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Aaron's Law: Violating a Site's ToS Should Not Land You in Jail

samzenpus posted about 2 years ago | from the last-time dept.

Crime 246

Freddybear writes "Congresswoman Zoe Lofgren proposes a change to the Computer Fraud and Abuse Act (CFAA) which would remove the felony criminal penalty for violating the terms of service of a website and return it to the realm of contract law where it belongs. This would eliminate the potential for prosecutors to abuse the CFAA in pursuit of criminal convictions for simple violations of a website's terms of service."

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Depends on... (5, Insightful)

Z00L00K (682162) | about 2 years ago | (#42623199)

If the violation of ToS is due to an illegal action like posting things that are illegal both for the location of the site and the poster it should still land into the legal system, but the large volume of ToS violations should at most render the offender a permanent banning from that site or in milder cases a temporary ban.

Re:Depends on... (-1, Troll)

jcoy42 (412359) | about 2 years ago | (#42623221)

mod parent up.

Re:Depends on... (2, Funny)

Cryacin (657549) | about 2 years ago | (#42623393)

What is it with all the 's laws that are coming out?

I have one. Handicapped parking should be called Sheldon's law... "You're in my spot"

Unfortunately, this "law" cost a life (2, Insightful)

Taco Cowboy (5327) | about 2 years ago | (#42623603)

I agree that there are way too many "laws".

It's just unfortunate that in this case this particular "law" cost the life of a very promising young guy.

The damn system did him in.

Re:Unfortunately, this "law" cost a life (0)

Anonymous Coward | about 2 years ago | (#42623723)

no he did himself in.

Re:Unfortunately, this "law" cost a life (5, Informative)

Anonymous Coward | about 2 years ago | (#42623869)

The system didn't do him in. PEOPLE caused his death. By taking away all other acceptable options.
The powers that be decided he must be "MADE AN EXAMPLE OF". Because "minor maybe crime" on a "computer" (ooo scary! hackers! cyber! oh nos!).

And he was smart enough to realize just how totally screwed he was. Now and in the decades coming of his future.
He took the only option left to anyone who doesn't like rape and a ruined life plus being billed for it. Death.

And the powers that be. Will never miss one night of sleep over it. Nothing will ever happen to them. And they will continue to do this to other people.

The wheels of the american justice machinery grind exceedingly slow and very fine.
Beware you don't get caught in them. Or else death is the only logical option open to you. Unless handcuffs, bars, rape and abuse is your thing.

Re:Depends on... (4, Funny)

Zontar The Mindless (9002) | about 2 years ago | (#42623633)

For that jaded Grammar Nazi who thinks he's seen it all...

What is it with all the 's laws...

*looks for something dull and rusty to gouge eyes out with*

mod grandparent down (-1)

Anonymous Coward | about 2 years ago | (#42623477)

Not insightful and does not understand the subject.

Re:Depends on... (4, Informative)

Anonymous Coward | about 2 years ago | (#42623239)

If something is illegal in it's own right, then it still remains illegal, even if it also happens to be a violation of the ToS.

Re:Depends on... (5, Insightful)

SampleFish (2769857) | about 2 years ago | (#42623255)

It doesn't depend on anything like that. If you broke a law in your land that is the law that applies. It doesn't matter if the TOS includes reference to a law. The TOS cannot change a law and should have no legal authority.

Re:Depends on... (5, Insightful)

Jane Q. Public (1010737) | about 2 years ago | (#42623473)

"It doesn't depend on anything like that. If you broke a law in your land that is the law that applies. It doesn't matter if the TOS includes reference to a law. The TOS cannot change a law and should have no legal authority."

But that is exactly the issue here. Because the law as enacted was rather vague, some prosecutors have been claiming that violation of TOS means violation of the CFAA law... regardless of the fact that a TOS can vary widely from company to company or site to site.

If so, that would mean, in effect, that a company (or just website) could write its own law by just putting it in the TOS... which is absolutely contrary to our customary legal principles and concept of justice here in the U.S.

THAT is why we want it changed, and clarified.

Re:Depends on... (2, Funny)

Anne Thwacks (531696) | about 2 years ago | (#42623619)

My website is my sovereign territory, and I can make the laws on it any how I wish. I can baptise children and mary adults any time I choose.

-- just so long as the server is in international waters and outside any country's territorial limit!

Re:Depends on... (2)

Swampash (1131503) | about 2 years ago | (#42623621)

No, that's not the way it works. It's "if you broke a law in your land or if you didn't but what you did was still against the law in the USA, even if that's not where you were".

Re:Depends on... (5, Insightful)

Capsaicin (412918) | about 2 years ago | (#42623271)

If the violation of ToS is due to an illegal action like posting things that are illegal both for the location of the site and the poster it should still land into the legal system.

Say what?!

