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Amendment: Violation of ToS Should Not Be a Crime

timothy posted about 3 years ago | from the only-partway-to-bill-becomes-a-law dept.

Crime 74

Khyber writes "Three data and security breach notification bills have been approved by the Senate Judiciary Committee, one of which includes an amendment that adds clarity with regards to the Computer Fraud and Abuse Act. These three bills would require businesses to develop data privacy and security plans, and it would set a federal standard for notifying individuals of breaches of very sensitive personally identifiable information, such as credit card information or medical records. This clarification is welcomed, making the statute more focused towards hackers and identity thieves, instead of consumers that run afoul of ToS or AUPs of websites and service providers."

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Violation of ToS should not be a crime (1)

flaming error (1041742) | about 3 years ago | (#37503348)

Kind of obvious, isn't it? Is any other breach of contract a crime?

Re:Violation of ToS should not be a crime (1)

snowgirl (978879) | about 3 years ago | (#37503426)

Not directly, but if the other party obtains a court order to enforce a provision of a contract (specific performance), and you disregard that order, then it's contempt of court... a proper example would be someone who would violate an NDA, and then refuses to stop violating an NDA after they get a court order telling you to shut up.

Re:Violation of ToS should not be a crime (3, Insightful)

KingBenny (1301797) | about 3 years ago | (#37503436)

do you mean like , do EA and Sony have the right to oblige you not to sue them once you click the button ? in some cases massive corporations need to be held in line, doesnt that America have this great stuff about monopolies and such in place already ? If any company can just ask you to waver your basic rights once you click yes, something is wrong, you can't expect everyone to be (and here i'm afraid to use a word since words are ofthen the beginning of an explosive situation) enough to read the fine print of everything, especially between the lines. In a society based on consumption, consumers need protection. That's basic nature : the predator won't stop until its hunger is satisfied, now in nature this works, in human society , especially with money, it does not. If you want your source of income not to be depleted after a certain time, you should cultivate it with more than a whip and chains or it will get diseased or rise against you. (maybe thats also basic nature, but i dont know how much nature is left in the entity of society as a whole un-sentient, yet self-preserving being)

Re:Violation of ToS should not be a crime (1)

blueg3 (192743) | about 3 years ago | (#37504152)

do EA and Sony have the right to oblige you not to sue them once you click the button

Even though the ToS might say that, that doesn't make it legally binding, and judges often ignore such phrases. I still don't think they ought to be able to give you the impression that it's true, but eh.

Re:Violation of ToS should not be a crime (2, Funny)

PopeRatzo (965947) | about 3 years ago | (#37504510)

in some cases massive corporations need to be held in line

Dirty hippie. If you feel this way why don't you just go live in some European socialist hellhole.

Those corporations are the job creators and should be allowed to do whatever they want. Any infringement on their God-given right to do whatever they want is an example of how those islamist demoncrats take away your liberty.

Re:Violation of ToS should not be a crime (0)

Anonymous Coward | about 3 years ago | (#37505416)

Pope Ratzo confuses mouse turds for grape nuts but likes the taste anyway.

Re:Violation of ToS should not be a crime (1)

kuhnto (1904624) | about 3 years ago | (#37505638)

So, if slashdot's TOS required the abandonment of your first born, you would be Fine with that? I Know you just want to post on this site soooooooo bad, that you do not give a flying flip over the TOS until it's too late and the slash van is pulling up outside your house.

Re:Violation of ToS should not be a crime (3, Funny)

PopeRatzo (965947) | about 3 years ago | (#37506006)

So, if slashdot's TOS required the abandonment of your first born, you would be Fine with that?

You obviously haven't met my first born.

Re:Violation of ToS should not be a crime (0)

Anonymous Coward | about 3 years ago | (#37511778)

*woosh* ---- The sound of a joke going over your head.

