It’s not because the law got any better...
Seventeen highlights the absurdity of giving terms of service the force of law under the CFAA. It boasts a readership of almost 4.5 million teen readers with an average age of 16 and a half, and yet, until today, the average reader was legally banned from visiting Seventeen.com. That’s right, for a magazine dedicated to teen fashion, the publisher’s terms explicitly restricted online access to readers 18 and older.
April 7, 2013
"If you are 17 or under, a federal prosecutor could have charged you with computer hacking just for reading Seventeen magazine online..."
"... until today."
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42 comments:
It's so very very easy to commit a felony.
wow ... news sites restrict reading the news to 12 and older?
My dad (who began his career in working for newspapers) started me on the habit of reading the paper when I was 10. He read it cover-to-cover in the morning, I'd read it after I got home from school and we'd discuss one or two articles from it over the dinner table.
Who knew he was engaged in child abuse?
It's so very very easy to commit a felony.
The three strikes law... I'm picturing a 2 time felon going to a library logs on to Seventeen Magazine... and goes to jail for the rest of his life.
I don't know whether to laugh or cry... truth?... I laughed... things like that do not happen.
No reader is "Illegal"!
Now, that is a nice catch by the EFF. Lovely!
Seventeen highlights the absurdity of giving terms of service the force of law under the CFAA
It does no such thing. This is like the argument of legalizing pot versus legalizing all drugs.
Clearly, the issue is that the terms were too onerous when it came to Seventeen magazine, not that there should be no force of law in terms of service agreements.
The terms of service simply should not have restricted people under the age of 18 from reading 17 magazine.
The basic problem here is that the CFAA is already being interpreted too broadly. The feds have gotten away with interpreting it to cover not just hacking into computers, but also exceeding terms of service or authorization. These are typically in that click-through screen of fine print that you need to "accept" before being allowed to access something. And, sometimes what you agree to with those "agreements" is to allow the party offering them to change the terms on the fly. It is often your responsibility to keep up-to-date on any changes in all those online agreements that you have made.
So, what is the response of our noble leaders to this? Apparently, it is to toughen up the law, making it easier to get felony convictions. That is what we are facing right now with Congress - a strong move to make the CFAA even easier to violate. (I should note that Congress showed that they were open for business selling IP rights (i.e. to being massively bribed) by their passage of the America (Dis)Invents Act patent deform, fueled by hundreds of millions of dollars of lobbying. Crony capitalism at its worst).
This legislation is being pushed by a lot of big companies. But, I expect that there will be a lot of online pushback, if it gets close to a vote.
The EFF's article Congress’ New CFAA Draft Could Have Put Aaron Swartz in Jail For Decades Longer Than the Original Charges goes into more depth here. BTW - overall, I think that the EFF is one of the better advocacy groups around. Got to know them and their work in the very early 1990s when the Internet was brand new and Mike Godwin (of Godwin's Law fame) was their first attorney.
Clearly, the issue is that the terms were too onerous when it came to Seventeen magazine, not that there should be no force of law in terms of service agreements.
I respectfully disagree. These click through agreements are contracts, and we now see the feds using all their might, including prosecution and prison, to enforce contractual provisions that are often so egregious and one sided on the side attempting to enforce them as to be unconscionable. Why should the feds be involved in what would normally be simple contractual issues? My answer is crony captialism at its worst.
Remember, the law was designed to prosecute actual hackers, people who tried to hack into other people's computer. And, that is the sort of thing that criminal laws are designed for. Not for enforcement of unconscionable contracts that no one (even those of us who have written them) read.
Just because Hearst Publications makes the absurd terms of service that people under 18 can't read Popular Mechanics, that doesn't mean that there isn't some validity in having terms of service that limit content to people under a certain age.
And its not as if these things are not extremely easy to get around.
Just the other day I watched the R rated trailer for evil Dead with the gore in it. And they have you put in your age ahead of time to make sure can view the content.
Even though there is no reason that you couldn't simply put in a year that suggests you are old enough to view the material, doesn't mean that there shouldn't be a restriction on that material for people under a certain age.
We wouldn't let them into Evil Dead the movie without an adult, why would we have it freely available on a website for anyone to see?
