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.