Re:Violation of ToS should not be a crime (2)

rtb61 (674572) | about 3 years ago | (#37508184)

The governments continued recognition of identity theft and the legislation of a falsehood is basically a licence for corporations to send out fraudulent charges to all those person whom they think are unlikely to notice. When caught out, whoops 'er' identity theft as the excuse for anyone who complains.

Identity theft is a lie. A individual possibly made a false claim for a credit purchase and the seller failed in their duty of care to properly identify the user of that credit facility. Then seller than made fraudulent claim against the credit card holders account. The lie perpetrated by credit card companies, is that the credit card account holder is presumed liable for that purchase and most now prove themselves innocent. Reality the seller should be required to proved themselves innocent of the fraud they committed by supply real proof of the false purchase, the actual person who made that purchase.

Corps make it illegal to not do business their way (1)

lpq (583377) | about 3 years ago | (#37506034)

"doesnt that America have this great stuff about monopolies and such in place already"

The corporations made it part of doing business the Washington way for their own people to be put in charge of oversight of these laws -- and people in those positions are given 'cushy' permanent 'retire' positions based on their performance in office after they leave office.

Washington has been bought and sold by the corps and most people don't care. It seems like a majority of those who care are also a bit on the loony side or have no power (or both). Anyone who gets power seems to be corrupted by it -- haven't found any good contrary examples yet.

America's political system is corrupt, and growing more so every day. It is hard to see that reversing, though all things must end, though I think the reversal of this will not be pleasant.

Re:Corps make it illegal to not do business their (1)

KingBenny (1301797) | about 3 years ago | (#37507240)

yea, i also noticed that the people with mad skillz are usually not interested in a position of power, must be some socio-genetic thing and yea, absolute power corrupts absolutely, that's why there is no true democracy to be found anywhere in this world, only the illusion of, overhere we have a particracy , people don't decide laws, they don't even elect people, they vote on parties, and the parties decide who gets the positions. Maybe it's just safer in the shadows and a matter of survival, after all, if you were to be perceived as a threat by those in power, they would feel the need to save themselves ?

Re:Corps make it illegal to not do business their (1)

Pf0tzenpfritz (1402005) | about 3 years ago | (#37507734)

This is not a specifically american problem. Crap will always swim on top of the stream, no matter where on earth you are. (It meight rotate clockwise or anticlockwise, though.) In a highly competetive world you need to be greedy for power to accumulate enough of it to make a difference. In other words: you really have to be a bastard.

Re:Violation of ToS should not be a crime (1)

hairyfeet (841228) | about 3 years ago | (#37506896)

Don't worry comrade citizen, if we have learned anything it is that the one group more powerful than the greedy bloodsucking corporations is the greedy bloodsucking lawyers. Expect to see the leeches destroy the whole "click away lawsuits" in court, hell maybe even in congress. Or are you forgetting how many congress critters are greedy bloodsucking lawyers?

Re:Violation of ToS should not be a crime (1)

KingBenny (1301797) | about 3 years ago | (#37507246)

comrade lol, communism is great in theory, but like the ultimate form of government , its cousin anarchy, it requires a certain degree of global intellectual integrity that has certainly not been achieved yet. It would be nice to get an experimental planet to try it out with a select group of people who could actually live it

Re:Violation of ToS should not be a crime (1)

Trepidity (597) | about 3 years ago | (#37503578)

I believe it was justified by a problematic analogy to some physical trespassing type questions. It can sometimes be the case that, if you're granted access somewhere pursuant to an agreement or policy, then it's a criminal offense (trespass) if you access it in a way that doesn't comply with the policy, because the default is no-authorized-access. The attempted analogy is that if you access a computer resource in a way that violates its ToS, your access is unauthorized, so you're guilty of unauthorized access to a computer system.

Re:Violation of ToS should not be a crime (1)

mcavic (2007672) | about 3 years ago | (#37503650)

Is any other breach of contract a crime?

It depends on what you mean by crime. A binding contract is usually enforceable by law. You won't normally go to jail for breach of contract, but you can certainly be sued.

