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Violating TOS now legally the same as hacking
myspace ruling could open a new can of worms

 6:17 pm on Dec 1, 2008 (gmt 0)

It will be interesting to see how the appeal goes. This could turn the internet into a legal mess.

Web site terms of service, which end users universally ignore, suddenly have teeth: violating them is a federal hacking offense, punishable with jail time. The days of being able to freely lie on the Web could be coming to an end. This could mean serious trouble for people who lie about their age, weight, or marital status in their online dating profiles.

The important fact is that there is no federal cyberbullying statute, so the U.S. attorney in Los Angeles turned to a novel interpretation of existing computer hacking laws to try to punish the woman. The general idea is that in creating terms of service, a Web site owner specifies the rules of admission to the site. If someone violates any of those contractual terms, the "access" to the Web site is done without authorization, and is thus hacking.




 6:34 pm on Dec 1, 2008 (gmt 0)

Wow talk about a stretch,

This is like if you used fake id to get into a bar and were charged with "break and entering"

I could see maybe a trespassing charge but "hacking" should mean that you circumvented some type of security measure not that you entered a site on false pretenses.

I could see it as fraud maybe but this is an agreement between a site and a user, sometimes even a customer and a vendor, if I agree to change my oil every 3 months as part of my terms of service with my car lease and I fail to do that it is a civil matter I am not going to be charge with theft of a vehicle... am I?


 6:41 pm on Dec 1, 2008 (gmt 0)

Some else I found that is even more scary right from MySpace's TOs

MySpace users agree that the social networking site has the final say on deciding whether content posted by users violates a long list of regulations contained in the agreement.

Which means they have the final say, if you used a computer and connect to their server and they say you are in violation of their TOS there is no recourse because they decide if you are in violation and if you are you can go to jail.

[edited by: Demaestro at 6:41 pm (utc) on Dec. 1, 2008]


 6:44 pm on Dec 1, 2008 (gmt 0)

That's too big a stretch.

It should make for an easy appeal, a website that allows people to access it freely without filtering users in any way can't expect to be legal to begin with. A child might wander onto such a site for example.

If a child wanders into a bar would they be served alcohol? The same measures that make sure that doesn't happen (like common sense) don't exist online. The site might be breaking the law in this scenario as well.

The suit is frivolous in my opinion because it should be the responsibility of the WEBSITE, not the visitor, to ensure full accuracy and with complete accuracy these circumstances can't happen to begin with.

[edited by: JS_Harris at 6:45 pm (utc) on Dec. 1, 2008]


 7:03 pm on Dec 1, 2008 (gmt 0)

Cool, so now scrapers violate federal law by not honoring the TOS or the robots.txt

Party time...


 7:20 pm on Dec 1, 2008 (gmt 0)

On the other hand, entering a site and using their services without adhering to their TOS is analogous - in some circumstances - to using a false identity or acting with fraudulent credentials. If I tell someone I'm a doctor, and present fake credentials of a doctor and someone then lets me do things that doctors are allowed to do, I'm the criminal.

But "violated a TOS" is like saying "broke a rule" - it's too vague a collection of potential infractions to call the entire class of infractions serious or frivolous. It could be a serious crime, or a ridiculous waste of time. A court would have to decide on a case-by-case basis.

Adult pedophile creates a child persona online to engage with children. Crime?
Dating site participant doesn't reveal that they are actually married. Crime?
Facebook user lists their gender as female, when they're actually a dude. Crime?
Social media butterfly lies about their weight. Will it Blend?

How about those TOS contracts you signed when you started using AdSense. Did you actually read it all? I did... once upon a time... but I forget what was in it.

The problem with this MySpace case is a judge now has a precedent for bringing out the big guns against anyone who clicks "I agree" at the bottom of a 10-page legal "mumbo-jumbo". A lawyer who is out for blood could pull this precedent out and use it to incriminate on otherwise unprosecutable offenses.

But that's the key - they used this awkward legal maneouvre to prosecute someone who *did* do something awful, but who would otherwise have been unprosecutable. They felt it had to be done, and found a way to do it.

I guess a relevant question is... do you trust the legal system to be fair?

@JS_Harris, I'm surprised to hear a webmaster advocating that a WEBSITE be responsible for verifying the accuracy of user-entered personal information. That's a dangerous opinion IMHO


 7:24 pm on Dec 1, 2008 (gmt 0)

The point nobody has mentioned yet is that this will make all TOS subject to very careful court examination for constituionality, legality, etc, and since most are questionable legally but go untested by the courts, this is probably NOT what many companies will want.

Having courts determine your TOS is non-binding, or irrelevant is akin to having those shrink wrap software agreements pronounced as garbage.


 7:37 pm on Dec 1, 2008 (gmt 0)

Personally, I'm glad they found a way to prosecute this woman. What she did was really heartless.