No one is talking about removing ToS violations from the legal system. Rather the idea is that a breach of contract (such as violating a ToS) be dealt with under contract law, where imprisonment is unavailable as a remedy. While the mere breach of contractual terms would no longer be a crime in its own right, any crimes committed in effecting or pursuant to such a breach they would still be dealt with by the criminal justice system. Obviously.

Re:Depends on... (1)

Anonymous Coward | about 2 years ago | (#42623537)

Right, this is more like when someone does something that may be repugnant but not technically illegal like create fake accounts on a message board to harass your kid's ex. What is happening is some prosecutors were trying to claim the violations of the TOS was a violation of criminal law even though they were the only violation of law. Moving it back to contract law means they can't find wording in a private document (the TOS) that construes a criminal violation when things like this happen.

Re:Depends on... (5, Interesting)

Anonymous Coward | about 2 years ago | (#42623293)

This is more along the lines of a sites ToS stating "You shall not offend anyone for any reason"
This is justification for being banned from the site, NOT justification for going to prison.

Currently, it is a federal crime to "offend someone for any reason" if that is listed in the sites ToS. Or to put it another way, all I have to do is claim your statement offends me and oops you just committed a felony.
This change is simply trying to remove that insanity.

Re:Depends on... (-1)

Anonymous Coward | about 2 years ago | (#42623425)

This is more along the lines of a sites ToS stating "You shall not offend anyone for any reason"

So don't say "nigger" anymore. Gotcha.

Re:Depends on... (1)

Anonymous Coward | about 2 years ago | (#42623315)

No. The ToS violation still shouldn't land you in jail, it should be the illegal action that lands you in jail. The fact that you also violated a ToS shouldn't add to your sentence.

Re:Depends on... (3, Interesting)

chrismcb (983081) | about 2 years ago | (#42623371)

It shouldn't depend on anything. If you are doing something illegal, like posting things that are illegal, then you should land in the legal system. No MATTER what the TOS is. In this case, it shouldn't matter that you broke the TOS (other than maybe the site banning you),
But if you do something that is legal (like say give your password to your spouse) but is against the TOS, that should NOT land you in the legal system. Any more than any other breach of contract. Seems like a big case of "DUH" to me.

Re:Depends on... (4, Insightful)

Jane Q. Public (1010737) | about 2 years ago | (#42623491)

"Seems like a big case of "DUH" to me."

Tell it to the prosecutors, because some of them don't seem to understand that.

Re:Depends on... (5, Interesting)

jonbryce (703250) | about 2 years ago | (#42623763)

In the UK for example, it is illegal to access a computer system without the owner's permission. You could argue that the TOS set out the terms under which the owner is prepared to give permission to access their system, and if you violate them, you don't have permission to access the site, and are therefore breaking the law. I guess it is much the same in the US.

How do you deal with that? How do you draw the line between a website that is clearly open to the public and an intranet site that is only open to selected people?

Re:Depends on... (3, Insightful)

mysidia (191772) | about 2 years ago | (#42623505)

If the violation of ToS is due to an illegal action like posting things that are illegal both for the location of the site and the poster it should still land into the legal system, but the large volume of ToS violations should at most render the offender a permanent banning from that site or in milder cases a temporary ban.

Evading the ban, or continuing to access the site after ordered not to, by the owner, should land you in jail :)

Re:Depends on... (4, Insightful)

anagama (611277) | about 2 years ago | (#42623815)

Why? I mean seriously why does everything in America have to involve jail. Do you really think that makes us safer? Eventually somebody will do the math -- 35 years for TOS violations, 15 for rape -- and figure that rape looks like a better deal. You know, if your going to do the time, might as well do a crime to fit it. And that ultimately makes us all less safe. That's the problem with Americans' draconian attitudes.

Re:Depends on... (3, Insightful)

shentino (1139071) | about 2 years ago | (#42623517)

It's like going to a restaurant.

By default everyone is welcome.

Now the management can kick you out for any reason they want, for violating rules (and techinically even if you don't)

And unless/until that happens you're welcome.

If you go back, however, it's trespassing.

Re:Depends on... (2, Insightful)

anagama (611277) | about 2 years ago | (#42623823)

And just how much time could you be threatened with for that real world trespass? Days -- maybe a month or two at most. But apparently for digital trespass, the correct measure is virtually the rest of your life apparently.

Redundant (2)

Pf0tzenpfritz (1402005) | about 2 years ago | (#42623697)

Yes. But the illegality of that action is completely independent from the site's ToS. ToS just do not belong in criminal law. In fact they are there almost nowhere else in the world.

Re:Depends on... (0)

Anonymous Coward | about 2 years ago | (#42623753)

How did this get modded insightful?

Re:Depends on... (0)

Anonymous Coward | about 2 years ago | (#42623825)

But, those things are already illegal, there's no reason to add violating the ToS on top of that other than to force people to plea bargain.