Re:Violation of ToS should not be a crime (2)

ppanon (16583) | about 3 years ago | (#37504224)

I'm pretty sure there are strong definitions of what constitutes a crime. Civil law covers contracts and other arrangements between private parties (including inheritance and other aspects of family law). Criminal Law covers crimes (misdemeanours and felonies), which are generally activities which threaten the basis of civil society (i.e. fraud, theft, violent crimes).

Re:Violation of ToS should not be a crime (2)

Osgeld (1900440) | about 3 years ago | (#37503730)

extortion is, which is what most TOS's are, see they never tell you that in order to use a product you bought you need to enter into a legal contract, and of course once you opened said product it instantly becomes used and getting any sort compensation for said product violates their rights. so at this point you either paid 60+ bucks for something you cant use, or you sign their contract.

Re:Violation of ToS should not be a crime (1)

JoelKatz (46478) | about 3 years ago | (#37504492)

Yes, breaching a contract is often a crime in analogous cases. If the contract permits you to do something that would be a crime without permission, then breaching the contract can sometimes be a crime.

Another response to this question gave the example of trespass. If you're permit to access a specific place for a specific reason, accessing that place for another reason may be a crime of trespass. If you rent a car with an agreement to return the car on a particular date, keeping the car well past that date may be a crime akin to theft.

Since using my computer without my permission is a crime akin to trespass, it's not unreasonable that exceeding the granted permission (in a sufficiently serious fashion) could be that same crime akin to trespass. The problem with the CFAA is that it doesn't require the violation to be sufficiently serious.

Well... (2)

Mashiki (184564) | about 3 years ago | (#37503378)

Considering we're now seeing companies turn around and simply trying to remove your rights by ToS and EULA I'm sure this will work well. See EA, AT&T and Sony.

Violation of ToS (0)

Anonymous Coward | about 3 years ago | (#37503422)

As occurred in TNG, DS9 and especially Enterprise

Not illegal, but they will be haunted by the ghost of Gene Roddenbury

It already IS NOT a crime. (3, Interesting)

Jane Q. Public (1010737) | about 3 years ago | (#37503442)

While violations of TOS have ended up in court a bit too much lately, that is the result of overzealous corporations and prosecutors who are kissing their asses.

In general, courts have consistently found that violations of TOS are not criminal... if for no other reason than that would allow corporations (or anybody else for that matter) to write their own law... which is completely ridiculous.

What this bill, with the amendment, does is keep these cases out of court in the first place. Which is A Good Thing.

Re:It already IS NOT a crime. (1)

Black Parrot (19622) | about 3 years ago | (#37503534)

In general, courts have consistently found that violations of TOS are not criminal... if for no other reason than that would allow corporations (or anybody else for that matter) to write their own law... which is completely ridiculous.

Ridiculous to sane people like you and me, but some people think it would be the natural order of things.

It's funny to read the Greek Sophists (23-24 centuries ago) argue that democratic laws were just a scam where the powerless ganged up to take advantage of the powerful.

Re:It already IS NOT a crime. (1)

Jane Q. Public (1010737) | about 3 years ago | (#37503548)

Democracies have always failed, and always quickly. We do not have a democracy. And I don't mean that in a snide way... it simply isn't. It's a representative Republic.

Re:It already IS NOT a crime. (0)

Anonymous Coward | about 3 years ago | (#37503600)

Minus the representative part.

Re:It already IS NOT a crime. (1)

Black Parrot (19622) | about 3 years ago | (#37503638)

And the world's first democracy was an Evil Empire.

Not sure what all that has to do with what I posted, though.

Re:It already IS NOT a crime. (0)

Anonymous Coward | about 3 years ago | (#37504016)

And the empire never ended. - pkd

Re:It already IS NOT a crime. (1)

Aighearach (97333) | about 3 years ago | (#37503892)

At the Federal level.

Here in Oregon we use direct Democracy to decide anything that is controversial, and we have our representative government trained to simply refer anything contentious to the People.

