Hacker News Board Hacker News, browsed like a classic message board
Live data from Hacker News

Violating Terms of Use Isn’t a Crime, EFF Tells Court

eff.org

Post reply on HN
Print view View original

91–100 of 104 posts

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#91

Post by Silhouette »

cyborgx7 wrote: post #30
maxerickson wrote: post #20

Earlier quoted context omitted.

I don't think ToS should be able to be enforced either So how to deal with abusive users then? Hand wave and say it is okay to block them for certain actions that are not terms of service? And of course arbitrary terms of service already can't be enforced.

If you want a user to agree to something, you ask them if they agree to it and below that have two radio buttons labeled "Yes, I agree", or "No, I don't agree". Neither of them should be selected by default. You do this for every term you want them to agree to, not some general "Do you agree to these terms of service". As long as you don't build this in a way that encourages people to mindlessly go through the list a…

I'd currently consider this, and nothing less, sufficient for informed consent.

You might, but it's doubtful that any court would.

For example, on a web site where you're taking real money in return for providing access to otherwise protected content, your terms and conditions would typically describe a contract, which the parties will enter into once you've offered those terms and your customer has accepted.

As such, the deal would be subject to the same safeguards as any other business-to-consumer contract. For example, here in the UK, there are some conditions that are automatically considered unfair and would not be enforceable, and for digital sales there is certain information you're required to provide at various stages in the purchase process or you risk the deal being challenged.

The flip side is that assuming your terms are reasonable and properly disclosed, they will normally be enforcible like any other B2C contract.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#92

Post by new299 »

pflats wrote: post #84

"Oracle sent Rimini a cease and desist letter demanding that it stop using automated scripts. It did not, however, rescind Rimini’s authorization to access the files outright. Rimini continued to use automated scripts, and Oracle sued. The jury found Rimini guilty under both the California and Nevada computer crime statues, and the judge upheld that verdict—concluding that, under both statutes, violating a website’s…

Interesting, and it sucks because this kind of feels like selective application of a law.

Google probably violates this all the time with automated crawling (I've no doubt that there are sites without robots.txt, but with a written ToS that prohibits use of "automated scripts".

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#93

Post by Silhouette »

Sean1708 wrote: post #44
08-15 wrote: post #18

Earlier quoted context omitted.

I wonder if placing a cookie on my computer without prior written consent constitutes "unauthorized access". Class action anyone?

In Britain it's illegal for a website to store a cookie without informing you, so I have a feeling someone may have already tried this.

No, it isn't. That's not what the infamous "cookie law" says, nor how it's been interpreted in practice by official regulators across the EU.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#94

Post by sportanova »

peeters wrote: post #87

I think in a democracy there should be some group of state attorneys who are not just allowed, but mandated to prosecute the law to the fullest extent possible. For example, if Congress has a law making ToU violations crimes, then there should be a select few DAs who are required to go out and prosecute people who enable AdBlock and visit a certain site. And it should always start with legislators if possible. See ho…

It should be only for legislators. Turn the tables and make them live in fear of what they do to other people

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#95

Post by AnimalMuppet »

gregmac wrote: post #48
codedokode wrote: post #41

Isn't it nice if ToS is legally binding? 1. Make a website and write somewhere in the middle of ToS that visitor must pay $1000 (for example) for every page viewed or for every second spent on a site 2. Persuade him to press "I have read and agree to the ToS" and to stay as long as possible 3. Send a bill

I was thinking I'd add a header to all my HTTP requests: X-Terms-of-Service: This HTTP request is subject to the terms of use published at https://example.com/tos. By responding to this request you are accepting these terms and conditions in full.

Make sure you also say "... and agree that these terms and conditions supercede any other agreements between us."

[Edit: IANAL.]

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#96

Post by shados »

nickff wrote: post #61
rplst8 wrote: post #49

The fact that this has to even be argued is appalling. The erosion of the difference between a tort and crime over the last few decades is very concerning. I think a lot of it started with the changing of copyright law into criminal law.

This is part of a larger situation where everything is becoming criminal law. The Yates and Bond cases illustrated the breadth of the government's use of laws to punish undesirable behaviours, and tens of thousands of regulations have criminal penalties with no mens rea requirement. The government is even using criminal statutes against corporations (not the officers or employees), which doesn't make any sense.

Having recently had my first major experience with US law, Im starting to understand (not agree with. Understand) why this happens.

The US civil laws really only apply to middle class suckers. Rich people can use their lawyers to work around it. Poor people are "judgment proof". If you don't have a house, you're working under the table, and your bank account is empty, there's fuck all people can do against you. With criminal law on the other hand...

There's only so many times you can hit someone who's judgement proof before you start wishing you could get them tossed in jail.

