4 ms·

Indeed, and the crime is stealing (unlawfully copying) the data within. Admittedly it is an imperfect metaphor -- as all metaphors are -- but it is not "blatan

Indeed, and the crime is stealing (unlawfully copying) the data within. Admittedly it is an imperfect metaphor -- as all metaphors are -- but it is not "blatantly false." Data is not fair game for the copying just because it's in a place you can reach it with `curl` without having to pass an authorization check. That's not the law, and it's not common sense.

giantg2 5y ago
Eh, you're not depriving a person of their property like in the physical world. It would be like trespassing and reading something. Again, a failed metaphor. What would really be common sense is for people to stop trying to fit bad physical metaphors on technology concepts. They don't work and they obscure the real points. Frankly, tons of stuff is illegal on the internet. You've likely committed felonies by violating a site's terms of service. That's how the DOJ applies the CFAA. It doesn't get enforced, just like that MO reporter didn't get arrested. Should they have been? It was unauthorized access which you claim is enough under law and common sense... It's my belief that intent alone is not sufficient. Actions speak louder than words. Who cares if you say "no one is allowed to access this" and then leave public access enabled to something? It's common sense that you didn't secure it and you have no expectation of privacy. Look at traditional cell calls and radio. You're putting your information in public and others can view it. DNA you leave on trash can be collected without a warrant - and with no intent/consent on your part! The law is a mess and full of contradictions. Even when the statutes are sound they become perverted by activist or impartial judges as well as law enforcement or prosecutorial discretion. Rule of law is a joke when individuals have the power to decide not to enforce it. Also, I believe there was some case law recently that stated that publically exposed or unsecured data can be accessed without it being a crime, but depended on the details. I don't remember the jurisdiction and I can't seem to find it now either. Oh well.
- otterley 5y ago
  Property rights are about control and exclusionary rights, not about physical things like land and widgets. This is a common misconception among the public and one of the first things they teach you in your first-year property law course.
  - giantg2 5y ago
    "This is a common misconception among the public and one of the first things they teach you in your first-year property law course." Typical lawyer response - I know more than you and I'll give you an answer that looks down on you without addressing the meat of the topic. "Property rights are about control and exclusionary rights, not about physical things like land and widgets." I haven't said otherwise. This reinforces my position that these terrible metaphors draw people off topic and do not translate to virtual property the same - the whole reason trespass and computer trespass are separate crimes with separate elements. In fact, I believe that most laws around computer resources have too much influence from traditional laws because the politicians and judges who wrote them relied too heavily on concepts from the physical world due to habit and a lack of understanding of the new concepts around technology and its possibilities. The real question is whether the laws are appropriate. It's an asymmetrical power dynamic that favors the stated intent of the owner over the stated intent of the user, even ignoring the actions of the owner when they're contrary to their stated intent. Computer trespass and unauthorized access is much more complicated and lacks the protective mechanisms that physical property laws have to protect non-owners. For example, consent and intent to let others use a computer resource is terribly vague. You don't need written permission to visit a website, there aren't clearly posted boundaries with signs stating this or that resource is off limits, etc. Even ToS tend to very poorly define boundaries within a system. Without clearly defined and posted boundaries as well as a lack of explicit grants or revocation of privileges in publicly accessible cyber spaces, we have created a system that favors the undefined undermining the underlying concepts of strict construction - that laws need to be defined strictly so that they can be applied equally and so that they are knowable to the subjects. In the case of cyber laws, relying on the stated intent of the owner which was not well defined anywhere nor communicated to the user as well as ignoring the intent preceived through the actions of the owner that contradict their stated intent. What we have is a system that will allow bad laws to stand because of unequal enforcement. Accessing publically available URLs and the data returned can either lead to charges from the FBI against an unknown person, or to widespread support for a reporter. Prosecutorial and law enforcement discretion means that we can use the laws only against undesirables and leave the majority of the population unaffected even if they met the elements of the offense. If it doesn't affect you, then why fix it...

giantg2 5y ago

Eh, you're not depriving a person of their property like in the physical world. It would be like trespassing and reading something. Again, a failed metaphor. What would really be common sense is for people to stop trying to fit bad physical metaphors on technology concepts. They don't work and they obscure the real points. Frankly, tons of stuff is illegal on the internet. You've likely committed felonies by violating a site's terms of service. That's how the DOJ applies the CFAA. It doesn't get enforced, just like that MO reporter didn't get arrested. Should they have been? It was unauthorized access which you claim is enough under law and common sense... It's my belief that intent alone is not sufficient. Actions speak louder than words. Who cares if you say "no one is allowed to access this" and then leave public access enabled to something? It's common sense that you didn't secure it and you have no expectation of privacy. Look at traditional cell calls and radio. You're putting your information in public and others can view it. DNA you leave on trash can be collected without a warrant - and with no intent/consent on your part! The law is a mess and full of contradictions. Even when the statutes are sound they become perverted by activist or impartial judges as well as law enforcement or prosecutorial discretion. Rule of law is a joke when individuals have the power to decide not to enforce it. Also, I believe there was some case law recently that stated that publically exposed or unsecured data can be accessed without it being a crime, but depended on the details. I don't remember the jurisdiction and I can't seem to find it now either. Oh well.

otterley 5y ago
Property rights are about control and exclusionary rights, not about physical things like land and widgets. This is a common misconception among the public and one of the first things they teach you in your first-year property law course.
- giantg2 5y ago
  "This is a common misconception among the public and one of the first things they teach you in your first-year property law course." Typical lawyer response - I know more than you and I'll give you an answer that looks down on you without addressing the meat of the topic. "Property rights are about control and exclusionary rights, not about physical things like land and widgets." I haven't said otherwise. This reinforces my position that these terrible metaphors draw people off topic and do not translate to virtual property the same - the whole reason trespass and computer trespass are separate crimes with separate elements. In fact, I believe that most laws around computer resources have too much influence from traditional laws because the politicians and judges who wrote them relied too heavily on concepts from the physical world due to habit and a lack of understanding of the new concepts around technology and its possibilities. The real question is whether the laws are appropriate. It's an asymmetrical power dynamic that favors the stated intent of the owner over the stated intent of the user, even ignoring the actions of the owner when they're contrary to their stated intent. Computer trespass and unauthorized access is much more complicated and lacks the protective mechanisms that physical property laws have to protect non-owners. For example, consent and intent to let others use a computer resource is terribly vague. You don't need written permission to visit a website, there aren't clearly posted boundaries with signs stating this or that resource is off limits, etc. Even ToS tend to very poorly define boundaries within a system. Without clearly defined and posted boundaries as well as a lack of explicit grants or revocation of privileges in publicly accessible cyber spaces, we have created a system that favors the undefined undermining the underlying concepts of strict construction - that laws need to be defined strictly so that they can be applied equally and so that they are knowable to the subjects. In the case of cyber laws, relying on the stated intent of the owner which was not well defined anywhere nor communicated to the user as well as ignoring the intent preceived through the actions of the owner that contradict their stated intent. What we have is a system that will allow bad laws to stand because of unequal enforcement. Accessing publically available URLs and the data returned can either lead to charges from the FBI against an unknown person, or to widespread support for a reporter. Prosecutorial and law enforcement discretion means that we can use the laws only against undesirables and leave the majority of the population unaffected even if they met the elements of the offense. If it doesn't affect you, then why fix it...