Althouse: The 9th Circuit just said "that if you tell people not to visit your website, and they do it anyway knowing you disapprove, they’re committing a federal crime of accessing your computer without authorization."

July 13, 2016

The 9th Circuit just said "that if you tell people not to visit your website, and they do it anyway knowing you disapprove, they’re committing a federal crime of accessing your computer without authorization."

If Orin Kerr is reading Facebook v. Vachani correctly.

53 comments:

Michael K said...: Wasn't it Jackson who said, "John Marshall has made his decision, now let him enforce it!"

I know that is disputed but it seems to apply here.; 7/13/16, 10:02 AM
James Pawlak said...: On a basis of history and reality, will the Feds actually prosecute such cases?; 7/13/16, 10:09 AM
Paddy O said...: Does this only count if people are hosting their own websites?; 7/13/16, 10:12 AM
Robert Cook said...: "Does this only count if people are hosting their own websites?"

That's what puzzled me. Most websites are hosted by servers external to the individual website owner's personal computer, so this ruling wouldn't seem to apply. Plus, how can one publish a website for public view and prohibit select individuals from visiting or viewing what you one has made public?; 7/13/16, 10:17 AM
Bob Ellison said...: "The record shows unequivocally that Power knew that it no longer had authorization to access Facebook’s computers, but continued to do so anyway."

The Unfrozen Caveman 9th Circuit's brains are too primitive to understand these new-fangled can-openers.; 7/13/16, 10:22 AM
Ignorance is Bliss said...: It seems to me there is a big difference between visiting a website and logging into a website. The whole point of registering users and requiring passwords is to control who has access to a system. The assumption should be that accessing the site with someone else's credentials is not authorized, even if the person whose credentials you are using gives you permission.

Any particular site could grant people permission to share their accounts and passwords, but such permission should not be assumed.; 7/13/16, 10:23 AM
Curious George said...: "The 9th Circuit just said "that if you tell people not to visit your website, and they do it anyway knowing you disapprove, they’re committing a federal crime of accessing your computer without authorization."

Shouldn't this say "...except if Hillary does it." Or is that assumed?; 7/13/16, 10:26 AM
Michael in ArchDen said...: What if you accidentally visited a website because you were just "extremely careless"?; 7/13/16, 10:27 AM
Bob Ellison said...: Lots of web sites not owned by Google have access to my Google credentials. Those could be contracts between them and Google, and authorized by me. Maybe if Google decides to dissolve those contracts, I'd lose access all over the place.

But a federal crime it is not.; 7/13/16, 10:29 AM
damikesc said...: That's what puzzled me. Most websites are hosted by servers external to the individual website owner's personal computer, so this ruling wouldn't seem to apply. Plus, how can one publish a website for public view and prohibit select individuals from visiting or viewing what you one has made public?

I imagine a public accomodations complaint will be fun.; 7/13/16, 10:30 AM
PB said...: This is horseshit. It's the same as opening a business selling cakes to the public and then denying access to certain individuals because you don't like them. If you want it to be some sort of members-only site, then it's incumbent upon you to do the very minimal work of implementing a logon id and password capability. And I do mean very minimal work.

What is also horseshit is the legal opinions that setting up a web server in one state then opens up sites on that server to the laws of other states. Think of the internet as a highway and your browser as the car you use to travel to a store/website in another state. That is how the law should view things.; 7/13/16, 10:33 AM
Bob Ellison said...: damikesc, yes...a "common carrier" complaint against Google, Facebook, and Amazon, among others. That would be a good start to the socialist revolution.; 7/13/16, 10:37 AM
eric said...: Look, I visited the website, sure. But it was just me being careless. I know it was a stupid thing to do, but criminal? No prosecutor has ever taken such a case. And no FBI agent would ever recommend such a case for prosecution.

