Court: Violating T.O.S Is Not a Crime, But Bypassing Technical Barriers Might Be

http://www.eff.org/deeplinks/2010/07/court-violating-terms-service-not-crime-bypassing

by jaxc • 16 years ago

35 18 16 years ago

eff.org

username3• 16 years ago

Is violating TOS unethical? immoral? considered lying to something you agreed to?

jpr• 16 years ago

Only if the TOS isn't unethical, immoral or lying.

TGJ2• 16 years ago

If you knowingly agree to a TOS it does not matter whether it's unethical or not. When you sign you agree to the ethics contained. You are supposed to be reading the TOS to see whether you agree or not and once you sign you are being unethical if you break the TOS in any other way not specifically allowed in the TOS.

wjy• 16 years ago

I think it's more like breach of contract. It's not necessarily unethical, but if you violate the terms, they no longer are bound to provide the service.

EDIT: Although it's unclear whether a contract was really entered into. Real contracts have signatures to indicate both parties know and agree to what's contained. That's often not the case in web services.

flogic2• 16 years ago

I think EULA's are considered signed to some degree. I don't know how or if that reasoning extends to online TOS. I wouldn't be surprised to learn the courts are fairly liberal in what they consider a contract but don't give all contracts the same strength.

flogic2• 16 years ago

The inherent power imbalance weakens the TOS's ethical standing. Facebook has lawyers. I'm not a lawyer nor can I hire one for every agreement. Which means, most people interpret the TOS to mean "I agree to no be a dick." Also any agreement which is allowed to change without notice is inherently unethical.

tptacek• 16 years ago

I'm unclear on how people rationalize blowing past technical TOS enforcement measures on a web app. Where, exactly, do you propose drawing the line? Because I think I speak for everyone in the room that makes a living doing application pentesting: there are very, very few technical countermeasures you will come up with that a consulting-week or two won't blow past.

Natsu• 16 years ago

> Where, exactly, do you propose drawing the line?

From TFA: "We welcome the court's rejection of terms of service violations as triggers for criminal liability, but will continue to work to demonstrate to courts that not all technological measures are created equal. If the measure seeks to control access to or use of data, then evasion of it is almost certainly criminal. But if the restriction merely seeks to impose owner preferences or terms of service on otherwise authorized users, bypassing it should not be a crime."

TheAmazingIdiot2• 16 years ago

What I fail to understand is how a website knows if you have "agreed" to the TOS. I mean, a contract is physically signed, sometimes with a notary. FAFSA is "signed" by a multiple step process including a SSN, DOB, receiving mail including a pin#, and entering all of it with "agree" in box to assert information is true.

Where, and how can a website claim that an "agree" button is legally enough? Or perhaps, the TOS is just nonexistent(ala 404). Or, what are these "bypassing technical barriers"? Does that count reading the URL and changing it? Greasemonkey? Filtering/data modifying router? Post injection?

This suggesting is creating more confusion than it solves.

wmf• 16 years ago

That's not a problem, since almost all sites say that mere usage of the site implies agreement with the TOS. I suppose this is akin to a "no shirt, no shoes, no service" sign; it doesn't matter whether you have read or agreed it — the sign is posted.

TheAmazingIdiot2• 16 years ago

Suppose you say that's true. Ok.

Under what "law" can you even load the site to begin with? That's right, they accepted a connection. It's akin to knocking on someones door, and they let you in. The website could always pop back "connection denied", 403, or just not answering at all.

At most it's a gentlemens agreement, or in the class of "windshields not our responsibility for our uncovered load".

Aside that, we know certain public AP's modify content to add theirs instead (panera bread advert munges). Aside ssl'ing everything, how can they even be sure we agreed to the same TOS, let alone agree at all?

Court: Violating T.O.S Is Not a Crime, But Bypassing Technical Barriers Might Be

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