democracy", but that is not technically accurate. Its true name is "republic". I did not make that up, or pull it from thin air. Look it up yourself.

              I get your distinction, and from the number of people who post this on slashdot, I also believe you did not make it up yourself. I just think it is a US invention (probably invented by a specific part of the US political spectrum, for reasons I cannot fathom): the rest of the world disagrees, and uses the word democracy mostly to indicate a representative democracy. The wikipedia page on republic offers some insight into this:

              A distinct set of definitions for the word republic evolved in the United States. In common parlance a republic is a state that does not practice direct democracy but rather has a government indirectly controlled by the people. This is known as representative democracy. This understanding of the term was originally developed by James Madison, and notably employed in Federalist Paper No. 10. This meaning was widely adopted early in the history of the United States, including in Noah Webster's dictionary of 1828.

              So this is not such a recent redefinition of the term, but it is indeed a US redef

        • by sgt scrub (869860)

          We have a Jeffersonian Democracy. This is a Democracy balanced by a Republic.

          http://en.wikipedia.org/wiki/Jeffersonian_democracy [wikipedia.org]

      • by sjames (1099)

        It's no wonder that calling an argument Sophistry has come to be an insult.

      • by ppanon (16583)

        It's funny to read the Greek Sophists (23-24 centuries ago) argue that democratic laws were just a scam where the powerless ganged up to take advantage of the powerful.

        To a certain extent it's true. But it's better than the alternative where the powerless revolt, and many of the powerless and powerful die as blood runs in the streets. That generally tend to be bad all around, including for business. Democracy is an uneasy truce between the powerful and the powerless to prevent that from happening, and unfor

  • jury's will have a hard time dealing with ToS or AUPs any ways.

  • Nice to know that de facto laws will hopefully no longer be written by the unelected lawyers writing TOS.
  • Go further, please. (Score:4, Informative)

    by Black Parrot (19622) on Saturday September 24, 2011 @02:06PM (#37503556)

    It's good if they're requiring data privacy plans, but they should also develop some minimal requirements for what those plans say. How many stories to we get every week about someone's EULA claiming they have the right to sell your GPS data, or a corporation taking over another's assets and claiming that it is not held to the privacy agreements that data was collected under?

  • by burris (122191) on Saturday September 24, 2011 @02:24PM (#37503678)

    I have a large garden on my property. In order to benefit the community, I have an agreement with a local school where the students can come and pick vegetables to take home and cook for their own dinner. Each student has to agree to language stipulating that the vegetables are for their own use and violating that term will revoke permission to enter the garden and take vegetables. I catch some students taking baskets full of vegetables and giving them to homeless people at the bus depot so I give them a lecture and tell them they are no longer welcome to enter my garden and take vegetables. The next day I catch the same students in my garden filling up baskets of vegetables so I call the cops.

    Q: should the students be liable for the crime of trespassing?

    • by Khyber (864651)

      Yes, because this is your property and thus this is a property crime, and not some contract violation.

      You, as the owner of the property, said students may come get vegetables.

      You have the right to choose which students may have that privilege of contract, since they aren't old enough to legally be in a contract in the first place (The school would have to enforce punishment on their side for the kid breaking the contract, you would handle trespassing.)

      That's EXACTLY how it worked at my high school greenhous

      • by burris (122191)

        How is that different from a contract that lets you use my computer? The contract is the only thing that gives you permission to use it and using it without permission is a crime, the computer fraud and abuse act.

        • by maxume (22995)

          No. You have your computer connected to an open network and configured to respond to reasonably well formed semi-anonymous requests. The idea that the response is subject to a contract is just ridiculous.

        • by grmoc (57943)

          How is it different to having politician's random falsehoods enter into my brain against my will?
          You can carry these analogies to ridiculous extremes without trying.

          Using the above (access to my brain), the obvious choice is to ensure that the politicians cannot contact my brain by turning off the communications device.

    • by Aighearach (97333)

      I can't tell if you're trolling, or flame-baiting. Would you please clarify?

