6 ms·

No! If an offence is criminal it can't be magically made OK by a contract. I am not a lawyer. This is not legal advice.

wojt_eu 11y ago
Wouldn't it make it impossible under California law to have an agent that impersonate me? Have them tweet from my account, reply to emails in my name etc.
- robzyb 11y ago
  It is, of course, perfectly legal to do that with permission. The problem here is that it was done without permission. The OP is claiming that the impersonation without permission is a crime, and that it is impossible to waive the crime-ness of it through a contract.
  - OJFord 11y ago
    Parent is replying to a comment stating: > If an offence is criminal it can't be magically made OK > by a contract. I think this must be mistaken (IANAL either). Boxing, assisted suicide, and voting by proxy come to mind.
    - deleted 11y ago
      [deleted]
    - svckr 11y ago
      The quote sounds right to me. If the act of impersonating someone is indeed a criminal offense, you can not smooth that over with a contract. Voting by proxy is not impersonation, you give someone the right to act (vote in this case) in your name. Thus, no criminal offense. The other cases: Assisted suicide is a criminal offense in many countries. For example (similar, but not the same), there has been some legal struggle over "Sterbehilfe" here in Germany which garnered quite some media attention. Boxing – I might be mistaken, but perhaps "beating someone" is not a criminal offense as long as it is not against the other persons will? All these things hinge on very subtle differences in wording. For example the terms might say: "AngelList reserves the right to send mails on your behalf" which grants them the right to send mails to third parties in your name, but I'd be surprised if law would allow them to state "AngelList reserves the right to claim your identity".
      - drdaeman 11y ago
        > If the act of impersonating someone is indeed a criminal offense, you can not smooth that over with a contract. IANAL, but it's like having sex: it's perfectly okay if all participants are consenting adults, but without this important condition it's a felony. From what I understand, the important part here is consent, and only lack of one makes it a criminal offense. I.e. the act of impersonating isn't a crime (on its own) - the act of doing so without consent is. Well, to be certain, I guess one should take penal code of the jurisdiction in question, find the article and check the exact wording used.
      - ams6110 11y ago
        Yes, I think the difference would be are they representing you or impersonating you. I.e. did the other party know. I can give my voting proxy or power of attorney to someone else, but it's pretty clear to anyone paying attention that's what's going on. If the email said "This is AngelList on behalf of J. Random Employee" that would be different than sending an email that had every appearance of being from the employee. Even if this is allowed in their TOS, it's pretty underhanded if they buried something like that in boilerplate that they know nobody reads.
      - OJFord 11y ago
        > you give someone the right to act (vote in this case) in > your name. Thus, no criminal offense. Right, it would be an offence, except that you've given express permission; so it isn't. Assisted suicide is, yes. But my point is that we have separate legislation for it, implying that is required. Boxing, again, that's my point. Regarding identity specifically, what I imagine we're talking about here is an automated message much like LinkedIn's: > Hi, I'd like to add you to my network! * Do we have a problem with this too? * Or whatever it is. Point being, it says "I"; not "Mr Ford".
        rspeer 11y ago
        I definitely have a problem with that. It's an abuse of e-mail to automatically impersonate someone, especially for a purpose as banal as expanding a social network. The Gmail warning that "this message may not be from who it claims to be" never worked well, but I wish they'd make it work for cases like this. It's too bad e-mail is so unverified and insecure. A smartphone app can be prevented from making calls or sending text messages from your number: all you have to do is deny it that permission. But there's no way to prevent a website that has your name and e-mail address from sending e-mails as you.
    - throwaway049 11y ago
      Are you saying assisted suicide is illegal, but _can_ be made OK by a contract? That's not the case in England. By contrast, proxy voting is fine if you register your proxy with the local electoral office in advance.
      - OJFord 11y ago
        No, I'm wondering why would there be a separate law if it was automatically covered by not being able to consent your way out of being murdered.
        ams6110 11y ago
        Probably because it's not murder, it's suicide. Assisted suicide is generally not asking another person to kill you, it's asking another person to set up some situation so you can more easily kill yourself. And though suicide is illegal, such laws further define that assisting another person to commit suicide is also illegal.
    - huac 11y ago
      Contracts must have 'legality of object' - the 'thing' that is contracted cannot be criminal, tortious, or against the prevailing public policy. You will find that in each of your examples that there is a particular statute legalizing that activity in a particular state.
    - protomyth 11y ago
      Boxing is not illegal. Boxing is regulated under certain conditions.
  - abritishguy 11y ago
    Agreeing to the terms could be giving permission though...
    - JupiterMoon 11y ago
      That would be for a court to decide and I doubt that any of us are qualified to advise the GP (I certainly am not!).
      - morninj 11y ago
        There are lots of competent tech lawyers on HN.
- JupiterMoon 11y ago
  I have no idea. My post was more general and about principles rather than specifics. I have no knowledge of the specifics of the relevant terms of service for this company, I also don't know whether they form a binding contract in the relevant jurisdiction or what things are specifically legal to do in contracts in the relevant jurisdiction. I repeat that I am not a lawyer so if this is important to you then hire a lawyer in your local jurisdiction to advise you, don't listen to random people on the internet.