Just make assholes illegal! (-1, Redundant)

kawabago (551139) | about 2 years ago | (#42623205)

It should be illegal to fill the prosecutor's chair with an asshole. That would solve the problem.

Re:Just make assholes illegal! (2, Insightful)

lister king of smeg (2481612) | about 2 years ago | (#42623225)

no the power will get to who ever is in the chair and turn them into an a-hole. power corrupts.

Re:Just make assholes illegal! (1)

SampleFish (2769857) | about 2 years ago | (#42623269)

You must secretly be an asshole, waiting for your day to shine. Power attracts certain dysfunctional personality types. It's not that good people are so rare but it is so rare that good people find themselves in powerful positions.

Re:Just make assholes illegal! (0)

Anonymous Coward | about 2 years ago | (#42623437)

You must secretly be an asshole, waiting for your day to shine. Power attracts certain dysfunctional personality types. It's not that good people are so rare but it is so rare that good people find themselves in powerful positions.

This is the most unfortunate problem inherent in any democratic system. The rule of the petty tyrants.

Re:Just make assholes illegal! (0)

Anonymous Coward | about 2 years ago | (#42623509)

Which is why the scope of democratic authority needs to be limited, so that megalomaniac nutcases must needs look elsewhere for their control fix.

Re:Just make assholes illegal! (1)

c0lo (1497653) | about 2 years ago | (#42623577)

You must secretly be an asshole, waiting for your day to shine. Power attracts certain dysfunctional personality types. It's not that good people are so rare but it is so rare that good people find themselves in powerful positions.

This is the most unfortunate problem inherent in any democratic system. The rule of the petty tyrants.

And it's easy to understand why: good people find better use for their time than power games.

Re:Just make assholes illegal! (1)

Pf0tzenpfritz (1402005) | about 2 years ago | (#42623713)

In other words: The chair fills the asshole...

Re:Just make assholes illegal! (1)

manicb (1633645) | about 2 years ago | (#42623845)

I'd settle for having somebody constantly watching over them... "Sure you want to do that? Looks like an asshole move to me!"

They could have a quota for identifying a minimum number of asshole prosecutors, and their career progression could depend on declaring powerful people to be assholes.

Re:Just make assholes illegal! (-1)

Anonymous Coward | about 2 years ago | (#42623227)

Good then Assholes like Aaron can be thrown in jail where they belong.

Re:Just make assholes illegal! (2, Interesting)

Anonymous Coward | about 2 years ago | (#42623383)

That is difficult to fix because senior prosecutors use their position to run for office or become a judge while junior prosecutors use their position to become senior prosecutors. Both of these require making a name for yourself. And there are no penalties for overcharging and intimidating defendants because the prosecutor can simply claim that they were following the law and that their plea bargains are reasonable (so reasonable that even innocent people commonly take them /sarc). Congress isn't going to change the laws because they are owned by the corporations. So the public is fucked. Nothing short of a revolution is going to fix this, and even then I am highly skeptical. The rich will loot the system, the politically connected will get away with high crimes (like HSBC and every other bank), and the common man will continue to get shafted. But at least with a revolution, we can occasionally put some of these fuckers against the wall.

Re:Just make assholes illegal! (1)

oztiks (921504) | about 2 years ago | (#42623419)

Sorry but the sheer mechanics of what your proposing totally and utterly mind boggling.

I'm pretty sure no matter how good the prosecutor is, his/her's a sphincter is actually going to occupy that chair. Then you're proposing that people who do sit in a particular chair should be thrown in jail?

Lunacy! but not so far fetched considering what the US Govt. did to Swartz.

No one reads the TOS. (-1)

Anonymous Coward | about 2 years ago | (#42623213)

I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.

Re:No one reads the TOS. (2, Informative)

Anonymous Coward | about 2 years ago | (#42623291)

I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.

Fails. Firstly other party is unaware of the terms prior to the hand shake and as you will remember from 1st year law school, past consideration is no consideration. Even if they were it still fails for lack of consideration: the other party suffers a detriment both in paying $20 and in shaking your hand, so the consideration only flows in the same direction ... twice. :p

Re:No one reads the TOS. (4, Insightful)

c0lo (1497653) | about 2 years ago | (#42623561)

I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.

Even if they were it still fails for lack of consideration: the other party suffers a detriment both in paying $20 and in shaking your hand, so the consideration only flows in the same direction ... twice. :p

Easy fix: switch the places between the hand and the ToS... put the hand in the backpack (detach it if necessary) and offer the ToS to be shaken.

Re:No one reads the TOS. (2)

lister king of smeg (2481612) | about 2 years ago | (#42623569)

I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.