Now, is there a reason to restrict Popular Mechanics the same way that there is to restrict the Evil Dead trailer.
I certainly don't think so, but that's a company's decision to make. They can suffer the consequences of people not going to their website who might otherwise go.
Bruce Hayden wrote:
I respectfully disagree. These click through agreements are contracts, and we now see the feds using all their might, including prosecution and prison, to enforce contractual provisions that are often so egregious and one sided on the side attempting to enforce them as to be unconscionable. Why should the feds be involved in what would normally be simple contractual issues? My answer is crony captialism at its worst.
HOw about in the case where the site is setup for adults only? Like a porn site? Can there be agreements there that restrict viewing?
Also, even though Hearst Publications had that restriction in place for their websites, how many times did the DOJ go after customers for reading 17 magazine who were under 17 years of age?
I seem to remember Seventeen, back when my sister got it, was all ads, anyway.
Darleen said...
wow ... news sites restrict reading the news to 12 and older?
Probably ought to be at least 18.
Lewinsky.
Anita Hill.
Edwards.
And Bruce, citing your article, I note this paragraph:
The CFAA, of course, is also the computer trespass law that prosecutors misused to hound the late activist and Internet pioneer Aaron Swartz.
That there is a prime example of a biased article masquerading as news. THe prosecutors did not houd him to his death, he did that on his own.
That's like Chris Rock's joke about how some were saying Biggie and Tupac were assassinated.
ANd chris Rock said "MLK was assassinated. Malcolm X was assassinated. THem n******s was shot!"
Meaning, just beause an organization against the law in question says something doesn't make it so. It is merely pushing an agenda which is counter to the laws.
The three strikes law
Anecdotal, but I've handled 3 strike cases for years. Never are these people "two felon" guys.
They have rap sheets miles long.
Just part of the effort to make sure everyone lives according to prosecutorial discretion, preferably federal but as long as any government prosecutor has authority to put you in jail they are happy.
The three strikes law... I'm picturing a 2 time felon going to a library logs on to Seventeen Magazine... and goes to jail for the rest of his life.
IANAL, but I find it difficult to imagine a two-time felon under 18 being at liberty to go to the library in the first place.
Can people under 18 even agree not to read things if they aren't 18?
Doesn't anyone here find it MORE than troubling that the government would allow private corporations to create, (i.e., the functional equivalent of legislate) in effect, criminal law all on their own hook? I thought that process in a democracy/Republic is supposed to be reserved exclusively for the people's representatives via open vote in the legislature.
Bruce, you're a better man than I for respectfully disagreeing with someone who thinks contract law should be a criminal matter. Never mind that the particuar contract in question is so weak it isn't even enforceable in civil law.
Blogger:
"While Blogger values and safeguards political and social commentary, material that promotes hatred toward groups based on race or ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity is not allowed on Blogger."
Whores:
"I hope that darky feels that pain every night. Hell, I hope every darky in America feels that same pain every night---serves them right for ruining this country.
Dirty savages."
So who's going to the pokey house, Althouse or Whores?
I was under the impression contracts with people under the age of majority weren't enforceable in a court of law.
Also, I personally am concerned about digital rights, because I write software (while mine goes with a piece of hardware, I can see the POV of others whose software does not).
The software industry would crumble if people could simply copy anyones app.
Prosecutors use discretion when they prosecute. So even if it's hypothetical that a prosecutor could try to jail someone who was 16 for reading 17 magazine, how likely is it that a prosecutor would actually do that?
Just because in extreme hypotheticals one could see an abuse of the law it doesn't mean that in other cases where the law might actually be applied it doens't serve a valuable purpose.
Facebook and Bebo set a minimum age limit of 13 for users to register online and Myspace sets the limit at 14.
What does that mean in terms of the conversation, I'm not sure. Except that there are age restrictions on social media sites.
Are those age restrictions bound by law? Well, if not, why are there age restrictions? I could theoretically see an issue where a Facebook gets sued for not better monitoring who accesses their site if something bad happens to a child while on the site the same way a bar could be in trouble for letting underage kids in the bar and not carding them and having one of them drink themselves to death.
"Well, if not, why are there age restrictions?"
So Facebook can CYA if some 12 year old gets snared by a sexual predator and can say: "That kid wasn't even supposed to be here!"