It hasn't failed, people love it, and it works. Sensible technology choices (paper ballots + optical scanners + snail mail) makes it work smoothly.

Re:It already IS NOT a crime. (1)

KingAlanI (1270538) | about 3 years ago | (#37504546)

Certain things do work better at smaller scales, I suppose. Guess that's one thing federalism has going for it.

Re:It already IS NOT a crime. (1)

Jarik C-Bol (894741) | about 3 years ago | (#37504174)

Now there is something I've never understood. We keep trotting around the globe, trying to foist 'Democracy' on various nations, saying how great it is, when we don't even have one ourselves. We have something of a Representative Republic, with democratic aspects, but not a true democracy.
like Winston Churchhill said: "It has been said that democracy is the worst form of government except all the others that have been tried"

Re:It already IS NOT a crime. (1)

nzac (1822298) | about 3 years ago | (#37504310)

Come on, democracy is used by the US to install the politically acceptable version of a puppet government in these counties. A democracy is easiest form of government to influence from another country. Neo-cons don't believe in real democracy for these countries.

There have allegations of vote rigging in Afghanistan where a pro US candidate won.

Re:It already IS NOT a crime. (1)

AliasMarlowe (1042386) | about 3 years ago | (#37504522)

like Winston Churchhill said: "It has been said that democracy is the worst form of government except all the others that have been tried"

How about this: "gonorrhea is the worst form of venereal disease, apart from all the others that have occurred". That statement is just as true as Churchill's. But neither statement justifies its object (government or venereal disease) as something one should actually want, merely that it identifies the least bad member of the class of such objects.

Of course, Churchill referred to representative democracy, whose limitations and failings are manifest in the USA end several EU countries. Democracy could alternatively (and would preferably) refer to direct democracy, which has a less dreadful record in places such as Switzerland, and would greatly devalue the inflated self-importance of elected representatives in any polity with an educated populace.

Re:It already IS NOT a crime. (1)

kiddygrinder (605598) | about 3 years ago | (#37506372)

you don't want diseases, rationally you probably want some kind of government so your comparison fails

Re:It already IS NOT a crime. (1)

Jane Q. Public (1010737) | about 3 years ago | (#37508720)

Switzerland does not have a true direct democracy. It is supplemented by a representative Parliament.

Historically, true direct democracies have always quickly collapsed. They never lasted long at all. And there is no reason to believe they would last any longer today than they have in the past.

More Churchill wit (2)

KingAlanI (1270538) | about 3 years ago | (#37504566)

Churchill _was_ staunchly anti-communist (but was still willing to work with the USSR to deal with the Nazis), but here's another famous Churchill-ism:
"The best argument against democracy is a five-minute conversation with the average voter."

Re:More Churchill wit (1)

sgt scrub (869860) | about 3 years ago | (#37508294)

I'd say staunchly anti-communist, openly anti-democratic, and quietly pro-republic.

The best argument against a republic is watching 5 minutes of FOX news.

Re:It already IS NOT a crime. (-1)

Anonymous Coward | about 3 years ago | (#37504580)

Mother fucker!!!!

We do not have a DIRECT DEMOCRACY.....we have a REPRESENTATIVE DEMOCRACY!!!

They both fall under the classification of DEMOCRACY

There are plenty of republican type governance structures that do not involve the people that are governed to decide who will do the governing....See Rome's constitution for an example.

There is a very clear differentiation between what we have and what Rome had.... that difference is DEMOCRATIC RULE.

I am tired of you dumb fuck conservatives neo-bitches who are attempting to pollute the collective psyche of the culture and make it seem like the vote of the people in a wide range of things does not matter.... It does and because of that we are correctly classified as a democracy.

Please commence with modding me to hell now.... thank you.

Re:It already IS NOT a crime. (1)

flaming error (1041742) | about 3 years ago | (#37504688)

I am tired of you ... who ... make it seem like the vote of the people ... does not matter.... It does

That's a relief. I was beginning to think my efforts at abolishing the TSA, IRS, Federal Reserve, and foreign occupations wasn't going anywhere.