Fails. Firstly other party is unaware of the terms prior to the hand shake and as you will remember from 1st year law school, past consideration is no consideration. Even if they were it still fails for lack of consideration: the other party suffers a detriment both in paying $20 and in shaking your hand, so the consideration only flows in the same direction ... twice. :p

I believe that is how most TOS and EULA's seem to work anyway.

Re:No one reads the TOS. (2)

xenobyte (446878) | about 2 years ago | (#42623705)

Wrong.

Courts have upheld the ToS/EULA contained within a shrink-wrapped bundle in a way unreadable from the outside that states that by opening this bundle you agree to the contents and forfeit any rights to return the merchandise except where covered by warranty. Microsoft used these for a decade.

The correct way to handle the Microsoft EULA was to not open it and by other means access their website, read the EULA there and then you'd still have the option to return everything. Later they simply packaged their EULA in a separate loose pamphlet and only shrink wrap software and manuals.

Actually, most ToS are also 'impossible' - they usually state "...by accessing this site you agree to..." but you need to access the site in order to read that. which means that simply by reading the ToS you agree to them.

Re:No one reads the TOS. (1)

Scarletdown (886459) | about 2 years ago | (#42623783)

I have a document in my backpack; my personal ToS. It states that everyone who shakes my hand must give me $20. By shaking, they agree.

Fails. Firstly other party is unaware of the terms prior to the hand shake and as you will remember from 1st year law school, past consideration is no consideration. Even if they were it still fails for lack of consideration: the other party suffers a detriment both in paying $20 and in shaking your hand, so the consideration only flows in the same direction ... twice. :p

So put the TOS document in shrinkwrap, then it should be binding.

While I think this is ostensibly a good idea... (5, Informative)

Omnifarious (11933) | about 2 years ago | (#42623231)

While I think this is a good idea, I think that it's really too superficial. It very narrowly addresses a very specific problem with the law.

There are two really great little tidbits I found online that talk about what the actual problems with the law are:

The first link is actually a really great series that provides a very nice explanation for a lot of things about how criminal law works.

Re:While I think this is ostensibly a good idea... (0)

Anonymous Coward | about 2 years ago | (#42623363)

Sorry, but your comic strip is full of shit.

I work in a very lightly regulated industry and we still spend a great deal of time on compliance with local, state, and federal laws. The Lacey Act prohibits receiving illegally harvested wildlife, it's a good law serving a good purpose. If his business is Turtle Soup and he has nation wide suppliers then YES, YES, YES, HE ABSOLUTELY SHOULD KNOW IF ONE OF THEM IS VIOLATING FEDERAL LAW. If he makes rare, Madagascar turtle soup he absolutely should know whether he can harvest Madagascar turtles. This is called "due diligence" and the fact that the artist knows nothing about it tells me that the artist has obviously never done much beyond artistry. If you run a hospital you comply with literally thousands of regulations that may only apply to certain parts of your operation at certain times, you're telling me Turtle Soup guy can't audit his vendors?

Felony Abuse (5, Insightful)

velvet_stallion (2623191) | about 2 years ago | (#42623233)

It is high time we rollback the number of crimes that result in felony convictions. The "Get Tough On Crime" era only resulted in overstretched state budgets and the creation of an entire underclass of citizens who are barred from certain employments, voting, etc. just because politicians sought to score political points in order to get re-elected. There is a very stark contrast to what the term "felon" implies with regards to the seriousness or violence of the crime, and the rather lackadaisical manner in which it is applied in the legal context.

Re:Felony Abuse (2, Interesting)

symbolset (646467) | about 2 years ago | (#42623321)

Well we are talking about some serious crimes here. 6 months divided by 13 felonies is like what, 14 days each?

Yeah, maybe at least a year for a federal case, or its disproportionate to call it a felony and ruin a guy's life over.

Re:Felony Abuse (0)

Anonymous Coward | about 2 years ago | (#42623781)

6 months was the leveraged plea bargain not the actual sentence, not even the mandatory minimums.

Re:Felony Abuse (4, Insightful)

anagama (611277) | about 2 years ago | (#42623839)

Get off your Smug Horse because that's not how it works -- even with the "six month" plea agreement he could have spent years in jail, maybe decades:

Some have blithely said Aaron should just have taken a deal. This is callous. There was great practical risk to Aaron from pleading to any felony. .... More particularly, the court is not constrained to sentence as the government suggests. Rather, the probation department drafts an advisory sentencing report recommending a sentence based on the guidelines. The judge tends to rely heavily on that "neutral" report in sentencing. If Aaron pleaded to a misdemeanor, his potential sentence would be capped at one year, regardless of his guidelines calculation. However, if he plead guilty to a felony, he could have been sentenced to as many as 5 years, despite the government's agreement not to argue for more. Each additional conviction would increase the cap by 5 years, though the guidelines calculation would remain the same. No wonder he didn't want to plead to 13 felonies. Also, Aaron would have had to swear under oath that he committed a crime, something he did not actually believe.

http://cyberlaw.stanford.edu/blog/2013/01/towards-learning-losing-aaron-swartz-part-2 [stanford.edu]

*FUCK* *YEAH* (0)

Anonymous Coward | about 2 years ago | (#42623653)

And this slashdot post is the start of it! Go! Go! Go!

