Violating Web Site Rules Not A Crime

But a California district court judge's ruling leaves open the question of whether bypassing IP blocking is a criminal act.
A U.S. District Court judge on Tuesday ruled that it's not a criminal act to violate the Terms of Service of a Web site, a decision hailed by the Electronic Frontier Foundation.

The case, Facebook v. Power Ventures, arose because Power offered software that allowed users to aggregate Facebook friends and other data with similar sets of data from other social networking sites.

Facebook argued that because its Terms of Service forbid users from using automated methods to access user data, Power's software violated California's computer crime law, specifically section 502(c).

Section 502(c) prohibits access to computers or information that a person is not authorized to access.

The EFF filed an amicus brief arguing that any Terms of Service violation should be treated as a civil contract dispute rather than a crime. Criminal penalties, such as imprisonment, are generally more severe than civil penalties, such as fines.

"We argued that turning any violation of terms of use into a crime would give Web sites unfettered power to decide what conduct is criminal, leaving millions of Internet users vulnerable to prosecution for everyday activities," explained EFF attorney Marcia Hoffman in an online post.

But the judge was more receptive to another argument made by Facebook. The social networking site took steps to block Power's IP address to prevent its software from gathering Facebook user data, but Power changed its IP address to avoid being blocked.

This could be a crime, if such activity is considered to be circumventing a technological protection measure.

The EFF contends that such blocking should only be considered criminal if it's truly harmful and those involved intended such harm.

"There's nothing inherently wrong or unlawful about avoiding IP address blocking, and there are valid reasons why someone might choose to do so, including to sidestep anticompetitive behavior by other Internet services," said Hoffman.

Hoffman said the EFF intends to follow the case and hopes the judge will recognize the difficulties of treating the avoidance of IP address blocking as a crime rather than a contractual dispute.

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