US is a democracy (1)

js_sebastian (946118) | about 3 years ago | (#37506748)

Democracies have always failed, and always quickly. We do not have a democracy. And I don't mean that in a snide way... it simply isn't. It's a representative Republic.

This commonly held phallacy is rather perplexing to non americans. In fact, the US is a democracy. It is not a direct democracy (where citizens vote on each individual issue) but a representative democracy. Let's try to look it up in a dictionary (http://www.merriam-webster.com/dictionary/democracy):

a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections

(emphasis mine). Of course, if you come up with your own definition of words you can argue just about anything, but making up the language as you go does not help communication.

Re:US is a democracy (1)

hairyfeet (841228) | about 3 years ago | (#37506966)

Actually if you want to get technical what we have is an oligarchy. You see when "election" time comes you are given the "choice" of richer shitass A or rich shitass B, neither one of which would piss on you if you were on fire if you can't afford 10,000 a plate lunches to bribe...err contribute to their campaign. The sad part if they could just run a picture of Goatse beside the letter D or R and you'd have the same effect, one of the Goatse pics would get more votes than the other followed by it promptly ignoring you.

I mean if you read the polls the American people are against torture, want the troops out, don't wanna fuck the poor and elderly, wanna raise taxes on the 1%ers, don't want a huge military if it is gonna gut social programs, don't want us in Libya, do you see ANY of that being implemented? Instead the corporate masters will invent some "issue" they really don't give a flying fuck about just to give the talking heads something to stir up the rabble, like gay marriage, while they continue to get whatever the fuck they want by just buying the laws.

Sad but true comrade, sad but true. the late Bill Hick nailed it nearly 20 years ago: "Well I believe the puppet on the left shares my beliefs, well I believe the puppet on the right shares my views....hey wait a minute, there is one guy working both puppets!"

Re:US is a democracy (1)

Jane Q. Public (1010737) | about 3 years ago | (#37508750)

Dictionaries list common usage; they often do not contain technical definitions.

A pure (or direct as you say) democracy is a government in which everybody votes on everything. What we have can be called "representative democracy", but that is not technically accurate. Its true name is "republic".

I did not make that up, or pull it from thin air. Look it up yourself.

By the way: if you want to nitpick about definitions, a "phallacy" would actually mean "a quality of, or state of being, penis". I think you meant fallacy.

Re:US is a democracy (1)

js_sebastian (946118) | about 3 years ago | (#37513104)

Dictionaries list common usage; they often do not contain technical definitions. A pure (or direct as you say) democracy is a government in which everybody votes on everything. What we have can be called "representative democracy", but that is not technically accurate. Its true name is "republic". I did not make that up, or pull it from thin air. Look it up yourself.

I get your distinction, and from the number of people who post this on slashdot, I also believe you did not make it up yourself. I just think it is a US invention (probably invented by a specific part of the US political spectrum, for reasons I cannot fathom): the rest of the world disagrees, and uses the word democracy mostly to indicate a representative democracy. The wikipedia page on republic offers some insight into this:

A distinct set of definitions for the word republic evolved in the United States. In common parlance a republic is a state that does not practice direct democracy but rather has a government indirectly controlled by the people. This is known as representative democracy. This understanding of the term was originally developed by James Madison, and notably employed in Federalist Paper No. 10. This meaning was widely adopted early in the history of the United States, including in Noah Webster's dictionary of 1828.

So this is not such a recent redefinition of the term, but it is indeed a US redefinition of the term. Or in other words: every time you correct people on slashdot for not using the word as you think it should be, you only betray your provincialism.

By the way: if you want to nitpick about definitions, a "phallacy" would actually mean "a quality of, or state of being, penis". I think you meant fallacy.

LOL, you win!..

Re:It already IS NOT a crime. (1)

sjames (1099) | about 3 years ago | (#37504088)

It's no wonder that calling an argument Sophistry has come to be an insult.