Feel good law for political gain (-1)

Anonymous Coward | about 2 years ago | (#42623245)

This is a politically expedient feel good law that would not have prevented Aaron's situation. Please read the discussion over at Reddit or HN for details. In short, Aaron would have still been facing charges for unauthorized access for changing his IP and MAC addresses to avoid bans, and unauthorized access for using an ethernet port that he trespassed to access. These things seem stupid to techies, but that is exactly why we need *real* reform of overbroad laws!

Re:Feel good law for political gain (0)

Anonymous Coward | about 2 years ago | (#42623319)

It still would be a useful reform. Remember that woman who 'trolled' a teenager into killing herself? She was almost prosecuted for violating the MySpace TOS, which would have been a terrible precedent, as it would make trolling actually illegal.

Re:Feel good law for political gain (2)

TapeCutter (624760) | about 2 years ago | (#42623553)

Yes, it would have been a terrible precedent to use that law for that purpose, but the fact she escaped any legal responsibility for her predatory behavior is also a terrible precedent. From my POV the US justice system failed to deliver justice in both cases.

Re:Feel good law for political gain (1)

shentino (1139071) | about 2 years ago | (#42623535)

Changing mac and ip addresses for the purpose of evading a ban is much closer to the sort of trespass the CFAA was designed to prevent than mere tos violations.

It's like a bar.

You can get 86'ed any time by the bartender but that's the worst they can do.

Go back and it's trespassing

Too little too late (4, Insightful)

dyingtolive (1393037) | about 2 years ago | (#42623253)

Fantastic fucking idea. You know what would have made it better? If it never was a felony to begin with.

Don't mod this up. Common sense doesn't need moderation points. I'm venting.

Re:Too little too late (2, Funny)

Cryacin (657549) | about 2 years ago | (#42623405)

Don't mod this up. Common sense doesn't need moderation points.

Mod him DOWN!!!

Common sense has no place on slashdot!

Re:Too little too late (2)

dyingtolive (1393037) | about 2 years ago | (#42623543)

That's fine too. I have karma to burn and I'm still too angry about this to care.

I mean, seriously, the guy had promise and vision. I don't consider myself a depressed person, but I'd probably off myself too if JSTOR fucked me in a federal court and then rubbed salt in the wound by giving away for free everything they fucked me over for.

Re:Too little too late (0)

Anonymous Coward | about 2 years ago | (#42623495)

Actually, Slashdot should have a running poll to see how long Ortiz stays in office. I'd say you wouldn't need longer than six months as being the longest and the winner's receive a free Slashdot T-Shirt or Coffee mug.

This is stupid (0)

Anonymous Coward | about 2 years ago | (#42623281)

CFAA needs to be repealed for being too broad.
ToS violations were already ruled legal in U.S. vs Drew

What the fu0ck (-1)

Anonymous Coward | about 2 years ago | (#42623285)

That's all you got a bithzcez? I did n't read this at all but fuck you faggto nerds.

I'm confused... (1)

kgeiger (1339271) | about 2 years ago | (#42623287)

Aren't violations of contracts (like ToS) subject to civil law instead of criminal law?

Re:I'm confused... (4, Insightful)

fnj (64210) | about 2 years ago | (#42623337)

Aren't violations of contracts (like ToS) subject to civil law instead of criminal law?

A law, duly enacted, which makes it a felony to violate such ToS, makes criminal procedure apply. That law has to be fixed, and then that particular violation of contract will revert to the normal civil procedure.

Re:I'm confused... (2)

Jane Q. Public (1010737) | about 2 years ago | (#42623529)

"A law, duly enacted, which makes it a felony to violate such ToS, makes criminal procedure apply. That law has to be fixed..."

The thing is: Congress probably never intended it to apply to a mere violation of TOS. The ultimate problem is that it is vague, and some prosecutors have chosen to interpret it that way.

The central issue is not "How can we prosecutors interpret this law to put more people in jail for worse 'crimes'?" There are actually two other questions here: "What was the intent of Congress?" and "Does that represent justice?"



"The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." -- James Wilson, Founding Father.

Re:I'm confused... (2)

Pinhedd (1661735) | about 2 years ago | (#42623389)

Generally, but not always.

Breach of contract is something that is generally settled in civil court but there are some laws which can add criminal teeth to breaches of contract.

misappropriation of trade secrets is a breach of contract which can have contractual, civil, and criminal remedies depending on what's involved.

