Forgot your password?
typodupeerror
Crime United States Your Rights Online

DOJ: Violating a Site's ToS Is a Crime 536

Posted by samzenpus
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."
This discussion has been archived. No new comments can be posted.

DOJ: Violating a Site's ToS Is a Crime

Comments Filter:
  • by elrous0 (869638) * on Tuesday November 15, 2011 @02:24PM (#38063412)

    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.

    • by Quiet_Desperation (858215) on Tuesday November 15, 2011 @02:29PM (#38063490)

      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? ;-)

    • by justin12345 (846440) on Tuesday November 15, 2011 @02:35PM (#38063616)
      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?
      • by sconeu (64226) on Tuesday November 15, 2011 @03:01PM (#38064200) Homepage Journal

        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.

      • by interval1066 (668936) on Tuesday November 15, 2011 @03:02PM (#38064220) Homepage Journal
        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.
      • by alexo (9335) on Tuesday November 15, 2011 @03:07PM (#38064316) Journal

        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?

        That depends on the amount of legislators and executives you can afford to buy.

      • by Thing 1 (178996) on Tuesday November 15, 2011 @10:24PM (#38069830) Journal

        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?

  • Woo hoo! (Score:5, Funny)

    by Skidborg (1585365) on Tuesday November 15, 2011 @02:26PM (#38063452)
    /goes off to create websites with demented ToS.
  • TOS, EULA (Score:5, Insightful)

    by Oswald McWeany (2428506) on Tuesday November 15, 2011 @02:30PM (#38063492)

    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.

    • Re:TOS, EULA (Score:5, Interesting)

      by Isaac Remuant (1891806) on Tuesday November 15, 2011 @02:46PM (#38063902)

      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. [salon.com]
      (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.

      • Re:TOS, EULA (Score:5, Interesting)

        by frank_adrian314159 (469671) on Tuesday November 15, 2011 @03:03PM (#38064234) Homepage

        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.

    • Re:TOS, EULA (Score:5, Insightful)

      by gknoy (899301) <gknoy@NospAm.anasazisystems.com> on Tuesday November 15, 2011 @02:50PM (#38063992)

      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".

    • Re: (Score:3, Interesting)

      by joocemann (1273720)

      There is another option.... people will be forced to avoid sites that have a ToS that is more than a couple sentences long. Nobody has the time, or the lawyers, necessary to fully understand these crappy terms anyway... Everyone assumes that if they do right by any normal civil expectation, that they won't be in trouble.

      Again, business wins. Thanks for nothing, Obama. I'm glad you didn't pretend to be pro-life and do nothing about it like a Republican, but you did pretend to be for the people, and have d

    • 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-

      Man! I wish I had read your entire post before sacrificing this flock of goats!

    • by Kjella (173770) on Tuesday November 15, 2011 @03:00PM (#38064182) Homepage

      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.

      The first one.

    • by pjt33 (739471)

      As long as the ToS don't say that I have to buy the goats I'm going to argue that I was quite willing to do it and it's CmdrTaco's responsibility to ensure that the goats he ships me for sacrifice arrive.

  • by iONiUM (530420) on Tuesday November 15, 2011 @02:30PM (#38063494) Homepage Journal

    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.

    • by gknoy (899301) <gknoy@NospAm.anasazisystems.com> on Tuesday November 15, 2011 @02:45PM (#38063874)

      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.

      • Why not? In 2008, Obama spent $7.39 per vote. McCain spent $5.78. As with every recent US Presidental election, the winner was the one who spent the most. $7.39 per voter really isn't that much. If you can convince voters to spend $10 on getting a president who works for the people, then you can outspend both parties. If you can persuade 5% of the electorate to give $100, then that's enough (based on past performance) to buy 50% of the popular vote...

        Your politicians are bought and sold, but for far

    • by alexo (9335)

      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.

      More ridiculous than bill C-11?
      Because criminalizing the ripping of a legally purchased DVD to play it on your optical-less netbook (since you have to "break" CSS to do that) is the epitome of Canadian values?

  • by TheSpoom (715771) <slashdot@@@uberm00...net> on Tuesday November 15, 2011 @02:32PM (#38063532) Homepage Journal

    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.

    • by gknoy (899301)

      I know many might jump on you for paraphrasing Ayn Rand, but I think you're correct. We've already seen that such rules ARE abused, and that almost any potential lawbreaking has been used as a foothold for surveillance or other actions which impact us as citizens.

      • It's not really an idea unique to Ayn Rand. The Catholic Church, Nazi and Communist parties all used it before she did. In Nineteen Eighty-Four, the party knew you were guilty and so did you, the question was only what you were guilty of and how serious it was.
    • And even if you can defend yourself you'll probably go broke doing so. We've left behind the rule of law and moved to the rule of simple power.

    • by Anonymous Coward on Tuesday November 15, 2011 @02:55PM (#38064088)

      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 [roberthjackson.org], 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.

    • by hoggoth (414195)

      My father was a cop, and he would tell us this exact thing. There are enough laws that they (the cops) could find some laws anyone has broken and basically arrest anybody they wanted at any time.

  • by tdelaney (458893) on Tuesday November 15, 2011 @02:32PM (#38063546)

    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.

