Re: Editors note incl. Dangerous Precedence Set - Federal Criminal Charges for Violation of Commercial Online ToS?

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Dave Wilson" <dave () wilson net>
Date: November 29, 2008 11:45:12 AM EST
To: dave () farber net
Subject: Re: [IP] Re: Editors note incl. Dangerous Precedence Set -  
Federal Criminal Charges for Violation of Commercial Online ToS?

Speaking solely for myself on this: US Appeals Court Judge Richard  
Posner has long argued that many critical laws, such as intellectual  
property law, are being superceded by contractual arrangements between  
service providers / manufacturers and users / consumers. This is  
unprecedented in US history, although it's been tried many times in  
the past before being struck down by the courts. For example, book  
publishers have in the past tried to "license" books, essentially  
selling the book under a contract that would prohibit its resale or  
lending. If that sounds crazy, remember that's the current model for  
software sales: You don't own the product, you purchase a license that  
carefully prescribes what you can do with the product.

The idea that I am contractually obligated to do *anything* by some  
legally nebulous mumbo-jumbo based on a click through license  
agreement should be terrifying to people. Maybe after this, people  
will wake up. In a Democratic society, laws should govern our  
behavior, not unalterable contracts forced upon us by people who  
answer to no one.

-dave

On Sat, Nov 29, 2008 at 10:14 AM, David Farber <dave () farber net> wrote:
I held this note for a while while I let my temper cool a bit.  
According to Brett the use of P2P  may be a law violation not just a  
isp s. Many sites are now doing updates using p2p in a non obvious  
fashion. Will my ISp claim I interfered with a VOIP call (voip is a  
lousy reliable channel since my ISP does not quote any reliability  
numbers) end me in jail? and just what is a P2P usage?? .


Still steaming

Dave



Begin forwarded message:

From: Brett Glass <brett () lariat net>
Date: November 27, 2008 4:08:57 PM EST
To: dave () farber net, "ip" <ip () v2 listbox com>
Subject: Re: [IP] Dangerous Precedence Set - Federal Criminal Charges  
for Violation of Commercial Online ToS?


A very dangerous legal precedence was set today.

In the case of the 13 year old who committed suicide supposedly over a
MySpace hoax, the mother involved was found guilty on three federal  
counts.
What of? Not of a serious criminal act.

She was found guilty on three criminal counts (misdemeanors), in a
federal court, of violating the Terms of Service agreement.

This is not new. In fact, the splash pages for the hotspots operated by
our ISP for retail establishments and hospitality venues have  
mentioned it
for many years. "Exceeding authorized access" to a computer network  and
causing damage to anyone or anything -- including injury or a nontrivial
financial loss -- is a per se violation of 18 USC 1030. See

http://www.law.cornell.edu/uscode/18/1030.html

for the details.

This is, in fact, a very good thing. Now that disrupting a computer  
network
can easily endanger life and limb (e.g. when someone needs to make a  
VoIP
call in an emergency), it's important that an ISP be able to prevent,  
say,
someone who is using P2P from disrupting the operation of the network,
preventing that call from going through by creating excessive jitter or
hogging bandwidth. The statute is fair in that the person can't be
charged for causing a "de minimus" loss or injury. Someone actually  
has to
be substantially harmed, and in this case of fatal online bullying that
threshold was certainly exceeded.

--Brett Glass





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