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If you live in the United States, a warning: you may want to read the terms of service of the websites you use a little more carefully. That's because a government prosecutor in New Jersey is pursuing criminal charges against the operators of a company that used an automated process to purchase event tickets on Ticketmaster.com for resale.

The charges are being brought under the Computer Fraud and Abuse Act (CFAA), which was passed in 1986 with the purpose of cracking down on the unauthorized accessing of computers (read: hacking). In U.S. v. Lowson, the prosecutor seeks to extend the CFAA to cover the violation of the Ticketmaster.com terms of service, which forbids individuals and companies from accessing the website in an automated fashion.

The Electronic Frontier Foundation (EFF), which filed an amicus brief in the matter, thinks this extension of the CFAA could have profound implications. The EFF's Civil Liberties Director, Jennifer Granick, stated:

Under the government's theory, anyone who disregards -- or doesn't read -- the terms of service on any website could face computer crime charges. That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails.

Indeed, the EFF points to other cases indicating that this is becoming a very real issue:

...in United States v. Drew, a woman was charged with violating the federal computer crime law for creating a false profile, which she then used to communicate inappropriately with a teenager who eventually committed suicide.

Just two weeks ago we filed an amicus brief in Facebook v. Power Ventures. There, Facebook makes basically the same claim that the government makes in the Wiseguys case: because Facebook's terms of service ban users from accessing their information through "automated means", aggregation tools violate the criminal law.

In U.S. v. Lowson, there doesn't seem to be any dispute that the operators of Wiseguys Tickets, Inc. violated the Ticketmaster.com terms of service. But on the surface, it seems somewhat incredulous to believe that such a violation should be addressed in a criminal court. The EFF says that "The government has suggested that this criminal prosecution is only about protecting consumers' fair access to event tickets," yet the CFAA was clearly not enacted by Congress to address consumer access to event tickets. It was designed to deter hacking. From this perspective, it seems most appropriate that the criminal charges be dismissed and Ticketmaster.com be forced protect its interests in civil court, on its own dime.

If, however, the criminal charges are not dismissed, private companies will potentially be granted "immense latitude to decide what conduct is criminal." This, of course, opens a huge can of worms. After all, terms of service vary from website to website, and they often contain terms that are difficult to understand. In addition, some terms may be unreasonable, or incompatible with the law itself. But consumers and businesses won't simply be able to ignore these terms of service; the alleged violation of some obscure term could potentially lead to criminal prosecution.

Additionally, the ability of private companies to enforce their terms of service through criminal prosecution will likely hurt consumers in other ways. In U.S. v. Lowson, the EFF notes that Ticketmaster is also a player in the ticket-reselling business, and therefore it stands to benefit by making it harder for companies like Wiseguys Tickets, Inc. to compete. If companies can create terms of service designed to clamp down on the competition, and then use the government to enforce those terms of service, consumers can expect less choice and innovation in many markets.

That would be a bad thing, and even though companies should have the ability to set and enforce terms of service, they should also be prepared to enforce them the right way. Hopefully the court in U.S. v. Lowson will send that message.

Photo credit: Tim Pearce via Flickr.

Patricio Robles

Published 5 July, 2010 by Patricio Robles

Patricio Robles is a tech reporter at Econsultancy. Follow him on Twitter.

2391 more posts from this author

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k2 herb

I dont believe that violating a terms of service is necessarily against the law, however I may be mistaken. Good article!

about 6 years ago

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Medisoft

In this particular case they derserve to be prosecuted.

about 6 years ago

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m

The reporter seems to have forgotten the most important part of the story -- this is a terrorist act against a corporation! Just ask BP. Anyone who does something a corporation doesn't want done is a terrorist. Subject to immediate punishment with no trial necessary.

about 6 years ago

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Jim Frez

@Medisoft:  You seem to have missed the point.  Even though the behavior is unacceptable, the proper way to deal with it is for TM to sue them in civil court.  The problem with treating this as a criminal matter is that it sets a precedent that all TOU/EULA violations are criminal.  

