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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.
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?
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]
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]
joined:Aug 29, 2003
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
Having courts determine your TOS is non-binding, or irrelevant is akin to having those shrink wrap software agreements pronounced as garbage.
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]
it's like getting locked up during prohibition for selling beer prior to prohibition;
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?
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.
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.
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.....
joined:Dec 29, 2003
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.
THE APPLE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, LIFE SUPPORT MACHINES OR OTHER EQUIPMENT IN WHICH THE FAILURE OF THE APPLE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE
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?
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.