  - deleted 11y ago
    [deleted]
- bryanrasmussen 11y ago
  These are two different things: 1. Hi, my name is John, I am contacting you on behalf of wojt_eu to confirm that he has been added to the "Cool New Project" as lead DEV. 2. Hi, it's me wojt_eu, I just wanted you to confirm that I've been added to the "Cool New Project" as lead DEV. You can legally authorize someone to act on your behalf, in basically any Western Nation - although rules as to how this work will vary, but authorizing someone to impersonate you I don't believe would be made legal anywhere because impersonation is not just something one does on your behalf but also something one does to someone else. Both the person that acts on the impersonation as being real and the person being impersonated can be harmed by an impersonation, and therefore it is not adequate that the person being impersonated gives the impersonator the right to do so.
  - thaumasiotes 11y ago
    You are not describing the facts on the ground. http://semanticcompositions.typepad.com/index/2004/03/flexible_design.html http://semanticcompositions.typepad.com/index/2004/03/flexib...
    - bryanrasmussen 11y ago
      no, I was very much describing the facts on the ground, I was not describing highly abstract semantic analysis that doesn't relate to legal usages. I was also not describing linguistic usage in telephone conversation, I was describing linguistic usage in email correspondence. I don't think a correspondence would exist with a structure similar to the conversation the blog post discusses. It can certainly be that when a conversation or correspondence moves into the realm of impersonation should be determined by the court. I think in the case under discussion here it would determined to be impersonation, the question then becomes what the harm was. Looking through the statute referenced http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=528-539 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&gr... I don't think I can see a harm defined that matches what was done very well. I think the most relevant section is 530 and it does seem a stretch.
  - bostonpete 11y ago
- sqeaky 11y ago
  I bet you can hire a tax preparer in California. That is someone hired to represent you and do things on your behalf for tax purposes. That is a highly regulated financial specialist though. In principle it sounds similar. The details do matter though. Did they provide reasonable explanation of what they were doing? Did they attempt to do this in secret? Did they misrepresent anything? Are they any laws saying a person cannot sign away liability for things like this?
  - ams6110 11y ago
    They also don't sign the tax form as you. They sign it as a "preparered by" and you sign it as the taxpayer. Most tax preparers are liable for their own mistakes, but not for omitting anything you didn't tell them.
donatj 11y ago
There are many things that would be illegal without a contract that are legal with one. That's kind of the point.
- DrJokepu 11y ago
  Illegal is not the same thing as criminal, the latter being a very special subset of the former.
deleted 11y ago
[deleted]
oldmanjay 11y ago
What is it about not being a lawyer (psychiatrist, economist, whatever) that makes people feel their contributions, though unqualified and generally incorrect, are still valuable? Is there a magical state of not-being that I've never picked up?
- logfromblammo 11y ago
  Generally, it's because we feel that layman opinions on how the law work should affect how it actually works in a democratic society. For instance, civil forfeiture, wherein property can be taken from a person who has not been proven guilty of a crime in a fair trial, is widely rejected by the public, even when the opinion poll uses the most biased questions possible. (i.e. Should drug dealers be allowed to keep the profits from their crimes if they escape conviction and punishment on a technicality?) Also, a jury verdict is little more than an aggregated bunch of layman opinions. The opinion of the general public is that software should not have bugs in it. Also, it should be gratis and always keep up with the latest GUI and HID fashion trends. As a software professional, I often do additional work to meet those public expectations, even if it has no technical merit. That's because the opinion of the customer matters, when they are employing the experts to work on their behalf.
- JupiterMoon 11y ago
  I include that I am not a lawyer partly to provide a warning that I am probably wrong and that what I am saying is not particularly valuable. I welcome someone that is an expert jumping in and correcting me...
lisper 11y ago
Of course it can. Lack of consent is a key element in many crimes. Rape, for example.
- pavel_lishin 11y ago
  But in your example, the act in question would be sex - which is not itself a criminal act.
  - lisper 11y ago
    Impersonating someone isn't a criminal act either. It is impersonating someone without consent that is the criminal act. Read the statute: "...any person who knowingly AND WITHOUT CONSENT credibly impersonates another actual person..." (Emphasis added.)
    - ktRolster 11y ago
      Elvis impersonators.....
      - lisper 11y ago
        Another element of the criminal statute is that the impersonation has to be "credible".
- TheLogothete 11y ago
  This is not an appropriate analogy. You are reversing the situation. Terms and conditions and even contracts are often inadmissible. Just because you signed something, doesn't mean it's valid. Being handcuffed to a contract happens only in the movies, I am not a lawyer.
  - lisper 11y ago
    One can argue over whether Angellist's ToS constituted valid consent. But the original blanket claim that an action "can't be magically made OK by a contract" is just flat-out false. It can.
tamana 11y ago
Pro-tip: don't make exclamations when you don't know if what you are saying is true. The entire point of a contract is to get permission to do something that otherwise is not allowed.
- toyg 11y ago
  No, the point of a contract is to agree on mutual conduct. The conduct itself is still subject to laws, unless the law itself explicitly allows to be overridden with contracts. We can agree in a contract to sell you my daughter's virginity, but that does not mean you can actually buy it.

