8 ms·

IANAL, but surely violating Terms of Use is essentially a breach of contract? Making breach of contract a crime would be very foolish indeed.

bad_user 10y ago
It's true what they say. The justice system are defending our rights until we talk about digital media, software and the Internet, at which point they have a complete blind spot.
joncrocks 10y ago
Yes and no. The argument that it is a crime comes down to arguments around what constitutes 'unauthorised access'. As 'unauthorised access' to a computer system is a crime, if you make your definition of 'authorised' "access subject to our terms of use" : Huzzah! Violating your terms of use is now a crime! This all comes back to laws written in wooly "the courts will work it out" language.
- 08-15 10y ago
  I wonder if placing a cookie on my computer without prior written consent constitutes "unauthorized access". Class action anyone?
  - Sean1708 10y ago
    In Britain it's illegal for a website to store a cookie without informing you, so I have a feeling someone may have already tried this.
    - AstralStorm 10y ago
      Likewise in EU.
    - Silhouette 10y ago
      No, it isn't. That's not what the infamous "cookie law" says, nor how it's been interpreted in practice by official regulators across the EU.
      - Sean1708 10y ago
        What does it actually say?
        Silhouette 10y ago
        The details are probably too complicated for an HN comment, but one point that sometimes gets missed is that you normally don't have the same disclosure/consent obligations for cookies that are essential to the normal operation of the site like login tokens or tracking what's in a shopping basket.
  - roywiggins 10y ago
    It's your own browser that interprets the header, saves the cookie, and passes it back to sites you visit. Passing a "here's a cookie" header to your machine doesn't, on its own, do anything. Your browser has to actively parse and store it.
    - cgriswald 10y ago
      By the same token, my sending an HTTP request to a server doesn't, on its own, do anything. Their server has to actively parse the request and send data.
nihonde 10y ago
Even contract formation is dubious, especially in cases of browsewraps.
- joatmon-snoo 10y ago
  Also, consideration.
elmigranto 10y ago
> surely violating Terms of Use is essentially a breach of contract Is it though? Not a lawyer and my layman's intuition makes it hard to see a connection between ToS and contract. Like, if I type `something.com` in my browser by accident and their ToS is "you owe us $400 for each TCP packet, kindly do provide goverment issued ID". So I have couple of questions: - How is that different from ToS on Facebook? - How marking a checkbox creates a contract between a person and entity owning a site, same way as my signature or providing personal info, address and money to Amazon in exchange for goods? - And who that person would even be in FB case (anyone can put my name into a website from a public library computer)?
- chopin 10y ago
  You might also turn the argument the other way around: I type 'something.com' and you owe me $400 for every IP packet you send. That's an equally valid (or invalid) ToS either.
- civiscolumbusum 10y ago
  your argument is valid but your tone is missing the point PP made. To reword what he said "there is no way this is criminal law, this needs to be argued as perhaps contract law with 'breach of contract' as the upper limit if it rises to that level" you proceeded to argue the case the way he said it should be argued, but by quoting PP and challenging, you seem to be arguing with him, when in fact you are agreeing with him. if you edit your comment, I could even delete mine :)
phkahler 10y ago
I'll accept your argument as an upper bound on the issue. I don't agree fully with "breach of contract" in such cases, but it's less unreasonable than making it a criminal offense.
- cyborgx7 10y ago
  That's a great perspective. Breach of contract would be the upper bound. I don't think ToS should be able to be enforced either because it is unreasonable in today's society to assume checking that box in a sign-up process is actually giving informed consent to the terms for the wast majority of people. But even if it was, worst case it's a breach of contract.
  - maxerickson 10y ago
    I don't think ToS should be able to be enforced either So how to deal with abusive users then? Hand wave and say it is okay to block them for certain actions that are not terms of service? And of course arbitrary terms of service already can't be enforced.
    - deleted 10y ago
      [deleted]
    - unsaltedmd5 10y ago
      If you mean "abusive" as in "violates the terms of service," then revoking access to the service is the appropriate response. If you mean "abusive" as in hate crime, bullying, stalking and so forth, there are already specific laws covering those things.
      - SCHiM 10y ago
        Exactly, that's also the most reasonable interpretation of the designation too. 'Terms of Service' literally -> the terms you need to agree with for us to provide you the service. No agreement or no adherence -> no service.

bad_user 10y ago

It's true what they say. The justice system are defending our rights until we talk about digital media, software and the Internet, at which point they have a complete blind spot.

joncrocks 10y ago

Yes and no. The argument that it is a crime comes down to arguments around what constitutes 'unauthorised access'. As 'unauthorised access' to a computer system is a crime, if you make your definition of 'authorised' "access subject to our terms of use" : Huzzah! Violating your terms of use is now a crime! This all comes back to laws written in wooly "the courts will work it out" language.

