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Violate TOS? That’s a jail sentence

November 15, 2011

2. Law, 4. Arrest

Violate TOS?  That’s a jail sentence

This is not a political blog.  We discuss criminal law, but sometimes it’s a thin line between the two.  Check this out.  Nothing short of asinine.  The US DOJ is cloaking its politics.  It claims that the issue is Identity Theft.  It is to laugh.

Assume that you sign up for Match dot com.  The site is devoted to pairing up folks via the Internet that otherwise can’t or won’t find a date in the traditional way.  That’s fine in concept.  We all know that there’s plenty of sites out there devoted to the process.  Lots of money to be made through membership fees.  Lots of “secret algorithms” used to match the details of your life to another person.  Lots of opportunity to meet someone in something a half-step or so above an old-fashioned blind date.  So you sign up and pay your fee.  Your weight?  115 lbs. if you’re female, 155 lbs if you’re male.  It’s more of a goal than reality.  She’s actually 127 lbs; he tips at a buck seventy-two.

Ut oh.  From the article:

“Businesses should have confidence that they can allow customers to access certain information on the business’s servers, such as information about their own orders and customer information, but that customers who intentionally exceed those limitations and obtain access to the business’s proprietary information and the information of other customers can be prosecuted,” Downing’s prepared remarks say.

That doesn’t sound offensive.  Accessing business servers.  Exceeding limitations.  Blah, blah, blah.  Ah, but read the more specific application:

The law must allow “prosecutions based upon a violation of terms of service or similar contractual agreement with an employer or provider,” Richard Downing, the Justice Department’s deputy computer crime chief, will tell the U.S. Congress tomorrow.

Ta da!  Violating terms of service will lead to prosecution!  Now let’s visit Match dot com’s TOS. Paragraph 9.a (in part):

You will not provide inaccurate, misleading or false information to the Company or to any other Member.

Ma’am, you’re not 115 lbs.  Sir, you’re really not funny nor the “life of the party.”  And the part where you acknowledge that you’re “single or separated from your spouse” (Paragraph 2)?  Well, remember when you got lonely a few weeks ago and you just needed someone to cuddle?  And now the man-child you’re in the process of divorcing took it the wrong way?

You’d say that you’re separated.

He’d say that you’re working through issues.

The US DOJ wants to say that you violated the site’s TOS – and they want to prosecute you.

Make. Me. Frigging. Gag.

Step back from this pathetic story a bit.  The US DOJ is saying that they have the right to criminally enforce a violation of a private contract.

Assume that you agree to cut my lawn for $20 a week.  I pay you from May through October.  If you cut it three times in some weeks, your hourly wage sucks.  But the gig is that some weeks you may not have to cut it at all, so the agreement is fair.  I’m out of town for the summers, but I come back in late July.  Guess what?  The grass is to my knees!  Do I call you?  No way.  I make two calls – I call another lawn service, and then I call the cops to have you arrested.  Ouch.

Private contracts are precisely that – private.  That means that they are not public.  The government has no hand in them.  None.  Any disputes are handled between the contracting parties.

Way back in England before we pinched their language and kicked them out of America, they had Debtors’ Prison.  It was full of people that missed rent payments or didn’t pay the grocer.  We don’t do that nor have we ever.

But the US DOJ is starting down that path.

Pathetic.  Just pathetic.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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