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Nothing to do with contract law -- the CFAA makes unauthorized access a felony, and 'unauthorized access' has been taken to mean 'violations of the terms of ser

Nothing to do with contract law -- the CFAA makes unauthorized access a felony, and 'unauthorized access' has been taken to mean 'violations of the terms of service'. If the court rules to enforce the NSL, fine, but there's now a new precedent that de-claws the CFAA; a solid win. Either way it will be a fun appeals process.

SwellJoe 11y ago
What do you believe "terms of service" is, if not a contract between a service provider and their customer? And, regardless, even if terms of service falls under something entirely different from contract law, you cannot apply the law to law enforcement in the same way it applies to you or I. Police openly carry firearms in places where it is illegal for others to do so (and occasionally shoot and kill people), courts regularly order activity that is ordinarily illegal (or even unconstitutional without the order from the court), etc. Police search people, homes, and autos; not legal for you or me, but with the proper procedures, it is legal for police. You're trying to apply law in a way that is nonsensical. It is not that law enforcement is above the law, but that the courts have said that the NSL is not violating the law when law enforcement officers do it. Again, I don't like that NSL is a thing, and I really don't like that courts have upheld them as constitutional. But, that is not the same as saying you can "hack" the legal system to make an otherwise lawful order from law enforcement into a non-lawful order and that they or the courts would have any concern about that hack. "If the court rules to enforce the NSL, fine, but there's now a new precedent that de-claws the CFAA; a solid win." So, if the court rules that law enforcement can enforce an NSL, regardless of the CFAA, you consider it a solid win? For whom? All it does is further cement law enforcement's ability to issue administrative NSLs. Again, you're somehow conflating the law as we must follow it and the law as law enforcement must follow it, in a situation where courts have already said they have this authority. There is nothing we can put in our terms of service that magically makes law enforcement subject to it, in pursuit of duty as a law enforcement officer. Police can lie, can detain people, can stick them in jail, etc. A "No Trespassing" sign will not stop an officer in pursuit or with a warrant. CFAA will not be de-clawed by this, and no one would even try to take such a case to court.
- awinter-py 11y ago
  No, courts don't order people to commit felonies. Courts order people to do things they are ordinarily not required to do (pay money, stop selling a product, stop following somebody) but don't order people to commit acts normally prohibited. (The exception is that a court can order law enforcement to incarcerate or kill a convicted felon; though we call it a ruling rather than a court order. That's not what we're talking about here). Re: 'what is terms of service' -- by reading this paragraph you are hereby bound to mail me one fresh batch of cupcakes on the first monday of every month. Have you entered into a contract? My take is that you haven't because I haven't paid you (consideration) and you didn't sign or click agree (intent to contract, acceptance).
  - SwellJoe 11y ago
    OK, then, sounds like you've got it figured out. Give it a shot. Let us know how it turns out.

SwellJoe 11y ago

What do you believe "terms of service" is, if not a contract between a service provider and their customer? And, regardless, even if terms of service falls under something entirely different from contract law, you cannot apply the law to law enforcement in the same way it applies to you or I. Police openly carry firearms in places where it is illegal for others to do so (and occasionally shoot and kill people), courts regularly order activity that is ordinarily illegal (or even unconstitutional without the order from the court), etc. Police search people, homes, and autos; not legal for you or me, but with the proper procedures, it is legal for police. You're trying to apply law in a way that is nonsensical. It is not that law enforcement is above the law, but that the courts have said that the NSL is not violating the law when law enforcement officers do it. Again, I don't like that NSL is a thing, and I really don't like that courts have upheld them as constitutional. But, that is not the same as saying you can "hack" the legal system to make an otherwise lawful order from law enforcement into a non-lawful order and that they or the courts would have any concern about that hack. "If the court rules to enforce the NSL, fine, but there's now a new precedent that de-claws the CFAA; a solid win." So, if the court rules that law enforcement can enforce an NSL, regardless of the CFAA, you consider it a solid win? For whom? All it does is further cement law enforcement's ability to issue administrative NSLs. Again, you're somehow conflating the law as we must follow it and the law as law enforcement must follow it, in a situation where courts have already said they have this authority. There is nothing we can put in our terms of service that magically makes law enforcement subject to it, in pursuit of duty as a law enforcement officer. Police can lie, can detain people, can stick them in jail, etc. A "No Trespassing" sign will not stop an officer in pursuit or with a warrant. CFAA will not be de-clawed by this, and no one would even try to take such a case to court.

awinter-py 11y ago
No, courts don't order people to commit felonies. Courts order people to do things they are ordinarily not required to do (pay money, stop selling a product, stop following somebody) but don't order people to commit acts normally prohibited. (The exception is that a court can order law enforcement to incarcerate or kill a convicted felon; though we call it a ruling rather than a court order. That's not what we're talking about here). Re: 'what is terms of service' -- by reading this paragraph you are hereby bound to mail me one fresh batch of cupcakes on the first monday of every month. Have you entered into a contract? My take is that you haven't because I haven't paid you (consideration) and you didn't sign or click agree (intent to contract, acceptance).
- SwellJoe 11y ago
  OK, then, sounds like you've got it figured out. Give it a shot. Let us know how it turns out.