08-15 10y ago
I wonder if placing a cookie on my computer without prior written consent constitutes "unauthorized access". Class action anyone?
- Sean1708 10y ago
  In Britain it's illegal for a website to store a cookie without informing you, so I have a feeling someone may have already tried this.
  - AstralStorm 10y ago
    Likewise in EU.
  - Silhouette 10y ago
    No, it isn't. That's not what the infamous "cookie law" says, nor how it's been interpreted in practice by official regulators across the EU.
    - Sean1708 10y ago
      What does it actually say?
      - Silhouette 10y ago
        The details are probably too complicated for an HN comment, but one point that sometimes gets missed is that you normally don't have the same disclosure/consent obligations for cookies that are essential to the normal operation of the site like login tokens or tracking what's in a shopping basket.
- roywiggins 10y ago
  It's your own browser that interprets the header, saves the cookie, and passes it back to sites you visit. Passing a "here's a cookie" header to your machine doesn't, on its own, do anything. Your browser has to actively parse and store it.
  - cgriswald 10y ago
    By the same token, my sending an HTTP request to a server doesn't, on its own, do anything. Their server has to actively parse the request and send data.

nihonde 10y ago

Even contract formation is dubious, especially in cases of browsewraps.

joatmon-snoo 10y ago
Also, consideration.

elmigranto 10y ago

> surely violating Terms of Use is essentially a breach of contract Is it though? Not a lawyer and my layman's intuition makes it hard to see a connection between ToS and contract. Like, if I type `something.com` in my browser by accident and their ToS is "you owe us $400 for each TCP packet, kindly do provide goverment issued ID". So I have couple of questions: - How is that different from ToS on Facebook? - How marking a checkbox creates a contract between a person and entity owning a site, same way as my signature or providing personal info, address and money to Amazon in exchange for goods? - And who that person would even be in FB case (anyone can put my name into a website from a public library computer)?

chopin 10y ago
You might also turn the argument the other way around: I type 'something.com' and you owe me $400 for every IP packet you send. That's an equally valid (or invalid) ToS either.
civiscolumbusum 10y ago
your argument is valid but your tone is missing the point PP made. To reword what he said "there is no way this is criminal law, this needs to be argued as perhaps contract law with 'breach of contract' as the upper limit if it rises to that level" you proceeded to argue the case the way he said it should be argued, but by quoting PP and challenging, you seem to be arguing with him, when in fact you are agreeing with him. if you edit your comment, I could even delete mine :)

phkahler 10y ago

I'll accept your argument as an upper bound on the issue. I don't agree fully with "breach of contract" in such cases, but it's less unreasonable than making it a criminal offense.

cyborgx7 10y ago
That's a great perspective. Breach of contract would be the upper bound. I don't think ToS should be able to be enforced either because it is unreasonable in today's society to assume checking that box in a sign-up process is actually giving informed consent to the terms for the wast majority of people. But even if it was, worst case it's a breach of contract.
- maxerickson 10y ago
  I don't think ToS should be able to be enforced either So how to deal with abusive users then? Hand wave and say it is okay to block them for certain actions that are not terms of service? And of course arbitrary terms of service already can't be enforced.
  - deleted 10y ago
    [deleted]
  - unsaltedmd5 10y ago
    If you mean "abusive" as in "violates the terms of service," then revoking access to the service is the appropriate response. If you mean "abusive" as in hate crime, bullying, stalking and so forth, there are already specific laws covering those things.
    - SCHiM 10y ago
      Exactly, that's also the most reasonable interpretation of the designation too. 'Terms of Service' literally -> the terms you need to agree with for us to provide you the service. No agreement or no adherence -> no service.