Ok, ok, you can call me inept. You can say I was being lazy. But I'm not a crook!; 7/13/16, 10:39 AM
Alexander said...: On a basis of history and reality, will the Feds actually prosecute such cases?

If you're a wrongthinker and your fall foul with a goodthinker, you're in trouble.; 7/13/16, 10:42 AM
Etienne said...: The trouble with Boolean logic is that there are only two values, and that confuses a lot of lawyers.; 7/13/16, 10:54 AM
jr565 said...: PB wrote:
This is horseshit. It's the same as opening a business selling cakes to the public and then denying access to certain individuals because you don't like them. If you want it to be some sort of members-only site, then it's incumbent upon you to do the very minimal work of implementing a logon id and password capability. And I do mean very minimal work.

At least the website can implement a logon ID and password.; 7/13/16, 10:59 AM
MadisonMan said...: How do you know if a website wants you to visit?

This aspect of the law will only be applied to people who are not Hillary Clinton.; 7/13/16, 11:04 AM
mockturtle said...: No opinion on this question but I can't remember any sensible decision coming out of the 9th Circuit.; 7/13/16, 11:16 AM
Clayton Hennesey said...: If nothing else, hopefully this case will throw more light on the extent to which speech itself is coming to be divided up as the commercial property of one or another of the few oligopolies now in control of transmitting it.

In response, see for example Pamela Geller's quixotic lawsuit against Facebook.

We see here that 10 years of Professor Althouse's blogging is now residing on a Google property, I'm guessing without being archived externally or at least not under her direct control. What happens if Google should decide one Tuesday that "cruel neutrality" provides a "poor user experience" and simply delete the blog?

How laughable to contemplate that Google, which dominates some 60 - 70% of search traffic in the U. S. might risk a move like that - risking being sued, and by a law professor, someone whose salary and net worth could sustain a suit against Google for months.

Such a situation would be as ridiculous to contemplate as a Secretary of State handling state secrets promiscuously, then an FBI director refusing to recommend prosecution, then an Attorney General sweeping the whole thing out the door.; 7/13/16, 11:20 AM
damikesc said...: damikesc, yes...a "common carrier" complaint against Google, Facebook, and Amazon, among others. That would be a good start to the socialist revolution.

I think it'd be a dumb idea --- but if the courts are actually going to go this route, then make the Progs who empower this nonsense live by their own rules.; 7/13/16, 11:23 AM
rhhardin said...: Althouse is too big to back up.; 7/13/16, 11:24 AM
mikee said...: And here all this time I thought that having an accessible website on the internet actually meant, prima facie as lawyers love to say, evidence that one wants visitors to the site.

The law is too complicated for me.; 7/13/16, 11:51 AM
mikee said...: Also, this case demonstrates that Facebook as a company, as well as the courts, consider all content on their site their property. That makes everyone posting stuff on their very own personal Facebook pages merely slaves creating Facebook product for the company to sell.; 7/13/16, 11:55 AM
shiloh said...: ok Althouse and her majority cons ~ do you want me to visit? When I took my self-imposed 3 yr 3 mo vacation I would peak in occasionally. Gasp! Felt compelled to post a couple times then thought ...

What difference would it make!

You want me at this blog, you need me at this blog!

You're welcome.; 7/13/16, 12:01 PM
Left Bank of the Charles said...: Althouse is right to use "if". I think they have to know more than that you disapprove but that their access is not authorized.

The commentators here who are getting deleted (which might include this one, but I don't know that), might know that Althouse disapproves of them but that is a couple of levels short of their knowing they've been told they are not authorized.

Indeed, one might argue that anyone is authorized to comment on the Althouse blog so long as they are able to prove they're not a robot, even if they are a robot.

Also, this appears to be a civil case, so it's not clear that persisting after receiving a cease and desist letter would be a crime, as opposed to just unlawful.; 7/13/16, 12:06 PM
Ignorance is Bliss said...: shiloh said...

You want me at this blog, you need me at this blog!