Wouldn't it make it impossible under California law to have an agent that impersonate me? Have them tweet from my account, reply to emails in my name etc.

robzyb 11y ago
It is, of course, perfectly legal to do that with permission. The problem here is that it was done without permission. The OP is claiming that the impersonation without permission is a crime, and that it is impossible to waive the crime-ness of it through a contract.
- OJFord 11y ago
  Parent is replying to a comment stating: > If an offence is criminal it can't be magically made OK > by a contract. I think this must be mistaken (IANAL either). Boxing, assisted suicide, and voting by proxy come to mind.
  - deleted 11y ago
    [deleted]
  - svckr 11y ago
    The quote sounds right to me. If the act of impersonating someone is indeed a criminal offense, you can not smooth that over with a contract. Voting by proxy is not impersonation, you give someone the right to act (vote in this case) in your name. Thus, no criminal offense. The other cases: Assisted suicide is a criminal offense in many countries. For example (similar, but not the same), there has been some legal struggle over "Sterbehilfe" here in Germany which garnered quite some media attention. Boxing – I might be mistaken, but perhaps "beating someone" is not a criminal offense as long as it is not against the other persons will? All these things hinge on very subtle differences in wording. For example the terms might say: "AngelList reserves the right to send mails on your behalf" which grants them the right to send mails to third parties in your name, but I'd be surprised if law would allow them to state "AngelList reserves the right to claim your identity".
    - drdaeman 11y ago
      > If the act of impersonating someone is indeed a criminal offense, you can not smooth that over with a contract. IANAL, but it's like having sex: it's perfectly okay if all participants are consenting adults, but without this important condition it's a felony. From what I understand, the important part here is consent, and only lack of one makes it a criminal offense. I.e. the act of impersonating isn't a crime (on its own) - the act of doing so without consent is. Well, to be certain, I guess one should take penal code of the jurisdiction in question, find the article and check the exact wording used.
    - ams6110 11y ago
      Yes, I think the difference would be are they representing you or impersonating you. I.e. did the other party know. I can give my voting proxy or power of attorney to someone else, but it's pretty clear to anyone paying attention that's what's going on. If the email said "This is AngelList on behalf of J. Random Employee" that would be different than sending an email that had every appearance of being from the employee. Even if this is allowed in their TOS, it's pretty underhanded if they buried something like that in boilerplate that they know nobody reads.
    - OJFord 11y ago
      > you give someone the right to act (vote in this case) in > your name. Thus, no criminal offense. Right, it would be an offence, except that you've given express permission; so it isn't. Assisted suicide is, yes. But my point is that we have separate legislation for it, implying that is required. Boxing, again, that's my point. Regarding identity specifically, what I imagine we're talking about here is an automated message much like LinkedIn's: > Hi, I'd like to add you to my network! * Do we have a problem with this too? * Or whatever it is. Point being, it says "I"; not "Mr Ford".
      - rspeer 11y ago
        I definitely have a problem with that. It's an abuse of e-mail to automatically impersonate someone, especially for a purpose as banal as expanding a social network. The Gmail warning that "this message may not be from who it claims to be" never worked well, but I wish they'd make it work for cases like this. It's too bad e-mail is so unverified and insecure. A smartphone app can be prevented from making calls or sending text messages from your number: all you have to do is deny it that permission. But there's no way to prevent a website that has your name and e-mail address from sending e-mails as you.
  - throwaway049 11y ago
    Are you saying assisted suicide is illegal, but _can_ be made OK by a contract? That's not the case in England. By contrast, proxy voting is fine if you register your proxy with the local electoral office in advance.
    - OJFord 11y ago