    • Re:bad analogy? (Score:5, Insightful)

      by Miamicanes (730264) on Saturday September 24, 2011 @03:12PM (#37504010)

      > Q: should the students be liable for the crime of trespassing?

      Yes, because at that point you've explicitly and unambiguously revoked their permission to enter your garden and take vegetables.

      It would be another matter ENTIRELY if you never confronted the students, observed them giving vegetables to the homeless, then escalated immediately to calling the cops the next day by arguing that giving the vegetables to the homeless automatically terminated their permission to enter your garden and take vegetables.

      It sounds like splitting hairs, but it's the difference between making the individual absolutely, explicitly, and unambiguously aware that his permission to enter has been revoked, vs claiming guilt by automatic recursive fiat. The computer analogy would be if Facebook terminated your use due to TOS violations, and you proceeded to take advantage of a security exploit to resurrect your profile and continue using Facebook after they'd told you point blank you were no longer welcome.

      In metaphorical terms, American law isn't binary and digital -- it's analog and gray. Generally speaking, the more obvious you (or a government) makes the boundary between legal and illegal, the more enforceable a law becomes. It helps to have lots of legal resources behind you to back up your position, but at the end of the day, American common law frowns upon insidious illegality. You can have quite a few situations where the students could find themselves in a position where you'd prevail over them in a civil lawsuit, but nevertheless fail to get them convicted of committing a crime. For example, if instead of telling them that they were no longer allowed to enter your garden, you sent an email to the principal of the school and expected HIM to tell them. At that point, you'd have a fairly clear case to sue them (though they'd arguably have an equally clear case to cross-claim the principal for failing to tell them if he failed to do so), but would have a difficult case to make in a criminal trial for trespass (assuming the prosecutor even pursued it).

    • by Nursie (632944)

      Depends. When the ToS is governing the use of the operating system on a machine bought and owned by the people you accuse of violating it (PS3 for instance) things get a whole lot muddier and less clear cut.

      An online service may fit your analogy, a whole load of situations covered by ToS do not.

    • by sgt scrub (869860)

      The judge would hear, "I banned the defendants from my property". Under the law, in 49 states, he/she would have to find the students guilty of trespassing -- baring evidence to the contrary. In Texas he/she would also be obligated to retain the students. The district clerk would then be obligated to press legal charges for theft. This is why it is illegal to have such a clause. Once you have entered into a humanitarian agreement involving real property, which btw requires permission from the state, y

    • Now assume that you have a sign that says trespassers will be shot. So you blow one of their heads with a double barrel shotgun, for a few vegetables.

      But everything is fine because you had a sign/TOS right?

      Maybe it would have been better to let the courts decide what is FAIR if someone stole a lot of your vegetables. As far as I know stealing is still a crime. Enforce the current rules, rather than making new stupid laws. Paying you back and community service maybe...

      This way you don't have to clea
    • by sorak (246725)

      Analogy:

      I have a fruit stand. Someone comes to me to buy apples. I sell them a bag off apples. But, when they open the bag, it contains a note that reads:

      Consumer:
      By consumption of this product, you agree to the following terms:

      1. There are no guarantees that this is really an apple. It may be a pear, a peach, or something I found in the trash.
      2. This may not be safe to eat. I didn't poison this, or inject it with heroin, but if any of that stuff happens to be there, it isn't my responsibility.
      3. No refunds. You agreed to pay for the apple, or whatever is in this bag. You can't take it back.
      4. If you decide to sue, you can't.
      5. If some hippy judge says you can, then we get to choose the jurisdiction.
      6. We reserve the right to take this apple back, at any time we want, and replace it with something else.
      7. You agree not to do anything interesting with this. That includes baking, converting it into a bong, pipe, or other recreational device, or throwing it in a manner that we may disapprove of.
      8. By opening this bag, you have agreed not to communicate any information about the contents of the bag, or the transaction without my approval.
      9. You did not purchase an apple product. You have paid for an apple delivery service, contained on a non-product medium. This loophole allows me to circumvent many consumer protections that apply to products, and services.

      Enjoy!

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