Did you order the code red?; 7/13/16, 12:08 PM
shiloh said...: "Did you order the code red?"

You're goddamn right I did ...; 7/13/16, 12:13 PM
Levi Starks said...: Clearly there need to be more precise terms for interaction.
Oh sure, the website may be wearing provocative clothing, may invite you in for a drink, may engage in what might be perceived as foreplay, but at any time the website reserves the right to say I'm sorry, you have to go now.; 7/13/16, 12:24 PM
Mary Beth said...: They didn't just visit the website. Facebook has a problem with the Power app, I have a problem with Facebook users that granted it permission to access their information.

Read the list of permissions an app wants. If it wants to be able to spam your friends with messages, don't use the app.; 7/13/16, 12:35 PM
Quaestor said...: The trouble with Boolean logic is that there are only two values, and that confuses a lot of lawyers.

The problem is a lot of lawyers operate on quantum logic, one of the fundamental propositions being p = q if and only if your ox is the one gored; 7/13/16, 12:47 PM
Hammond X. Gritzkofe said...: Hammond is not a lawyer, but is a Libertarian.

Hammond agrees that Power wrongly trespassed on Facebook's property, but would prefer to keep it as a Civil Matter rather than invoke Federal law
or regulation. Give the Feds an inch and (to mix a metaphor) the whole camel will soon be in the tent.

As Hammond understands it:

Facebook owns (or controls) its servers and software. Facebook invites Facebookees to come in and do stuff (create Facebook pages).

Power also has a server, and wrote software to keep centrally keep a person's "Contacts" (name & address book, etc.).

But Power also tells it's subscribers,
..if you want, give us your Facebook login:passwd and we'll go to Facebook and scarf up all your Friends to add to your Contact List.
..not only that, but while on your Facebook page we can send out new Friend Requests for you and goose your Friend count.

Facebook finds out about it, and tells Power "No dice! Our invite to Facebookees does not include them letting robo-scarfers into our servers."; 7/13/16, 12:57 PM
mockturtle said...: Good one, Quaestor at 12:47!; 7/13/16, 1:09 PM
Matt Sablan said...: That... that can't be right. A non-secure website is like hanging art on the outside of your house. It may be distasteful for people to gawk, but if you put something where people can see, they might look.; 7/13/16, 1:22 PM
Paul Snively said...: And this is why we need legislators and judges under the age of 40: so they don't draft, enact, and judge this kind of nonsense that literally makes no sense and, importantly from a legal theoretical standpoint, can't be enforced. I'm old enough to remember when people cared about avoiding trying to legislate the impossible.; 7/13/16, 1:28 PM
I Have Misplaced My Pants said...: Mary Glynn hardest hit; 7/13/16, 1:32 PM
David said...: That should create some fun.

Michael K said...
Wasn't it Jackson who said, "John Marshall has made his decision, now let him enforce it!"

Problem here is that there are plenty of people who would love to enforce this (in the right circumstance for them) and have the power to do so.; 7/13/16, 1:52 PM
Ron Winkleheimer said...: Me thinks the 9th circuit judges have a shaky understanding of the Intertubes.

It is actually possible to run a Website that is by invitation only.

https://en.wikipedia.org/wiki/Deep_web

But if you are running a standard Website that is indexed on search engines and responds to http queries then nobody who is using http to access your site is accessing your computer without permission.; 7/13/16, 2:42 PM
Nichevo said...: Even on Blogger you can have a private blog by invitation only. Just ask Troop.; 7/13/16, 3:40 PM
Joe said...: One problem with the 9th circuit's opinion is that Facebook regularly allows third parties be granted login permission. Does Facebook actually have the authority to deny a user the right to grant others login permission?