      No, I'm wondering why would there be a separate law if it was automatically covered by not being able to consent your way out of being murdered.
      - ams6110 11y ago
        Probably because it's not murder, it's suicide. Assisted suicide is generally not asking another person to kill you, it's asking another person to set up some situation so you can more easily kill yourself. And though suicide is illegal, such laws further define that assisting another person to commit suicide is also illegal.
  - huac 11y ago
    Contracts must have 'legality of object' - the 'thing' that is contracted cannot be criminal, tortious, or against the prevailing public policy. You will find that in each of your examples that there is a particular statute legalizing that activity in a particular state.
  - protomyth 11y ago
    Boxing is not illegal. Boxing is regulated under certain conditions.
- abritishguy 11y ago
  Agreeing to the terms could be giving permission though...
  - JupiterMoon 11y ago
    That would be for a court to decide and I doubt that any of us are qualified to advise the GP (I certainly am not!).
    - morninj 11y ago
      There are lots of competent tech lawyers on HN.
JupiterMoon 11y ago
I have no idea. My post was more general and about principles rather than specifics. I have no knowledge of the specifics of the relevant terms of service for this company, I also don't know whether they form a binding contract in the relevant jurisdiction or what things are specifically legal to do in contracts in the relevant jurisdiction. I repeat that I am not a lawyer so if this is important to you then hire a lawyer in your local jurisdiction to advise you, don't listen to random people on the internet.
- deleted 11y ago
  [deleted]
bryanrasmussen 11y ago
These are two different things: 1. Hi, my name is John, I am contacting you on behalf of wojt_eu to confirm that he has been added to the "Cool New Project" as lead DEV. 2. Hi, it's me wojt_eu, I just wanted you to confirm that I've been added to the "Cool New Project" as lead DEV. You can legally authorize someone to act on your behalf, in basically any Western Nation - although rules as to how this work will vary, but authorizing someone to impersonate you I don't believe would be made legal anywhere because impersonation is not just something one does on your behalf but also something one does to someone else. Both the person that acts on the impersonation as being real and the person being impersonated can be harmed by an impersonation, and therefore it is not adequate that the person being impersonated gives the impersonator the right to do so.
- thaumasiotes 11y ago
  You are not describing the facts on the ground. http://semanticcompositions.typepad.com/index/2004/03/flexible_design.html http://semanticcompositions.typepad.com/index/2004/03/flexib...
  - bryanrasmussen 11y ago
    no, I was very much describing the facts on the ground, I was not describing highly abstract semantic analysis that doesn't relate to legal usages. I was also not describing linguistic usage in telephone conversation, I was describing linguistic usage in email correspondence. I don't think a correspondence would exist with a structure similar to the conversation the blog post discusses. It can certainly be that when a conversation or correspondence moves into the realm of impersonation should be determined by the court. I think in the case under discussion here it would determined to be impersonation, the question then becomes what the harm was. Looking through the statute referenced http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=528-539 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&gr... I don't think I can see a harm defined that matches what was done very well. I think the most relevant section is 530 and it does seem a stretch.
- bostonpete 11y ago
sqeaky 11y ago
I bet you can hire a tax preparer in California. That is someone hired to represent you and do things on your behalf for tax purposes. That is a highly regulated financial specialist though. In principle it sounds similar. The details do matter though. Did they provide reasonable explanation of what they were doing? Did they attempt to do this in secret? Did they misrepresent anything? Are they any laws saying a person cannot sign away liability for things like this?
- ams6110 11y ago
  They also don't sign the tax form as you. They sign it as a "preparered by" and you sign it as the taxpayer. Most tax preparers are liable for their own mistakes, but not for omitting anything you didn't tell them.