Consider the implications of this:  I make a website with a 10 page EULA.  Near the bottom it says that anyone who uses my site must be a vegetarian.  That's silly and arbitrary, but I do have the right to limit who uses my website. With current law the only recourse I have if I discover a violation is to terminate the user's access and possibly sue them for damages.  Since it is hard to show damages for silly things, that limits the harm a user can experience due to silly TOU/EULAs.  But if this precedent makes it a criminal offense then it does not matter that there was no damage... I can still have the government toss the person in jail.  That's unreasonable.

about 6 years ago

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Car Insurance Pros

I thinkt hat depends on what the ToS is for. For beta programs and such i think you should be held accountable for breaking tos

about 6 years ago

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luker

the govt cant and wont be an enforcer of corp EULAs and other corp rules.

this is likely going to be tossed out.

Ticketmaster are diots and its plainly an attempt to choke competition, but trying this out is interesting-to them and the lawyer who thought it up.

If it flies its the end of the web and Tickbastard as well.
ah see? now thats against their TOS and EULA, and their (C) and (TM).

TOS & EULAs on the web are all about indemnifying the website from anything, including their own crappy platform that may or may not work.

if they do succeed, howwever, then you can assure yourselves, all of you,
that everything in the X Files was true,
and its all going to be over soon,
as the black helicopters come up over the horizon and jack booted riot police come down the street looking for our guns, likely on a holiday that is usually spent at home by many.

about 6 years ago

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bob

Its all stupid!

about 6 years ago

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Jacob maslow

These guys did nothing criminal. They figured out a way to automatically break the captcha codes. It may be unfair to those trying to get tickets through conventional means. The attorney general can sue in state court and legislature can pass laws. This is a local consumer affairs issue. The ny attorney general has the means to go after guys like this without tying up the criminal court system. While this might make for a great Law & Order episode; expanding the computer hacking laws to such ridiculous lengths is uncalled for.

about 6 years ago

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Reggie

Violating Terms of Service is, at most, a civil matter.  Every lawyer knows this.

about 6 years ago

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ReasonableGuy

An outrageous mis-use of the criminal law. This is at most a violation of the "contract" (TOS). Criminal enforcement of a breach of contract is dangerous, and the prosecutor should be prosecuted for abuse of process, and misuse of public funds.

about 6 years ago

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KC

"The reporter seems to have forgotten the most important part of the story -- this is a terrorist act against a corporation! Just ask BP. Anyone who does something a corporation doesn't want done is a terrorist. Subject to immediate punishment with no trial necessary."

You totally suck, and whomever you are, your the biggest idiot I have ever heard of.  You should crall back into your hole of a life, grab a hot pocket and cry to your momma.

about 6 years ago

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some farter

You guys are all forgetting the CRIMINAL law mentioned in the story that says if you abuse computer access its a crime. They abused it by automated accessing. I'm pretty sure its been used in this fashion before.

about 6 years ago

Patricio Robles

Patricio Robles, Tech Reporter at Econsultancy

"some farter",

If you believe the CFAA's intent was to allow private citizens and corporations to dictate what kind of behavior is criminal, you must necessarily believe that I can implement a terms of service that forbids users from accessing a website with a non-Apple computing device and then have violators (eg. those who access my website with, say, a PC) criminally prosecuted for "authorized access.

Wiseguy Tickets used an automated bot to access a public website. The bot did not access functionality not available to the general public, nor did Wiseguy Tickets "hack" into Ticketmaster's servers.

Allowing companies to use government prosecutors to enforce civil matters creates a slippery slope of the highest order.

about 6 years ago

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กาแฟ

In this particular case they derserve to be prosecuted.

about 6 years ago

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Bangalow Accommodation

Stricter laws is what is needed to protect those that want to offer and partake in honest transactions on the internet

about 6 years ago

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K2 Blonde

Violating TOS is not necessarily against the law, but I'd like to see these individuals prosecuted!

almost 6 years ago

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