It seems that Facebook is arguing that my account and all its contents belong exclusively to it. (Yes, they tried to explicitly declare this in the past, but backed off. Isn't this just a weaselly back door?); 7/13/16, 5:32 PM
Joe said...: Another point: if Facebook users are prohibited from allowing third parties using their Facebook credentials (a very iffy proposition seeing that Facebook does sometime allow it) then aren't the users the one in violation of the terms of agreement, not the third party?; 7/13/16, 5:36 PM
Paul said...: So if I go to their website and SEE a sign that says, "Do not access my website", then do I go to jail?

How am I to know not to visit their website? Email me?

The 9th Circuit is really the 9th Circus.; 7/13/16, 6:21 PM
Tom said...: How in the hell are we supposed to know where breaking a criminal law? Where is the intent?!; 7/13/16, 6:45 PM
Sammy Finkelman said...: PB said...7/13/16, 10:33 AM

It's the same as opening a business selling cakes to the public and then denying access to certain individuals because you don't like them.

That is, as a matter of fact, allowed by law, as long as the denial is not being done on the basis of race, religion, sex, national origin or whatever else may be added to the prohibited categories.

You don't have to say you suspect someone of stealing or just that they make a mess -take things off the shelves for instance.; 7/13/16, 6:52 PM
Sammy Finkelman said...: But with stores, I don't thionk it is a criminal offense. Someone has to be told they are trespassing and ordered off the premises. And they really don't call in the police. and they may forget after some time.; 7/13/16, 6:54 PM
Sammy Finkelman said...: The only reasonable thing fro websites has to be logging in. What's available without logging in should be available. It's public.

Logging in using somebody else's name: The other person should have the right to grant permission but is responsible for anything done or said there. Theer certainly should be the right to download and show private copies.; 7/13/16, 6:57 PM
Mister Brickhouse said...: As Prof. Pauli would have said - It's not even wrong.; 7/13/16, 7:13 PM
Bonkti said...: Perhaps affirmative consent at every click would lend clarity.; 7/13/16, 8:12 PM
Freeman Hunt said...: Sounds like an Anti-Troll Law. Where would all the trolls go? A troll without a website is like a man without a country.; 7/13/16, 10:51 PM
Clayton Hennesey said...: It's the campus Safe Spaces theory applied to cyberspace - Cyber Safe Spaces, Calling someone a doo-doo head becomes prosecutable as battery upon breaking and entering.; 7/14/16, 6:09 AM
Derve Swanson said...: I Have Misplaced My Pants said...

Mary Glynn hardest hit
-------------------

Lol. Ann wouldn't dare...

She can't cherrypick which allegations she wants to make (ploopusgirl anyone?) and which comments about me she allows to stand, and which one she tells her boyfriend/husband to delete.

She's a lousy professor and she doesn't like getting called on it.
Let's see ann make the case that this is illegal to point out, on a blog that seems to enjoy tossing my name around when the ratings are low...
---------------
Freeman Hunt said...

Sounds like an Anti-Troll Law. Where would all the trolls go? A troll without a website is like a man without a country.

I think you are confusing the "stay at home to teach" homeschooled mothers with trolls who offer up something it hurts your eyes to read. Where did you take your law degree again, dear?

That's what I thought... no need to educate yourself when you can get paid for wiping someone's little ass, eh? Go girl! ann has your back, never forget ;-); 7/14/16, 7:45 AM
JHapp said...: Doesn't the google search engine visit every website on the internet on a regular basis to maintain it's search index?; 7/14/16, 8:45 AM
Bad Lieutenant said...: Ms. Glynn, Mrs. Althouse doesn't seem to have anyone's back. Possibly not even her own. She is a strange one.; 7/14/16, 10:00 PM
Lost My Cookies said...: What this says to me is that Facebook owns all of the information that I put on my page and my login credentials too, just because they own the service. Should I assume that Google, Microsoft and Yahoo own my email? Salesforce.com my customer data? If I can't give an app, person, or entity explicit permission to access my personal data stored on a service that service is useless to me.; 7/15/16, 6:36 AM