I recently had someone who screwed me over from about a very large amount of money. He was laughing at me in the face making sure I remembered that even if I won a lawsuit against him, I'd never be able to collect. He was unfortunately quite right.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#97

Post by holtalanm »

jahewson wrote: post #70
holtalanm wrote: post #34

Just my opinion, but I think ToS were originally in place to define how a user _should_ use the site, and how the site operators could act in response to violation. I don't think they should be held as even a contract, much less criminal law. Truthfully, they are really only there to protect the company by outlining to the user what might get them banned from the site and so on. Oracle is overstepping its authority h…

ToS is not a contract, it's a license . By default you don't get a free licence to access and copy others' work, and so one has to be granted. Much in the same way that you can't start using someone else's land without their permission and you don't get to say "I never knew" or "I never agreed not to use the land". By default, you are not allowed to and must have that right granted to you and you are expected to know…

ToS is not a license in and of itself.

ToS is used in conjunction with a license usually. And the ToS in that case outlines how that license may be revoked.

I don't think ToS is a license though all by itself.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#98

Post by wahern »

pflats wrote: post #84

"Oracle sent Rimini a cease and desist letter demanding that it stop using automated scripts. It did not, however, rescind Rimini’s authorization to access the files outright. Rimini continued to use automated scripts, and Oracle sued. The jury found Rimini guilty under both the California and Nevada computer crime statues, and the judge upheld that verdict—concluding that, under both statutes, violating a website’s…

The federal law at issue here isn't contingent on the owner delivering a Cease & Desist letter or even taking any affirmative steps whatsoever. No court is going to read that into the law. At best a C&D is evidence of the rescission of authorization, but all the statute cares about is whether authorization existed or not.

Importantly, Oracle didn't actually lock their account. And even more importantly, AFAIU this guy was an employee.

For these and some other technical reasons (I haven't read the case but likely part of it may be related to the jury instructions), the question to be answered by the court really comes down to whether violation of Terms of Service alone suffices to meet the "without authorization" prong of the criminal statute.

If the answer is no then the case goes back to trial. The defendant doesn't get a free pass, it's just that the prosecution will have a slightly higher burden to overcome in showing lack of authorization. Higher in the sense that the burden involves taking into consideration other factors than merely boilerplate policies and notices.

Another way to look at it is, say your boss tells you that you must leave the office at 5PM sharp, and that nobody is allowed to log into corporate accounts after 5PM. This policy is also displayed from /etc/motd everytime you login. You occasionally stay at work late some evenings, accessing the corporate accounts in a typical fashion. One day you're accused of doing something nefarious--maybe you were, maybe you weren't. Is your working after 5PM a prima facie showing that your access was unauthorized? That is, do all they have to show is that corporate policy was not to login at 5PM? Is it rebuttal? Does it matter whether your boss communicated this to you personally?

The way these legal tests work, at least in common law countries, is that you break the law down into predicates. For the law to apply, you must show that each predicate holds. Each predicate is it's own little universe. You don't take other predicates into account; there's often a separate predicate for intent and other overarching context. The predicate here is "without authorization". What does that mean? It's a tricker question than you'd think. And it can't merely mean whatever your boss intended--it has to be an objective standard that doesn't lead to absurd outcomes in the real world. Especially in criminal law, a crime can't turn on someone's subjective intent, except for the intent of the accused. Similarly, specifically in regards "without authorization" not even the accused's intent matters.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#99

Post by a3n »

falcor84 wrote: post #83
a3n wrote: post #67

Earlier quoted context omitted.

I'd like to read that book. cstross? Gibson?

Max Barry's "Jennifer government" comes close. https://en.m.wikipedia.org/wiki/Jennifer_Government?wprov=sf...

From the wikipedia article, wow, what a depressing story. It sounds fascinating, but I'm not sure I can take it at the moment. Thanks for the tip.

Re: Violating Terms of Use Isn’t a Crime, EFF Tells Court

#100

Post by bonyt »

turc1656 wrote: post #82
bonyt wrote: post #75

Earlier quoted context omitted.

Actually, breaking an NDA might be theft of trade secrets, which in certain cases may be prosecuted as a crime. See, e.g. , 18 U.S.C. § 1832[1]. (But, agreed that a ToS violation shouldn't ever be a crime by itself - that reading of the CFAA would give, for example, website operators the power to write criminal law). [1]: https://www.law.cornell.edu/uscode/text/18/1832

True, it could be theft of trade secrets or something else. But that would depend on what you did with the information. Just breaking the NDA by blabbing to someone isn't a crime in of itself, but it is a breach of contract, which is what I was trying to get at.

Yeah, that's exactly right. Theft of trade secrets only applies in a narrow set of circumstances, but a broad reading of the CFAA could be applied to any condition in a TOS, which is why it is way more troubling.
Post reply on HN