Aaron's Law: Violating a Site's ToS Should Not Land You in Jail 246
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."
Re:Depends on... (Score:5, Interesting)
This is more along the lines of a sites ToS stating "You shall not offend anyone for any reason"
This is justification for being banned from the site, NOT justification for going to prison.
Currently, it is a federal crime to "offend someone for any reason" if that is listed in the sites ToS. Or to put it another way, all I have to do is claim your statement offends me and oops you just committed a felony.
This change is simply trying to remove that insanity.
Re:Felony Abuse (Score:3, Interesting)
Well we are talking about some serious crimes here. 6 months divided by 13 felonies is like what, 14 days each?
Yeah, maybe at least a year for a federal case, or its disproportionate to call it a felony and ruin a guy's life over.
Re:Depends on... (Score:4, Interesting)
But if you do something that is legal (like say give your password to your spouse) but is against the TOS, that should NOT land you in the legal system. Any more than any other breach of contract. Seems like a big case of "DUH" to me.
Re:Just make assholes illegal! (Score:2, Interesting)
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.
Conduct of Federal Prosecutor Carmen Ortiz (Score:5, Interesting)
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 [guardian.co.uk]
http://enculturation.gmu.edu/knowledge-cartels [gmu.edu]
http://boingboing.net/2010/01/03/prescription-for-con.html
http://academhack.outsidethetext.com/home/2012/ending-knowledge-cartels/ [outsidethetext.com]
Re:Depends on... (Score:5, Interesting)
In the UK for example, it is illegal to access a computer system without the owner's permission. You could argue that the TOS set out the terms under which the owner is prepared to give permission to access their system, and if you violate them, you don't have permission to access the site, and are therefore breaking the law. I guess it is much the same in the US.
How do you deal with that? How do you draw the line between a website that is clearly open to the public and an intranet site that is only open to selected people?
Re:Depends on... (Score:3, Interesting)
It should be fairly amusing to see you attempt to extradite people who violate your TOS.
Re:Unfortunately, this "law" cost a life (Score:5, Interesting)
Is there a larger issue here though? (Score:5, Interesting)
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.
Re:any trespassing cases based on odd store rules? (Score:2, Interesting)
Not entirely. Disregarding properly posted notice is enough to trigger an arrest for trespassing. If you go wander into... say, MIT's server closet with a big "PRIVATE" sign on the door... the president of MIT doesn't have to come down to the server closet to let you know you're trespassing and ask you to leave. Unintentional trespass - say, wandering onto a farmer's land while taking a walk - would generally not have anything in the way of legal liability, though the farmer could STILL call the cops and get them to remove you from his property.
Actually, they would make you leave. If the owner of the store (or his duly appointed representative) wants you to leave, then he has the legal standing to have you removed from the store by law enforcement - he doesn't have to give you a reason. If you feel his reasons are discriminatory, you can certainly file a civil suit against him after you've been removed, but the police are not judges or juries or lawyers - If you own the property, you get to determine who can be there.