 7:59 pm on Dec 1, 2008 (gmt 0)

Wasn't there an article a couple of months ago about how companies, such as Apple, violate their own TOS (if you read carefully). Does that mean that if I install iTunes on my computer and then Apple violates the TOS I can sue Apple for hacking?


 8:44 pm on Dec 1, 2008 (gmt 0)

The US Dept. of Justice defines Hacking as “All illegal access to a computer or a network”.

the question would be whether to deem unauthorized access to a free social network 'illegal.'

doubt it


 8:49 pm on Dec 1, 2008 (gmt 0)

What she did was really heartless.

Without question... but was it illegal?

Like you said they "found" a way to prosecute her but the problem is they had to manufacture and stretch the law in order to do so and I don't think the possible implications of this decision are worth it.

People do messed up things and while I am outraged by her behavior I am not convinced it was illegal.

Morally disgusting.. yes, but not illegal.

My neighbor cheated on his cancer stricken wife when I was 15 and she took her own life.... I am just as disgusted by this women as I was with my neighbor but he wasn't charged with anything because what he did was horrible but not illegal.

She has to live with herself and trust me for the rest of her life people will be pointing and talking bad about and she will never live this down no matter where she goes. Much like her victim. I know that isn't enough for most but it is all the law seems to allow for in this case.

[edited by: Demaestro at 8:51 pm (utc) on Dec. 1, 2008]


 8:50 pm on Dec 1, 2008 (gmt 0)

as an adendum, if you gained access by agreeing to the tos you have obtained legal access; i am not sure how violating the terms of service can make that once granted legal access illegal.

it's like getting locked up during prohibition for selling beer prior to prohibition;


 8:55 pm on Dec 1, 2008 (gmt 0)

they say you are in violation of their TOS there is no recourse because they decide if you are in violation and if you are you can go to jail.

There is a recourse--the legal system. A web site can't act as prosecutor, judge, and jury all rolled up into one! Even if this interpretation holds, if a web site accused someone of hacking, they would still have to persuade a prosecutor to pursue that person, and that prosecutor would have to get an indictment, go to trial, and win a unanimous conviction from a jury. The courts are clogged already! How often is that going to happen?


 9:45 pm on Dec 1, 2008 (gmt 0)

Google terms state: "You may not use Google's products, software, services and Web sites...and may not accept the Terms if...you are not of legal age to form a binding contract with Google."

The ruling will have to be overturned or else the courts will be declaring millions of high school students criminals because they searched for something or set up an email account.

I expect to see a new set of internet rules coming down the pipeline soon, let's hope they don't package them with the "internet reset" some groups have been pushing too.


 9:45 pm on Dec 1, 2008 (gmt 0)

Umm, hello!

No Google ad may be placed on pages published specifically for the purpose of showing ads, whether or not the page content is relevant.

Rule: Google TOS [google.com]

Breaking of Rule: Google breaking their own TOS [google.com]


 9:57 pm on Dec 1, 2008 (gmt 0)

Thinking about some of these replies leads me to think that our legal system is more broken than I thought it was. We shouldn't have to twist irrelevant existing laws to convict people of crimes.
Extending relevant existing laws is one thing. For example, if there was an actual non-internet bullying law that could be extended. IANAL but I don't think there is any kind of law against being really mean to people.
In fact a kid at my high school that was constantly picked on committed suicide. Everyone knew he had been picked on and felt horrible, especially the people who had picked on him the most (they will have to live with that forever), but no one was charged with a crime. Maybe there should be a law that helps prevent this sort of thing but there isn't, AFAIK.
It shouldn't be legal to go around twisting laws that affect EVERYONE to punish one horrible person just because it happened on the internet.


 10:00 pm on Dec 1, 2008 (gmt 0)

How often is that going to happen?

Probably only when a government, company, or person with a lot of money really wants to single you out to silence you, inconvenience you, ruin your business or your reputation, or whatever. Sound good?


 11:22 pm on Dec 1, 2008 (gmt 0)

As far as I am concerned the “I agree” click is not a binding legal document
We have made it believe it is!
I had about two or three years ago my biz attorney checking out for a client dealing with really private data (health related) how legal is the “check that stuff if you agree”
Well, only online signature is considered legally correct.
Not the system using your mouse to draw a signature, but a system (similar to hyper market CC signing) that requires quite an investment and for the client side it calls for a download; not an easy system, again this was two or three years ago, now there might be something better on the market, but nevertheless
“I agree” is not/was not considered as an officially binding doc.


 12:34 am on Dec 2, 2008 (gmt 0)

I think community operators will welcome anything that adds teeth and credibility to their TOS. Most have to deal with various kinds of abuse, and this might give a few would-be abusers pause if it became widely known.