  • by Anonymous Coward on Tuesday November 15, 2011 @02:33PM (#38063572)

    "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."

    • by Daniel Dvorkin (106857) on Tuesday November 15, 2011 @03:05PM (#38064284) Homepage Journal

      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.

      • If you'd actually read Atlas Shrugged you would know that the corporate heads who buy these laws and regulations are portrayed as villains.

        Remember the anti dog-eat-dog law? No?

        • If you'd actually read Atlas Shrugged you would know that the corporate heads who buy these laws and regulations are portrayed as villains.

          I've read it. And yes, I remember her cartoon-villain evil CEOs, and her cartoon-hero good CEOs. And I know which type exists in the real world.

          • by lgw (121541)

            I've read it recently. All those cartoon villains are frightenly believeable now. This was not the case 30 years ago (or I was to young to be this cynical, one of those).

      • by MobyDisk (75490)

        Ayn Rand makes heroes of CEOs of giant corporations -- the same people who, in real life, buy these laws and regulations

        Actually, the book makes both heroes and villains out of those CEOs. In her world, there are 2 types of CEOs. Some are the ones that build the company up from nothing, who value the product and the quality of the creation. The others are the financial analyst/legal types who do it for the power. While Ayn Rand oversimplified everyone to being either black or white, don't accuse the her of glorifying corporations - for every "good" CEO in the Atlas Shrugged there are 100 "bad" CEOs.

  • by slimjim8094 (941042) <slashdot3NO@SPAMjustconnected.net> on Tuesday November 15, 2011 @02:38PM (#38063692)

    Wasn't this the charge against the woman in the Megan Meier [wikipedia.org] 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 [wikipedia.org]

    The DoJ can say whatever want, but they'll have a hard time of it. A federal court set precedent saying the opposite.

  • by joocemann (1273720) on Tuesday November 15, 2011 @02:44PM (#38063850)

    Laws should work FOR the people whose government represents them.

    This whole fiasco reminds me, clearly, that business has priority over citizens in the US. Getting sick of this place more and more as the constitution and the purpose of our government has faded into the corrupt benefit of greed and exploit.

  • by travdaddy (527149) <travo AT linuxmail DOT org> on Tuesday November 15, 2011 @02:45PM (#38063862)
    The DOJ sure is responsible for a lot of recent crazy stories lately:

    They're the department that bought the $16 muffins. link [yahoo.com]

    They claim that Willie Nelson's song The Gambler is proof that online poker is illegal (yes, you read that right).link [gpwa.org]

    And now a ToS violation is a crime.

    Maybe the DOJ needs to be brought to justice.
  • by mounthood (993037) on Tuesday November 15, 2011 @02:46PM (#38063892)

    There was a time when I would have seen this as simple politics: appease the wealthy donors and corporations, but in the end the politicians don't follow through, or if they do it's struck down in court. Both sides know the game, both sides get something out of it [1], and in the end it doesn't matter too much. No harm, no foul. It's just politics.

    But this isn't just politics: corporations creating law by TOS? That's the definition of corporatism. In the future we should expect this precedent to be used by auto manufacturers, home builders, coffee baristas, etc...

    [1] The benefits to wealthy donors and corporations are: control of the conversation (setting the boundaries of 'reasonable' discussion), some laws passed in their favor (even if it takes them a long time), their interests are always addressed first during uncertain times (like with new technology).

  • by Anonymous Coward on Tuesday November 15, 2011 @02:50PM (#38064002)

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

  • by DroolTwist (1357725) * on Tuesday November 15, 2011 @02:50PM (#38064006)
    World of Warcraft alone will fill up juvenile detention facilities around the country with all the TOS violations from teenagers.
  • by Freddybear (1805256) on Tuesday November 15, 2011 @02:53PM (#38064054)

    http://volokh.com/2011/11/14/my-congressional-testimony-on-the-need-to-narrow-the-computer-fraud-and-abuse-act/ [volokh.com]

    http://cdn.volokh.com/wp/wp-content/uploads/2011/11/Testimony-of-Orin-S-Kerr.pdf [volokh.com]

    " 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."

  • by BigSlowTarget (325940) on Tuesday November 15, 2011 @02:56PM (#38064106) Journal

    Sounds like all those computer laws - which now by proxy include all TOS - are begging to get thrown out.

    http://en.wikipedia.org/wiki/Void_for_vagueness

  • by ffflala (793437) on Tuesday November 15, 2011 @05:39PM (#38066920)

    In a statement obtained by CNET that's scheduled to be delivered tomorrow, the Justice Department argues...

    This interpretation is so obviously wrong, both in terms of common sense and as a textbook example that I suspect it's simply author Declan McCullagh trolling for outrage and click-throughs, perhaps unintentionally. Arguing that a violation of a private contract between two parties should be criminalized is simply not something a person who has passed any state bar --or a 1L criminal law course-- could make.

    I'd like to see the "statement obtained by CNET", but of course it's nowhere to be found. All we have is McCaullagh's interpretation of it. I think... I hope... he's simply misreading the statement. It's convenient that they do not provide the source for which this article is entirely based upon.

The ideal voice for radio may be defined as showing no substance, no sex, no owner, and a message of importance for every housewife. -- Harry V. Wade

Working...