Believe It Or Not, Password Protected Websites Have A Right To Privacy

from the so-says-the-law dept

Thu, Jun 1st 2006 3:21pm — Mike Masnick

Last year we wrote about a legal case that had the right ruling for the wrong reason. It involved a guy who had an anti-DirecTV website. On the site, he included a "terms of service" at the top of the page, saying that no one from DirecTV was allowed on the site. Someone from DirecTV visited the site, and so the guy sued. This is obviously a ridiculous lawsuit, and the lower court dismissed it pretty quickly. Unfortunately, the way they dismissed it suggested that password protected websites had no right to privacy -- since they claimed that a website did not qualify as "electronic storage," and therefore was not protected under the "Stored Communications Act." That has worrisome implications, so the EFF joined with DirecTV to appeal that interpretation. The Appeals Court has now upheld the dismissal, but is using the EFF's reasoning instead of the original problematic reasoning. Basically, this recognizes that a website is electronic storage, but unless the site is configured to block out the public (such as with a password), then it isn't a violation if someone "unwanted" visits the site. As the court stated: "If by simply clicking a hypertext link, after ignoring an express warning, on an otherwise publicly accessible webpage, one is liable under the SCA, then the floodgates of litigation would open and the merely curious would be prosecuted."

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19 Comments

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hmmm, 1 Jun 2006 @ 4:24pm

does this mean that someone can set up a private tracker site for torrents, state that anyone from the IFPA, MPA, RIAA, and anyone not wanting to download for the pure enjoyment of free entertainment is NOT ALLOWED

then when they try to sue or take legal action, you sue them for using your site????

hmmmmmmmmmmm
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Anonymous Coward, 1 Jun 2006 @ 4:34pm

Re:
i wonder if that would work..... try it.
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reader, 1 Jun 2006 @ 4:37pm

only if the torrent site is pw protected
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Anonymous Coward, 1 Jun 2006 @ 4:42pm

Re:
how hard is it to password-protect a site?
not hard at all.

i have no idea about any of the rest of it..(setting up trackers and shit)
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nobody, 1 Jun 2006 @ 4:53pm

Maybe a better way would be to set up the site, password-protect it, and then state that NOBODY is allowed to use it. Then just sue the ones who piss you off, I.E., the mpaa.
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Chris, 1 Jun 2006 @ 5:00pm

Re: a better way
Unfortunately the precedent of not suing people who don't piss you off would undermine the suing of people who do piss you off. A lot of bands have to crack down on fans using their music (like in student films or on websites) because if they don't they can't get settlements when Nike or T-Mobile start to use their work.
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PopeRatzo, 1 Jun 2006 @ 5:29pm

I like to take the opportunity of this type of discussion to say that I wouldn't mind a bit if the entire entertainment/industrial complex collapsed completely.

I have no doubt that talented people will still find an audience and a way to make it pay.
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tard, 1 Jun 2006 @ 5:47pm

Re:
Yeah its callled concerts and tons of bands get rich on doing something called touring unfortunatly stupid people love music with which the "artists" lack talent and/or dont care about thier fans enough to tour.
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Anonymous Coward, 1 Jun 2006 @ 6:01pm

Re: Re:
a lot of the bands i like only tour in europe, and im only able to buy their cd's online.

dragonforce, who only toured over here after they signed with roadrunner
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ehrichweiss, 1 Jun 2006 @ 7:03pm

anyone know...
how the site was setup? it doesn't make it very clear if the site had password protection after the TOS or was a simple hyperlink. I'm guessing hyperlink but only because if not then he'd still be suing, one should hope anyway.
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Anonymous Coward, 1 Jun 2006 @ 7:23pm

Re: Re: Re:
dragonforce rocks
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Tim Arview, 1 Jun 2006 @ 9:04pm

Re: anyone know...
> I'm guessing hyperlink but only because if not then he'd still be suing, one should hope anyway.

Exactly. The original ruling said websites weren't covered under the SCA, but did not specify anything about password protection. The re-interpretation says the ruling stands but only because his site wasn't password protected.

Therefore, logically, his site must not have had password protection at the time. I'm sure he's fixed it now.

Really, though, if you *give* someone a password, is it ethical to sue them for using it?

My guess is the new ruling is intended to draw a similarity between home invasion and unauthorized website viewing. That makes sense, but if I give someone a key to my house, can I sue him for going inside? Obviously, hacking is one way to gain unauthorized access, but that's a given for litigation.

To continue with the analogy, the law says that landlords can't go in tenants' homes without their permission, even though the landlord has a key (not to mention the house itself *belongs* to the landlord). But it doesn't really say anything about - for example - your next door neighbor.

Sure, they've gotten a little bit of clarification, but there's still a lot of gray left.
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cactus, 1 Jun 2006 @ 11:18pm

auhhhh
your reading this means you agree to my terms of service. If you do not agree with these term please press the "any key" to continue living with your foot up your aurse. Not to mention all the web crawlers that index sites on search engines. So is this person going to sue google for crawling and indexing that site? If I live in the bad part of town(my website) Im going to put a door on my house with a key(login) or even a sign that says "go any further and I'll shoot or go crying that the big bad dish man is looking at me"
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Clair Ching, 2 Jun 2006 @ 12:32am

It is times like these that I have to agree with my friend's sentiments: If you don't want people to find out what something, don't put it on the internet. This is just getting trickier and trickier to sort out each day.
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mkam, 2 Jun 2006 @ 4:09am

Re: Re: a better way
My BS meter is going off.
I believe that you can selectivly sue. Do you have any references to any of these bands or to the fact that you can't sue Nike because you decided not to sue 'harry ballsack' college productions?

Just wondering. Not sueing the little guy doesn't put your music in the 'public' domain where it can be used commercially or not. I'm not a lawyer but this seems ridiculous.
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Scott, 2 Jun 2006 @ 6:01am

Re: Re: Re: a better way
Actually this makes sense. If you try to sue T-Mobile for using your work, they are going to say "Here are 20 other instances where you did not care." Now the key is commercial gain, a judge may overlook that fact if none of the sites used it to make money or promote in a manner that resulted in financial gain.

You can set precedent that can be used against you in court, I just don't know how far it goes.
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Anonymous Coward, 2 Jun 2006 @ 6:30am

Re: Re: Re: Re: a better way
All you have to do is require that people ask permission, then if college people and fans use your music, just say that they had permission. But if Big Faceless Co. uses your music, BLAM sue them for not obtaining permission. Simple.
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Truthiness, 2 Jun 2006 @ 11:58am

EULA
Um, although I'm a big DirecTV fan. I got to side with the anti-DirecTv guy. He bascially had a EULA for using his site and it was violated. Either rule that all EULA are invalid and unenforciable or deal with this guy's EULA. Just because he's a person and not a company doesn't mean he has no rights.
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|, 4 Jun 2006 @ 6:56pm

Re: EULA
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