Re:I'm confused... (0)

Anonymous Coward | about 2 years ago | (#42623461)

I'm no lawyer, but it clearly can't be that simple. Unauthorised access to a computer/network for example is and should be a crime. But the terms of what access is granted and how is and should be entirely up to the operator of the device(s). The terms on which access to the service is granted would be a ToS.

Re:I'm confused... (1)

c0lo (1497653) | about 2 years ago | (#42623525)

I'm equally confused...
A Democrat not siding with the ...IAA of the content providers??

Its not like fixing tech problems! (1)

xs400 (894967) | about 2 years ago | (#42623307)

Ever notice how technical problems HAVE to be fixed? or else? How sportsmen are banned for life? This never happens to people who commit fraud in finance (or create financial instruments that simply suck money from us) or those who frame laws that are faulty! The real world is ruled by the powerful and logic does not apply.

Re:Its not like fixing tech problems! (1)

Cryacin (657549) | about 2 years ago | (#42623415)

You just don't understand THEIR logic.

Re:Its not like fixing tech problems! (1)

Jane Q. Public (1010737) | about 2 years ago | (#42623559)

Greed is not logic.

Re:Its not like fixing tech problems! (1)

xenobyte (446878) | about 2 years ago | (#42623771)

Greed is extremely logical. It's self-gratification on a feedback loop.

This is sad (1)

Sigvatr (1207234) | about 2 years ago | (#42623311)

Leave the damn guy alone.

Re:This is sad (0)

Anonymous Coward | about 2 years ago | (#42623443)

He was a hacktivist. It only makes sense that his death be abused for political gain, just as he or any other true hacktivist would have done as per the hacktivist philosophy.

Don't reward suicide. (1)

Anonymous Coward | about 2 years ago | (#42623317)

This might be a good law, but don't reward suicide by naming it Aaron's law. Troubled fools will be offing themselves left and right for their favorite causes.

Re:Don't reward suicide. (0)

Anonymous Coward | about 2 years ago | (#42623587)

That's all the more reason to do it. Martyrdom is beneficial in that it at least rids us of martyrs.

Profit (3, Insightful)

Improv (2467) | about 2 years ago | (#42623357)

I'd probably draw a distinction between when money changes hands relating to TOS-violations, and otherwise. There need to be tools to fight botters, for example.

Re:Profit (0)

Anonymous Coward | about 2 years ago | (#42623411)

>>There need to be tools to fight botters, for example.

Yes, but those tools need to technical, not legal.

Re:Profit (1)

mysidia (191772) | about 2 years ago | (#42623533)

I'd probably draw a distinction between when money changes hands relating to TOS-violations, and otherwise. There need to be tools to fight botters, for example.

If the ToS and the site requires you represent something, that the organization running the site is entitled to rely upon the accuracy of due to the ToS requirement, and you intentionally make a false representation, in violation of the ToS, in order to profit from the situation, and you do derive that benefit.

They ought to still be able to nail the violator with wire fraud charges

Repeat after me: (3, Insightful)

CuteSteveJobs (1343851) | about 2 years ago | (#42623629)

The Terms of Service are a contract. For breach of a contract you are entitled to economic damages*. You are not entitled to throw the other party in jail. Only the government can imprison people and only when the breach is criminal. See post below.

*JSTOR could have sued him for lost earnings or copyright, but chose not to.

Re:Repeat after me: (2)

mysidia (191772) | about 2 years ago | (#42623751)

The Terms of Service are a contract.

The ToS can only be a contract, if the person who signed up to access the site, furnished accurate information, and actually intended to abide by the terms. If you sign a document, in real life, supplying a false name, or false address, or someone else's identity, and/or have no real intention whatsoever to make good on the terms, while you take off with whatever thing of value you received from the other party, then in this case, it's not merely a breach of contract, but a crime in real life, you go to jail, and you should go to jail if you do that online, as well.

A breach of contract is a failure to satisfy all your obligations, but before you can be merely in breach, you have to have actually have agreed to the contract in good faith, and intended at one time, to adhere to the contract. Deceiving the other party into thinking you two have an agreement, so you can rob them virtually or physically: is fraud.

For a document to actually be a contract, it has to meet certain legal tests. For a document to be a contract, there has to be a meeting of minds, and there has to be consideration such as payment, or items of monetary value, received by both parties.

If they furnished false information, eg a fake name, when a real name was required, then they have committed a criminal act that goes far beyond simple breach of contract.

In most cases a ToS will not be a contract, because nothing prevents you from accessing the site without verifiably agreeing to it. The ToS is something else.

A ToS is more like a "No trespassing" sign; or more like a "No trespassing; No admittance, except if you follow these rules ...."

In the event, you don't follow the rules, then you committed the crime of trespass.

Re:Profit (0)

Anonymous Coward | about 2 years ago | (#42623591)

"botters"

That word. I do not think it means what you think it means.