donatj 11y ago

There are many things that would be illegal without a contract that are legal with one. That's kind of the point.

DrJokepu 11y ago
Illegal is not the same thing as criminal, the latter being a very special subset of the former.

deleted 11y ago

[deleted]

oldmanjay 11y ago

What is it about not being a lawyer (psychiatrist, economist, whatever) that makes people feel their contributions, though unqualified and generally incorrect, are still valuable? Is there a magical state of not-being that I've never picked up?

logfromblammo 11y ago
Generally, it's because we feel that layman opinions on how the law work should affect how it actually works in a democratic society. For instance, civil forfeiture, wherein property can be taken from a person who has not been proven guilty of a crime in a fair trial, is widely rejected by the public, even when the opinion poll uses the most biased questions possible. (i.e. Should drug dealers be allowed to keep the profits from their crimes if they escape conviction and punishment on a technicality?) Also, a jury verdict is little more than an aggregated bunch of layman opinions. The opinion of the general public is that software should not have bugs in it. Also, it should be gratis and always keep up with the latest GUI and HID fashion trends. As a software professional, I often do additional work to meet those public expectations, even if it has no technical merit. That's because the opinion of the customer matters, when they are employing the experts to work on their behalf.
JupiterMoon 11y ago
I include that I am not a lawyer partly to provide a warning that I am probably wrong and that what I am saying is not particularly valuable. I welcome someone that is an expert jumping in and correcting me...

lisper 11y ago

Of course it can. Lack of consent is a key element in many crimes. Rape, for example.

pavel_lishin 11y ago
But in your example, the act in question would be sex - which is not itself a criminal act.
- lisper 11y ago
  Impersonating someone isn't a criminal act either. It is impersonating someone without consent that is the criminal act. Read the statute: "...any person who knowingly AND WITHOUT CONSENT credibly impersonates another actual person..." (Emphasis added.)
  - ktRolster 11y ago
    Elvis impersonators.....
    - lisper 11y ago
      Another element of the criminal statute is that the impersonation has to be "credible".
TheLogothete 11y ago
This is not an appropriate analogy. You are reversing the situation. Terms and conditions and even contracts are often inadmissible. Just because you signed something, doesn't mean it's valid. Being handcuffed to a contract happens only in the movies, I am not a lawyer.
- lisper 11y ago
  One can argue over whether Angellist's ToS constituted valid consent. But the original blanket claim that an action "can't be magically made OK by a contract" is just flat-out false. It can.

tamana 11y ago

Pro-tip: don't make exclamations when you don't know if what you are saying is true. The entire point of a contract is to get permission to do something that otherwise is not allowed.

toyg 11y ago
No, the point of a contract is to agree on mutual conduct. The conduct itself is still subject to laws, unless the law itself explicitly allows to be overridden with contracts. We can agree in a contract to sell you my daughter's virginity, but that does not mean you can actually buy it.