In the case of a porn site the issue of an age of consent is far more cut and dried, but even here I would see that the liability would be more on the companies side for not enforcing its' age policies rather than the customer for abusing them. But each case is based on specifics. So could there theoretically be a reason for a prosecutor to prosecute a customer who violates the age restrictions of a web site? absolutely.
virgil xenophon wrote:
Doesn't anyone here find it MORE than troubling that the government would allow private corporations to create, (i.e., the functional equivalent of legislate) in effect, criminal law all on their own hook? I thought that process in a democracy/Republic is supposed to be reserved exclusively for the people's representatives via open vote in the legislature.
Are the companies creating the law though or are they just having SLA or licensing agreements that the govt says are binding? If this law weren't passed for example, Heart publications still might have a license agreement that says who can or can't go on their website and base it on the persons age, just as facebook does now.
Jr565 brings up an interesting problem here. Contracts with a minor are void able in most jurisdictions by the minors unless for necessities. And, thus, if a 17 year old lies about his age and is caught, he can just void the click-through agreement. And, voila, no breach, and, thus no crime.
Still doesn't detract from argument that CFAA has been expanded by the DoJ to criminalize breach of click-through licenses that almost no one reads, while most contract breaches remain uncriminalized.
Lawyers are really good at fucking things up. Congress and the white house being a perfectly good example.
Darleen said...
wow ... news sites restrict reading the news to 12 and older?
My dad (who began his career in working for newspapers) started me on the habit of reading the paper when I was 10. He read it cover-to-cover in the morning, I'd read it after I got home from school and we'd discuss one or two articles from it over the dinner table.
Who knew he was engaged in child abuse?
When I was a kid, my dad used to watch the news when he got home. I hated the news because I thought it was boring. Well for a 7 year old it is boring. He told me that one day when I was older I would appreciate it. And I did, but now that leftards have completely co-opted the telling of their truth, I'd rather just go back to watching cartoons like I did back then.
To paraphrase Professor Homer Kripke, "It shall be unlawful. [A private website] shall define "It." This has to be an unconstitutional delegation.
I'm well over eighteen, and I only read Seventeen online for the articles.
Vodka and candy cigarettes, baby.
@Bruce Hayden
Oh, for a time machine and a seat on the Supreme Court when it decided Wickard.
The government's power to prosecute anyone for violating a website's terms of use -- lying about your age or weight on match.com, for example -- appears to be an open question. It's as open as what might be considered "offensive content," it seems to me -- and all because of some Internet server in Virginia. I'd sleep much better if I were wrong . . .
And @jr565, a particular prosecutor's discretion not to enforce, I mean prosecute what you or I might say is a ridiculous "term of use"? Well, that gives me no quarter.
Though I didn't spend hours researching the question, I poked around a little, and the Drew opinion was chilling, to say the least. (Drew was the MySpace case).
Yes, the result was correct. But the court seemed to accept -- without much pause -- that the commerce clause lets the government turn innumerable breaches of contract into criminal offenses. The Internet is the Fed's new playground.
http://www.volokh.com/files/LoriDrew.pdf
Making everyone vulnerable to criminal prosecution is an expedient means to ratchet down control. People who make soft headed excuses for authority like pointing out that no one actually gets arrested for reading Seventeen so there's nothing real to gripe about are transparently expecting that authority will always be used for their benefit and against people of whom they disaprove. Slavish deference to capricious power erodes your humanity as quickly as power its self.
Any time now I expect a Ministry of Truth will become necessary so that all memory of freedom can be obscured and removed.
jr,
God ghu, man, why on earth do you think it's OK to hand prosecutors such a blank check? It's completely contempt for the concept of Rule of Law--one important part of which is that a person is supposed to be able to know ahead of time what's illegal behavior so he can avoid it--to answer a complaint about an over-the-top law that "it wouldn't be enforced very much".
Damn, damn, damn! Things are precarious enough with all the enemies of freedom on the left, without people like you--who should be allies--grabbing different parts of our civilizational infrastructure and trying to tear them down too.
If everyone is a felon it is very important not to anger the powers that be. That's the point of all this.
Submit.