Re:It already IS NOT a crime. (2)

ppanon (16583) | about 3 years ago | (#37504384)

It's funny to read the Greek Sophists (23-24 centuries ago) argue that democratic laws were just a scam where the powerless ganged up to take advantage of the powerful.

To a certain extent it's true. But it's better than the alternative where the powerless revolt, and many of the powerless and powerful die as blood runs in the streets. That generally tend to be bad all around, including for business. Democracy is an uneasy truce between the powerful and the powerless to prevent that from happening, and unfortunately sometimes the powerful forget that. Hence that observation that "The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants".

Re:It already IS NOT a crime. (0)

Anonymous Coward | about 3 years ago | (#37511286)

Except that the current modifications to the CFAA (Computer Fraud and Abuse Act) WILL make it a crime, prior to this amendment. The amendment is making sure the status remains quo.

As an aside, is anyone else as blown away as I am by how Al Franken has been both active and pro-consumer since he's been elected? Every time I see a bill that seems like a good idea, its his name on there.

jurys will have a hard time dealing wi ToS or AUPs (1)

Joe_Dragon (2206452) | about 3 years ago | (#37503506)

jury's will have a hard time dealing with ToS or AUPs any ways.

Re:jurys will have a hard time dealing wi ToS or A (0)

Anonymous Coward | about 3 years ago | (#37504844)

jury's will

Who or what is this "will" that belongs to a jury?

Oh, you meant "juries will...."? Well why didn't you write that?

Re:jurys will have a hard time dealing wi ToS or A (1)

Joe_Dragon (2206452) | about 3 years ago | (#37504928)

oops i'm guilty of getting that wrong but by reading this you give up the right to point it out or drop my score.

I didn't elect the lawyers who write TOS (1)

mykos (1627575) | about 3 years ago | (#37503508)

Nice to know that de facto laws will hopefully no longer be written by the unelected lawyers writing TOS.

Re:I didn't elect the lawyers who write TOS (1)

sgt scrub (869860) | about 3 years ago | (#37508318)

At least not until they are appointed to the benches that decide Civil cases.

Go further, please. (3, Informative)

Black Parrot (19622) | about 3 years ago | (#37503556)

It's good if they're requiring data privacy plans, but they should also develop some minimal requirements for what those plans say. How many stories to we get every week about someone's EULA claiming they have the right to sell your GPS data, or a corporation taking over another's assets and claiming that it is not held to the privacy agreements that data was collected under?

bad analogy? (2)

burris (122191) | about 3 years ago | (#37503678)

I have a large garden on my property. In order to benefit the community, I have an agreement with a local school where the students can come and pick vegetables to take home and cook for their own dinner. Each student has to agree to language stipulating that the vegetables are for their own use and violating that term will revoke permission to enter the garden and take vegetables. I catch some students taking baskets full of vegetables and giving them to homeless people at the bus depot so I give them a lecture and tell them they are no longer welcome to enter my garden and take vegetables. The next day I catch the same students in my garden filling up baskets of vegetables so I call the cops.

Q: should the students be liable for the crime of trespassing?

Re:bad analogy? (0)

Anonymous Coward | about 3 years ago | (#37503716)

Good analogy, if you're talking about a virtual farm...?

Re:bad analogy? (2)

Khyber (864651) | about 3 years ago | (#37503732)

Yes, because this is your property and thus this is a property crime, and not some contract violation.

You, as the owner of the property, said students may come get vegetables.

You have the right to choose which students may have that privilege of contract, since they aren't old enough to legally be in a contract in the first place (The school would have to enforce punishment on their side for the kid breaking the contract, you would handle trespassing.)

That's EXACTLY how it worked at my high school greenhouse.

Re:bad analogy? (1)

burris (122191) | about 3 years ago | (#37503754)

How is that different from a contract that lets you use my computer? The contract is the only thing that gives you permission to use it and using it without permission is a crime, the computer fraud and abuse act.