 12:48 am on Dec 2, 2008 (gmt 0)

physics, there is a law against being really mean to people. It is called harrassment.

On the other hand, looking for justice in the legal system (where I spend my day job) is fruitless. I call it the Criminal Injustice system anymore.

I am reminded of words written several thousand years ago...

The kind man does something,
yet something remains undone.
The just man does something,
and leaves many things to be done.
The moral man does something,
and when no one responds
he rolls up his sleeves and uses force.

When the Tao is lost, there is goodness.
When goodness is lost, there is morality.
When morality is lost, there is ritual.
Ritual is the husk of true faith,
the beginning of chaos.

~Lao Tzu


 2:37 am on Dec 2, 2008 (gmt 0)

I'm going to add a no-robots rule to my TOS and afterwards I'll sue google and yahoo and anybody else.... God, finally I'll be richer than Richie Rich!


 2:58 am on Dec 2, 2008 (gmt 0)

Groklaw's take on the implications of the ruling [groklaw.net] is really scary... and if I just violated the TOS by posting that link, please don't prosecute... just delete it .oO


 3:29 am on Dec 2, 2008 (gmt 0)

Most TOS are just blunt instruments, wielded when convenient on whims on more than anything else. Worthless lawyer trash for the most part as well IMO.

Truth be told, I rarely read a TOS. I just click okay and go.

How about setting up a TOS, requiring acceptance, and also requiring acceptance and download of data miners and all kinds of bad goodies.....TOS can be used like they came down from the mount if users has option of agreeing and does.....


 3:35 am on Dec 2, 2008 (gmt 0)

I swear I am handsome! :)


 6:08 am on Dec 2, 2008 (gmt 0)

I applaud the effort and the intent of the effort in this specific case, but we cannot assume that any and every TOS will make sense, be fair, and be well-intentioned. Any webmaster could lay traps or be just plain lame in the construction of the TOS and end up with the right to go after anyone.

Good idea in theory, but some standards would need to be applied to TOS' before this approach makes any sense at all, or as already noted, the whole thing falls apart.

True, one cannot just construct an illegal TOS, but there may be a wide gap between a poorly constructed or cleverly misleading TOS, and an illegal TOS.

Though I'm reluctant to suggest it, I cannot help but wonder if there is not at least the possibility of some enlightened legislation, to advance the cause of common sense and still add teeth to Web site TOS statements.


 6:32 am on Dec 2, 2008 (gmt 0)

Sounds like the USA just became a 3rd world country.


 9:28 am on Dec 2, 2008 (gmt 0)

Adult pedophile creates a child persona online to engage with children. Crime?

Well that one is a criminal offence on this side of the Atlantic.


 9:38 am on Dec 2, 2008 (gmt 0)

Finally we are getting somewhere. Terms of Services are good, but as has been frequently shown, who is auditing the companies that are implementing them, and who is safeguarding those that are being bound by them. Multiduristictional issues and the lack of international mechanisms make this the next phase in the Internet's evolutionary cycle.


 4:16 pm on Dec 2, 2008 (gmt 0)

Has anyone read the TOS for an Apple product recently? Found this one for my iPod and I-tunes:


IMHO, if you find a way to run a nuclear facility or fly an aircraft with just an i-Pod and i-Tunes, you shouldn't be prosecuted under the law, you should be celebrated as a genius.
*Note: I am aware that this is meant more for Apple's OS, not peripheries...still funny, though.

My point here being: Major corporations which sell directly to end-users seem to have these 'one-size fits all' TOS policies. These policies make note of some insanely hilarious topics which appear to have little if nothing to do with the actual product. Should I then be wary of absolutely everything? What if my doctor creates a TOS saying that any service he provides to me puts me in direct violation of his TOS. Would I then have to serve jail time as a result of pursuing the doctor for malpractice or negligence?

Also, what about the warning labels on things like aerosol cans? Those always say stuff about 'using this product in a manner other than expressly defined' or 'using this product in a manner inconsistent with its labeling is a violation of federal law', etc. That appears to be a catch-all label for many products by man manufacturers -- one which you can actually be prosecuted under -- with some teeth, but it is, IMHO, selectively applied. Same deal with internet TOS? Apply it only when it makes sense for an individual case?


 5:33 pm on Dec 2, 2008 (gmt 0)

Undoubtedly, this ruling will be further refined. Certainly this doesn't mean you can put any ridiculous thing in your TOS and have it enforced by the courts.

As a site operator, though, I am frustrated by the limited remedies available to pursue those who would abuse your site - using your site to post or send spam, posting false reviews for commercial gain, harrassing other users, etc. I'd certainly welcome a bit more law on my side.

This 39 message thread spans 2 pages: 39 ( [1] 2 > >
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