You know those terms of service you didn’t read but signed anyway? The thousands of words of legalese you blithely ignored when you clicked “accept” at the bottom of the page? They could come back to haunt you.

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It turns out that some prosecutors consider violations of such contracts a criminal offense. Now Reddit, the San Francisco-based news-sharing website, is so concerned about that possibility it’s rewriting its terms of service so users don’t risk prosecution under the Computer Fraud and Abuse Act.

“As a business, [we] don’t ever want developers and third party groups or students doing a research project or other services to be scared that they’re going to face prosecution under the CFAA for breaking our terms of service,” said Eric Martin, Reddit General Manager.

The concern isn’t hypothetical. Federal prosecutors charged Reddit co-founder Aaron Swartz with breaking terms of service among other hacking-related crimes in 2011. Swartz hanged himself in January of this year.

And a California prosecutor used terms of service violations as a lynchpin of its case against  “My Space Mom” Lori Drew in 2009.

The prosecutions stem from an interpretation of the Computer Fraud and Abuse Act, a federal law against hacking. The law prohibits “unauthorized access” to computers, and some prosecutors have said this provision of the law applies to anything you do on a website that violates its terms of service.

Whether or not such charges can truly stick isn’t clear. Orin Kerr at George Washington University Law School says Reddit’s moved is based on a “misunderstanding of the law.”  Kerr writes in a blog post that federal prosecutors didn’t go after Swartz for violating terms of service. Their strongest charge was that Swartz broke into an  MIT closet and connected directly to its network, in order to steal articles protected by a paywall.

The Lori Drew case comes closer to a true terms-of-service prosecution, according to the Los Angeles Times. A U.S. attorney charged Drew with creating a fake MySpace account that she used to harass a girl who had offended her daughter. The girl committed suicide, and Drew faced charges of violating MySpace’s terms of service, which require users to provide “truthful and accurate” registration information.

U.S. District Judge George H. Wu threw out Drew’s conviction precisely because he was concerned about the precedent of prosecuting people for violating terms of service, the newspaper reported.

At the May hearing, Wu grilled Assistant U.S. Atty. Mark Krause at length about whether the government had prosecuted Drew under the appropriate laws when they asserted that violating MySpace’s terms of service amounted to a crime.

“Is a misdemeanor committed by the conduct which is done every single day by millions and millions of people?” Wu asked. “If these people do read [the terms of service] and still say they’re 40 when they are 45, is that a misdemeanor?”

The law surfaced again last week when the U.S. Justice Department charged Matthew Keys, a former web producer for a Sacramento television station, under the Computer Fraud and Abuse Act. Keys provided hackers a login for the websites of the television station’s owner, the Tribune Company, the DOJ charged. It said the hackers used the login to alter a headline in another property the company owned, the Los Angeles Times.

If convicted, Keys faces up to 10 years in prison, three years of supervised release and a fine of $250,000 for each count. Although Keys wasn’t accused of violating terms of service, the severe penalties he faces for this prank have added impetus to a movement for changing the law.

Last week members of the US House of Representatives debated Aaron’s Law, a proposal by San Jose Rep Zoe Lofgren to reign in anti-hacking prosecutions.

Not everyone agreed with the proposed changes. Several lawmakers at that hearing said the laws need to be tougher, given that hackers steal intellectual property and people’s financial data, according to The Hill:

Rep. Jim Sensenbrenner (R-Wis.), the chairman of the Subcommittee on Crime, Terrorism, Homeland Security and Investigations, which was holding the hearing, said that it may be time for Congress to “augment and improve” the CFAA to address international criminal groups. He said he would be concerned with any proposal that would decriminalize computer abuse that is currently illegal.

“The theft of valuable intellectual property is a serious strategic threat to the American economy, and it must be treated as such by U.S. law enforcement,” Sensenbrenner said.

Reddit isn’t waiting for an act of Congress. It wants to make sure its users won’t be guilty of a federal offense if, for example, one posts ads instead of news, or makes a mobile app to access the site from elsewhere.

Eric Goldman, a cyber law expert at Santa Clara University, calls Reddit’s move “terrific.” He is concerned that lawyers write “overly expansive” restrictions into online user contracts, thereby “unwittingly turning many or all of our clients’ users into criminals.”

Following the Lori Drew case, Goldman advocated that cyberlawyers write contracts with more “permissive” clauses that don’t trigger — or even enable — criminal prosecution.

While analysts disagree about the wisdom of Reddit’s move, they say it’ll have an impact if other companies follow suit.

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  • http://twitter.com/anarcho anarcho

    I hate to say it, but even if you write out the CFAA the US Government will demand by federal mandate that it be used (watch and see if I am not correct) or it will add a flurry of unclear and broadly worded “laws” to make up for the non-use of CFAA (if you know anything about federal laws they repeat and multiply – see the recent batch)! Why is this? Because we passed over the line of fascism ages ago, and quite frankly its time to admit that the functions of both our corporations and the government which serves elite interest is no longer acceptable. The governments forceful claim to regulate the internet, or usurpation of such, is specifically in its interest of maintaining the current systemic nightmare to the benefit of the few.

    As an example, Mr. Wu’s recent article in the New Yorker is a Pollyanna plea – as if Obama is going to override everything being done by the DOJ when he got up with great excitement and zeal in the recent State Of The Union and pledged to “go after those hackers,” when what he really meant was Wikileaks and those employed in exposing the damaging and deadly secrets both foreign and domestic against the people. They do not like their dirty laundry exposed, and as in the case recently of Auernheimer they will protect the tender profitable interests of companies like AT&T (who has repeatedly exposed the Americans people privacy to the government, and was also protected for those offenses), rather than the safety and privacy of its users – he received 41 months.

    No, it is time to remove the charters of the corporations which damage the American People, whether they be communication companies or Banks full of gangsters. The government deserves to be assaulted, have its pants pulled down in public while the people kick it in the rear. It is only monumental movements with these types of intentions and tools which will divest this current debacle. Oh, and when they pull the supposed cover off of Anonymous (whatever that means) they will find out it is the American People! This is what everyone fears to say – they are trying to hurt your children, they want to criminalize their dissent, and if they will not shoot them with bullets like they did in COINTELPRO they want to crush them in prisons – they want to destroy the next generation of dissent, and what else do we have but this medium that they do not have the first clue regarding?

Author

Aarti Shahani

Aarti Shahani is a reporter at KQED, focusing on business and technology. She came to San Francisco as a Kroc Fellow with NPR. She was part of the ProPublica team awarded an Investigative Reporters & Editors Award for Post Mortem – a series examining the unregulated coroner and medical examiner industry. Shahani got her Master’s in Public Policy from Harvard’s Kennedy School of Government, supported by the Paul & Daisy Soros Fellowship and a Public Service Fellowship. She studied globalization as an undergraduate at the University of Chicago. She was raised in Flushing, Queens – in the nation’s most diverse zip code.

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