Re:bad analogy? (1)

maxume (22995) | about 3 years ago | (#37503812)

No. You have your computer connected to an open network and configured to respond to reasonably well formed semi-anonymous requests. The idea that the response is subject to a contract is just ridiculous.

Re:bad analogy? (1)

grmoc (57943) | about 3 years ago | (#37503972)

How is it different to having politician's random falsehoods enter into my brain against my will?
You can carry these analogies to ridiculous extremes without trying.

Using the above (access to my brain), the obvious choice is to ensure that the politicians cannot contact my brain by turning off the communications device.

Re:bad analogy? (0)

Anonymous Coward | about 3 years ago | (#37591314)

"watching tv"? so you can't wear headphones? or an eyecover given out on airplanes for sleeping? no, this analogy can't be even reasonably debated, and if looking at something is accessing your brain, then you don't have any "will".

Re:bad analogy? (1)

Aighearach (97333) | about 3 years ago | (#37503934)

I can't tell if you're trolling, or flame-baiting. Would you please clarify?

Re:bad analogy? (4, Insightful)

Miamicanes (730264) | about 3 years ago | (#37504010)

> Q: should the students be liable for the crime of trespassing?

Yes, because at that point you've explicitly and unambiguously revoked their permission to enter your garden and take vegetables.

It would be another matter ENTIRELY if you never confronted the students, observed them giving vegetables to the homeless, then escalated immediately to calling the cops the next day by arguing that giving the vegetables to the homeless automatically terminated their permission to enter your garden and take vegetables.

It sounds like splitting hairs, but it's the difference between making the individual absolutely, explicitly, and unambiguously aware that his permission to enter has been revoked, vs claiming guilt by automatic recursive fiat. The computer analogy would be if Facebook terminated your use due to TOS violations, and you proceeded to take advantage of a security exploit to resurrect your profile and continue using Facebook after they'd told you point blank you were no longer welcome.

In metaphorical terms, American law isn't binary and digital -- it's analog and gray. Generally speaking, the more obvious you (or a government) makes the boundary between legal and illegal, the more enforceable a law becomes. It helps to have lots of legal resources behind you to back up your position, but at the end of the day, American common law frowns upon insidious illegality. You can have quite a few situations where the students could find themselves in a position where you'd prevail over them in a civil lawsuit, but nevertheless fail to get them convicted of committing a crime. For example, if instead of telling them that they were no longer allowed to enter your garden, you sent an email to the principal of the school and expected HIM to tell them. At that point, you'd have a fairly clear case to sue them (though they'd arguably have an equally clear case to cross-claim the principal for failing to tell them if he failed to do so), but would have a difficult case to make in a criminal trial for trespass (assuming the prosecutor even pursued it).

Re:bad analogy? (1)

Nursie (632944) | about 3 years ago | (#37506702)

Depends. When the ToS is governing the use of the operating system on a machine bought and owned by the people you accuse of violating it (PS3 for instance) things get a whole lot muddier and less clear cut.

An online service may fit your analogy, a whole load of situations covered by ToS do not.

Re:bad analogy? (1)

sgt scrub (869860) | about 3 years ago | (#37508376)

The judge would hear, "I banned the defendants from my property". Under the law, in 49 states, he/she would have to find the students guilty of trespassing -- baring evidence to the contrary. In Texas he/she would also be obligated to retain the students. The district clerk would then be obligated to press legal charges for theft. This is why it is illegal to have such a clause. Once you have entered into a humanitarian agreement involving real property, which btw requires permission from the state, you can not revoke privileges on a case by case basis. You must allow a judge to make that decision.

Re:bad analogy? Add a shotgun (1)

chrisphotonic (2450982) | about 3 years ago | (#37508418)

Now assume that you have a sign that says trespassers will be shot. So you blow one of their heads with a double barrel shotgun, for a few vegetables.

But everything is fine because you had a sign/TOS right?