Kirk Parker wrote:
God ghu, man, why on earth do you think it's OK to hand prosecutors such a blank check? It's completely contempt for the concept of Rule of Law--one important part of which is that a person is supposed to be able to know ahead of time what's illegal behavior so he can avoid it--to answer a complaint about an over-the-top law that "it wouldn't be enforced very much".
I don't. Just because a prosecutor brings a case doesn't mean that he's right to bring the case. The thing is, I think some of the critics of this are making hypotheticals that will never be borne out. For example, it says until todayslmeone could be charged with computer hacking because of seventeens magazines policy on its website. Yet has anyone been prosecuted for such transgressions? Not even close.
The thing is you can find the extreme hypotheticals that would make the law a mockery with every law be it laws against theft or even traffic laws. But finding those doesn't invalidate the law in the asea where its needed. So, we shouldn't undo a law simply because of a silly hypothetical that wont be borne out.
Plus, those pushing those hypotheticals are the same copy left advocates that are trying to lionize the Aaron Swartz's of the world and push their socialism (there I said it) and far leftism on the grounds of freedom that I don't believe they or anyone else are entitled to. So, I take any word they say with many a grain of salt.
Leif Bart wrote:
The government's power to prosecute anyone for violating a website's terms of use -- lying about your age or weight on match.com, for example -- appears to be an open question. It's as open as what might be considered "offensive content," it seems to me -- and all because of some Internet server in Virginia. I'd sleep much better if I were wrong . . .
there are many terms of usage, some worthy of protection under law, some not. And the govt is not going to care if you lie about your age or weight on Match.com unless in doing so you commit a greater crime through violation of said usage. Match.com might care, but the govt certainly won't.
The basic problem here is that the CFAA is already being interpreted too broadly. The feds have gotten away with interpreting it to cover not just hacking into computers, but also exceeding terms of service or authorization. These are typically in that click-through screen of fine print that you need to "accept" before being allowed to access something
Here's what I'm saying.just because the CFAA could hypothetically be interpreted too broadly doesn't mean that it is or will be Interpreted too broadly. It would assume that those who would interpret it would apply the interpretation that would jail people simply for lying about their weight on Match.com. Why would the govt do that?
And lets take the reverse hypothetical. Should we assume that govt should enforce no service agreements anywhere? What about software license agreements for individuals or. More importantly other corporations that would violate them? I can't think of too many reasons why the govt would punish people for violating the terms of usage on a website, but that doesn't mean such instances don't exist.
You think that govt is going too far and needs to be reigned in. I think the Aaron shwartz's of the world go to far and need to be reigned in. (Tough fully recognizing that the govt itself can also exceed its authority).
Leit Bart wrote:
The government's power to prosecute anyone for violating a website's terms of use -- lying about your age or weight on match.com, for example -- appears to be an open question. It's as open as what might be considered "offensive content," it seems to me -- and all because of some Internet server in Virginia. I'd sleep much better if I were wrong . . .
there are many terms of use that the law could reference. But laws have to be written vaguely to a certain degree to encompass the principle. The law is not going to be able to narrow down every exception to the rule that might make it seem capricious to enforce it in those instances. Some of that must be left to prosecutors.
And @jr565, a particular prosecutor's discretion not to enforce, I mean prosecute what you or I might say is a ridiculous "term of use"? Well, that gives me no quarter. you'll find these exceptions in all laws. Just because you can find a hypothetical whereby someone could theoretically charge someone for violating a term of usage, doesn't mean that prosecutors would ever actually charge someone for violating that term of use. But that doesn't mean that because its absurd for govt to charge people for violating say, match.com's policy of being truthful in all answers that its never valid for govt to prosecute people for violating a web sites term of use.
" Should we assume that govt should enforce no service agreements anywhere?"
That's what civil suits are for.
Having a law that is selectively enforced at the discretion of a prosecutor undermines the rule of law. It is the difference between being a nation of laws and a nation of personality. One is impartial and one is whimsical.
David Gregory is a douche bag and should be treated the same as numerous innocent people who did little more than he when he flashed that army issue mag on TV. There are many stories of better people hounded by prosecutors who showed discretion for the rich influential anchor who sends his kids to the same private school as Obama. A school guarded by people with guns that the hoi poloi can't have. All of that discretion...
Can't believe nobody said it--The Law Is A Ass!
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