5 ms·

No, merely violating a ToS, by itself, is not criminal. Lori Drew isn't binding on the whole country, but it is precedent.

tptacek 14y ago
You don't even need Lori Drew to arrive at this conclusion. The CFAA doesn't create strict liability crimes. You have to know you're violating the ToS, and, more than that, you have to benefit (or materially harm someone).
- nitrogen 14y ago
  ...you have to benefit (or materially harm someone). Are benefit and harm legally defined terms in this instance, or can a clever prosecutor convince a jury of the criminal equivalent of the idea that making a phone with rounded rectangles is worth $1B?
  - tptacek 14y ago
    Yes, they are defined. Moreover, no part of the indictment relies on silly things like the billion dollar valuation of rounded rectangles.
- Karunamon 14y ago
  "Materially harm" is such a broad term (it's been used to escape one-penny raises in phone bills) that, in the context of CFAA, it might as well be strict liability. Depending on how big of a dick legal is feeling like on a given day, they could make the argument that having the sysadmin dig up logs was materially harming.
  - tptacek 14y ago
    Harm has nothing to do with strict liability.
    - Karunamon 14y ago
      Please read my post again. (Why do I find myself saying this to you in almost every interaction? Do I just fail at communicating?) The point was that the bar for "material harm" is so low that an infant couldn't trip over it. So much that it's barely even worth consideration. Basically, if you violate a ToS, the company on the other side could make it a federal case if they choose to. From the company's standpoint, there's no reason not to, unless they've already committed their lawyers elsewhere. So it might as well be strict liability. If they choose to pursue you, you're in for a bad time. Note that a prosecutor still has to choose to come after you, even for strict liability offenses.
      - tptacek 14y ago
        You're not failing at communicating so much as failing at understanding what "strict liability" is about. Strict liability pertains to intent, not to the magnitude of the offense. Statutory rape is an example of a strict liability crime, because you can be convicted of it without even knowing you committed it (at the time).
        Karunamon 14y ago
        I understand that much - holding onto underage porn is a strict liability crime for example What I'm getting at here is that, the "harm" thing is not a good bar. The only difference between breaking a ToS in this condition and breaking a strict liability law is that it's a corporation instead of a prosecutor initiating the case. *ed Dropped "unwittingly", since you have to have been proven to know you're breaking the ToS.. still a broken law..
        tptacek 14y ago
        I don't understand what this comment is trying to say. The words following "the only difference" are not in fact the only difference between breaking a term of service and committing a crime under strict liability. In fact, the opposite is more true. You do not, for instance, simply need to know you're violating a term of service; you have to be doing so in bad faith, with intent to defraud. I think you need to read the CFAA --- carefully, because clauses that occur early in the statute are refined and clarified later in the statute --- before wading into technical discussions about it. It's not a particularly difficult law to understand.

tptacek 14y ago

You don't even need Lori Drew to arrive at this conclusion. The CFAA doesn't create strict liability crimes. You have to know you're violating the ToS, and, more than that, you have to benefit (or materially harm someone).

nitrogen 14y ago
...you have to benefit (or materially harm someone). Are benefit and harm legally defined terms in this instance, or can a clever prosecutor convince a jury of the criminal equivalent of the idea that making a phone with rounded rectangles is worth $1B?
- tptacek 14y ago
  Yes, they are defined. Moreover, no part of the indictment relies on silly things like the billion dollar valuation of rounded rectangles.
Karunamon 14y ago
"Materially harm" is such a broad term (it's been used to escape one-penny raises in phone bills) that, in the context of CFAA, it might as well be strict liability. Depending on how big of a dick legal is feeling like on a given day, they could make the argument that having the sysadmin dig up logs was materially harming.
- tptacek 14y ago
  Harm has nothing to do with strict liability.
  - Karunamon 14y ago
    Please read my post again. (Why do I find myself saying this to you in almost every interaction? Do I just fail at communicating?) The point was that the bar for "material harm" is so low that an infant couldn't trip over it. So much that it's barely even worth consideration. Basically, if you violate a ToS, the company on the other side could make it a federal case if they choose to. From the company's standpoint, there's no reason not to, unless they've already committed their lawyers elsewhere. So it might as well be strict liability. If they choose to pursue you, you're in for a bad time. Note that a prosecutor still has to choose to come after you, even for strict liability offenses.
    - tptacek 14y ago
      You're not failing at communicating so much as failing at understanding what "strict liability" is about. Strict liability pertains to intent, not to the magnitude of the offense. Statutory rape is an example of a strict liability crime, because you can be convicted of it without even knowing you committed it (at the time).
      - Karunamon 14y ago
        I understand that much - holding onto underage porn is a strict liability crime for example What I'm getting at here is that, the "harm" thing is not a good bar. The only difference between breaking a ToS in this condition and breaking a strict liability law is that it's a corporation instead of a prosecutor initiating the case. *ed Dropped "unwittingly", since you have to have been proven to know you're breaking the ToS.. still a broken law..
        tptacek 14y ago
        I don't understand what this comment is trying to say. The words following "the only difference" are not in fact the only difference between breaking a term of service and committing a crime under strict liability. In fact, the opposite is more true. You do not, for instance, simply need to know you're violating a term of service; you have to be doing so in bad faith, with intent to defraud. I think you need to read the CFAA --- carefully, because clauses that occur early in the statute are refined and clarified later in the statute --- before wading into technical discussions about it. It's not a particularly difficult law to understand.