Re:Profit (1)

c0lo (1497653) | about 2 years ago | (#42623601)

Civil or commercial/contractual laws should be enough even for money changing hands.

Re:Profit (1)

TubeSteak (669689) | about 2 years ago | (#42623803)

I'd probably draw a distinction between when [...], and [...]

Then narrow the law.
Far too many of our laws are written with the broadest possible application,
even if the legislative intent is narrow and focused on a specific problem.

Like how the anti-terrorist Patriot Act is mostly being used to go after drug dealers, money laundering, and organized crime.

You know we have a problem when... (2, Insightful)

Anonymous Coward | about 2 years ago | (#42623377)

You can get more time for breaking a ToS than for...

- Manslaughter
- Robbing a bank
- Child porn with intent to distribute

among other things. Pathetic.

http://thinkprogress.org/justice/2013/01/14/1441211/killers-slavers-and-bank-robbers-all-face-less-severe-prison-terms-than-aaron-swartz-did/

Gotcha! (3, Funny)

Anonymous Coward | about 2 years ago | (#42623475)

1) Your navigation to this website is considered agreement to the following terms
2) You shall not view, consider or think about this website
3) Breach of these conditions will result in all your base belong to us.

I for one (3, Funny)

stms (1132653) | about 2 years ago | (#42623483)

Think that if you violate a TOS you should land in jail it only makes sense.
--
Note: by reading this comment you agree to pay me a fee of $1,000,000 if the fee is refused I reserve the right to throw you in jail.

Re:I for one (1)

88Seconds (242800) | about 2 years ago | (#42623643)

Having read your post and seeing the ToS you apply I was wanting to know how to make the payment.

Please can you post the following details so payment can made most quickly

Full Name
SSID Number
Address
Bank Account Details
Credit Card Details
Email Address
Telephone Number(s) - both landline and cellphone

Thanks in advance

Re:I for one (0)

Anonymous Coward | about 2 years ago | (#42623711)

I think you should be caned for using sarcasm online
--
Note: by making a thread you agree to let me fuck it up, I reserve the right to ignore anything else you may post.

Conduct of Federal Prosecutor Carmen Ortiz (5, Interesting)

CuteSteveJobs (1343851) | about 2 years ago | (#42623501)

Yes, the law is supposed to distinguish between a non-criminal civil dispute between two private parties (Aaron and JSTOR) and a crime which is "an act so horrendous it is against society" - I am paraphrasing a law professor. Aaron's acts don't come close to that. Yet there he was looking at prison.

ArsTechnica has a good article on this case, which quotes Columbia law professor Tim Wu on the appalling behavior of federal prosecutor Carmen Ortiz:
In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest... The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm... Today, prosecutors feel they have license to treat leakers of information like crime lords or terrorists. In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life.
http://arstechnica.com/tech-policy/2013/01/opening-arguments-in-the-trial-of-public-opinion-after-aaron-swartz-death
http://www.newyorker.com/online/blogs/newsdesk/2013/01/everyone-interesting-is-a-felon.html
http://www.guardian.co.uk/commentisfree/cifamerica/2009/nov/17/silverglate-three-felonies-book

Academic publishers have been price gauging universities and students for a long time, but to their credit at least JSTOR had the brains to tell the feds to back off. Oritz should have listened to them. Their behavior is merely greedy. Hers is unforgivable: there is no place in government for public officials who abuse their power and harm the public for their own personal advantage.

http://www.guardian.co.uk/science/2012/apr/24/harvard-university-journal-publishers-prices [guardian.co.uk]
http://enculturation.gmu.edu/knowledge-cartels [gmu.edu]
http://boingboing.net/2010/01/03/prescription-for-con.html
http://academhack.outsidethetext.com/home/2012/ending-knowledge-cartels/ [outsidethetext.com]

Re:Conduct of Federal Prosecutor Carmen Ortiz (0)

Anonymous Coward | about 2 years ago | (#42623675)

I think what you and the majority have failed to mention is that the American justice system is already designed for this. The case did. NOT. finish. trial. Read that again. That Kozinski example you cited? The judge was able to throw out that conviction because that similar case went through trial. There was a conviction. How about that? Aaron Swartz was convicted of nothing, because Aaron Swartz decided to forego the trial and kill himself. Further, if the bar for deciding whether a prosecution goes forward is simply does the victim of a crime want to proceed, then I guess we can go ahead and stop prosecuting any crimes where the accused has the ability to intimidate the victim.

Re:Conduct of Federal Prosecutor Carmen Ortiz (2)

anagama (611277) | about 2 years ago | (#42623881)

Right -- after you're bankrupted, your career destroyed, maybe even some time in jail, your conviction gets tossed. Do the Feds give you your life back? Fuck no. It's a lose/lose situation caused by people who lost sight of their job -- to protect people from bad guys, but the Feds are more interested in making everyone a "bad guy" because it means they just have more power. The power of tyranny and we get to suck it up while they enrich their benefactors.