Maybe it would have been better to let the courts decide what is FAIR if someone stole a lot of your vegetables. As far as I know stealing is still a crime. Enforce the current rules, rather than making new stupid laws. Paying you back and community service maybe...

This way you don't have to clean the blood spatter off your vegies.

Re:bad analogy? (0)

Anonymous Coward | about 3 years ago | (#37508600)

As with everyone else, yes they would be liable.

But, OTOH, there is nothing wrong with giving to the homeless, either. (Good deeds should never be punished.)

Re:bad analogy? (1)

sorak (246725) | about 3 years ago | (#37534956)

Analogy:

I have a fruit stand. Someone comes to me to buy apples. I sell them a bag off apples. But, when they open the bag, it contains a note that reads:

Consumer:
By consumption of this product, you agree to the following terms:

1. There are no guarantees that this is really an apple. It may be a pear, a peach, or something I found in the trash.
2. This may not be safe to eat. I didn't poison this, or inject it with heroin, but if any of that stuff happens to be there, it isn't my responsibility.
3. No refunds. You agreed to pay for the apple, or whatever is in this bag. You can't take it back.
4. If you decide to sue, you can't.
5. If some hippy judge says you can, then we get to choose the jurisdiction.
6. We reserve the right to take this apple back, at any time we want, and replace it with something else.
7. You agree not to do anything interesting with this. That includes baking, converting it into a bong, pipe, or other recreational device, or throwing it in a manner that we may disapprove of.
8. By opening this bag, you have agreed not to communicate any information about the contents of the bag, or the transaction without my approval.
9. You did not purchase an apple product. You have paid for an apple delivery service, contained on a non-product medium. This loophole allows me to circumvent many consumer protections that apply to products, and services.

Enjoy!

Re:bad analogy? (0)

Anonymous Coward | about 3 years ago | (#37591374)

"petty theft". you were giving them vegetables, but when you stopped given them, ... most likely supersedes any trespassing claim.

Pay attention to definitions (0)

Anonymous Coward | about 3 years ago | (#37504000)

FWIW, in the earlier days legislative/regulatory efforts referred to PII (Personally Identifiable Information), with industry generally attempting to limit what would be considered PII. For example, some argued that member IDs and other software GUIDs shouldn't be considered PII *even in cases where the general public could easily perform a simple Internet search on those and actually identify the name, etc of the specific individual to which they were assigned*. Here I see references to SPII (Sensitive Personally Identifiable Information). I believe this is a further attempt to limit what information is sensitive enough to require special handling and reporting. I have seen people argue that a name & email address leaked from an HIV database should be considered SPII but a name & email address leaked from a marketing firm's database shouldn't be considered SPII *even in the case where what was leaked from the marketing firm is a list of names & email addresses for account holders at bank XYZ*.

FREE WEEV (-1)

Anonymous Coward | about 3 years ago | (#37504012)

Free Weev you assholes.

Brown Cows (0)

Anonymous Coward | about 3 years ago | (#37504204)

is it just me or does the summary have nothing to do with the title?

any chance? (0)

Anonymous Coward | about 3 years ago | (#37505328)

any chance we could also amend the law so that ToS can be no more than 500 words?

ToS took away my main reason for hosting (0)

Anonymous Coward | about 3 years ago | (#37506216)

my hosting took away software hosting and disallowed "large file hosting". my software got called large file hosting and was flagged after the new ToS, which I wasn't notified about. hosting companies are applying the thumbscrews and shouldn't be allowed to do what they are doing. now my files must reside on $16/mo file hosting amazon s3, which costs more than my $11 regular hosting. I can't afford this. and now I need e-commerce hosting on top of that which costs $25/mo or more.

Should not be a crime to anyone (0)

Anonymous Coward | about 3 years ago | (#37516492)

Hackers are legitimate users too, and identity theft is already covered by other laws. ToS should be considered moot, superfluous, and inconsequential. And anyway, I do like ham sandwiches.
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