US Court to Webmasters : Self validated registration is no deterrent

Michel Snow v. DirecTV - or what do we need to declare a site private?

[Tapolyai]

Michael Snow ran a site "Stop Corporate Extortion", with 'private' discussions on "individuals who have been, are being, or will be sued by any Corporate entity."

To register on Mr. Snow's web site users had to provide an e-mail, user name, and confirming the site Terms of Service (TOS) that they are NOT with DirecTV by clicking on "I Agree to these terms."

According to Mr. Snow, several DirecTV agents registered to "monitor" the site.

Snow sued under the Stored Communications Act or SCA, because it forbids accessing an electronic communication "without authorization."

Not so - said the 11th Circuit US Court. The Court stated that the site was "readily accessible to the general public" despite the click approval of TOS.

There was no explanation from the Court what would be considered sufficient screening to invoke the SCA.

[PDF] [ca11.uscourts.gov...]

This triggers several questions in my mind, how effective click-through Terms of Service, Terms of Use, End User License Agreements and such are impacted.

At what level of validation can a site be considered private?

If a site is not considered private what are the legal implications, as far as content monitoring?

[vincevincevince]

Snow sued under the Stored Communications Act or SCA

Perhaps that was the mistake. He should have sued for 'obtaining services by deceit' or something like that. Not only did DirecTV access his site but they lied and misled Michel Snow into permitting them access. If, however, the terms were lengthy or wordy then I am fully in agreement with the judge.

This triggers several questions in my mind, how effective click-through Terms of Service, Terms of Use, End User License Agreements and such are impacted.

I've never believed that any of these would stand up to a good lawyer in a court of law. A server log which shows less than a few minutes betwen the document being served and the acceptance coming back is ample proof that the document was never read and the agreement thus null and void.

It takes serious time to read and understand the implications of a lengthy contract, ask any lawyer. The windows XP home EULA from microsoft is some 5200 words long, at the upper-end of U.S. reading speed; 300 words/minute - that's at least 17 minutes reading. Don't forget that that particular EULA is full of things you need to look up, such as the extent to which liabilities can be limited in your state or country, what the 'applicable law' is to which microsoft claims the fullest extent of, etc...

All that considered you can't seriously consider it to be legally binding contract. That's before you even remember that you contracted with the retailer when you purchased the software - long before you saw the EULA and so I do not see how an EULA provided after completion of the purchase can lawfully limit anything.