Great cases make bad law (-1, Troll)

raymorris (2726007) | about 2 years ago | (#42623503)

Making laws that affect millions of people need on ONE sensationalist case is how you end up with really bad law. Sometimes, breaking into a computer system and stealing stuff, and crashing the system, SHOULD be crime. That's true even if the breaking in could be called a violation of a TOS.

The case that inspired this is mostly fictional, too. It didn't go down the way the activists like to pretend. Aaron didn't just violate a TOS. He physically entered a network closet he shouldn't have been in and hid computer equipment in there that crashed the network, so other people couldn't use it. The activists like to point out that he worked for "the university". Yeah, he worked at HARVARD and illegally went into MIT's building and tapped into their network with surreptitious equipment hidden in their network closet.

Also keep in mind, he was never convicted of anything. This "victim of the legal system" never spent one day in jail. He could have presented his case to a jury, but apparently he thought that all 12 members of a jury would unanimously agree that his conduct deserved a felony conviction after they heard the facts. The fact that he didn't expect that at least one of the twelve would side with him shows he had a guilty conscience. The prosecutor was asking for six months minimum security. His lawyer woulda have said probation or suspended sentence and he would have gotten off with some probation or a fine. New laws based on this case just aren't needed. He showed that he knew he was guilty, so the probation he would have received was deserved.

Re:Great cases make bad law (0)

Anonymous Coward | about 2 years ago | (#42623565)

Well what a happy bouncy chirpy kind of guy you are. You would probably look at six months jail as a chance to win six months of free rent, food and medical care. Courts are very stressful places. You've obviously never been before one. Don't sit on your high horse and tell us how wonderful and fair they are, because you don't know shit.

Re:Great cases make bad law (-1)

Anonymous Coward | about 2 years ago | (#42623583)

The guy was a felon. He did society a favor by killing himself so these crimes he rotunely committed never happen again.

Re:Great cases make bad law (2)

88Seconds (242800) | about 2 years ago | (#42623687)

The guy was a felon

No he was an alleged felon. He had not been convicted of any of the crimes he allegedly committed.

But then since you're posting anonymously, you don't appear to me to be prepared to stand behind the statement you made.

Re:Great cases make bad law (0)

Anonymous Coward | about 2 years ago | (#42623717)

Well let's just stop prosecuting criminals at all then, since some of them might be sensitive flowers that just can't handle facing consequences from their deliberate actions.

U.S. prisons are notoriously shitty, but you can't use that as an excuse that no one should serve a sentence for any kind of time. Half a year of prison is not an extraordinary sentence.

Re:Great cases make bad law (5, Insightful)

seebs (15766) | about 2 years ago | (#42623663)

That is some serious bullshit there. The "guilty conscience" thing? Seriously, that's just crap. That is not how people work, and that is not how reality works. There are lots of people who know perfectly well that there is a law they have technically broken, but who do not feel guilty about it at all -- but who might not be surprised to face jail time if a prosecutor happened to pick them to make an example of. The problem with this, apart from the victim-blaming, is that you're assuming that "violated a law" and "guilty" are the same thing in any kind of ethical sense. Similarly, "he knew he was guilty, so the probation he would have recieved was deserved."

This doesn't logically follow, because "deserve" is a moral claim, but you're basing it on the legal system. Legal systems are not moral systems. You can quite easily be fully aware that you have done a thing which is prohibited by a law, but not feel that you deserve jail time for it. Or you might feel that a misdemeanor charge that's in some way related to what you did is justified, but that multiple felony counts aren't.

The fact is, nothing he did merits years of jail time, and the claim that the prosecutor was "asking for" six months minimum security is highly misleading at best. They were, quite clearly, aiming to make an example of him. Look at previous cases Ortiz prosecuted against people who could afford defense teams, and tell me how "deserved" those outcomes were.

Long story short, even if we ignore the fact that he was depressed, this was a crazy thing and your attempts to make it look less crazy are disturbing. The just world fallacy is called a fallacy because it is not actually valid reasoning. Your attempts to make yourself feel okay with the world by pretending that what happens is okay and justified are unpersuasive at best. And yet. We know he was depressed, and we know a fair amount about what depression does to people's ability to evaluate things and make decisions. It's bad enough that prosecutors are trying really hard to make dramatic examples of people by going after huge piles of charges without regard to the actual severity of the underlying acts; cherry-picking for depressed people because they're easier to bully is despicable. So's trying to defend it.

Proof of Tyranny (0)

Anonymous Coward | about 2 years ago | (#42623557)

All the more reason to never allow infringement of your right to bear arms.

rediculous (0)

Anonymous Coward | about 2 years ago | (#42623685)

If the violation amounts to large scale theft, it must be treated as a serious criminal matter.

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