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Yes, The DOJ Thinks It's A Crime When A 12 Year Old Reads The NY Times

Legal Issues

from the reform-the-cfaa-now dept

Fri, Apr 5th 2013 7:54am — Mike Masnick
We've been talking a lot lately about the need for serious reform of the Computer Fraud and Abuse Act (CFAA), which was initially supposed to be a law about malicious hacking, but has been used repeatedly by the DOJ and others to attack something so simple as a minor terms of service violation as a potential felony. While certain courts have rejected the DOJ's interpretation, that has not stopped the DOJ from claiming that its interpretation can be applied in other circuits. Even more bizarre is that, rather than fixing the law, Congress's most recent actions have suggested an interest in expanding the law even further, increasing the punishment levels for those the DOJ decides to go after.

The EFF has pointed out just how ridiculous it is to argue that violating a terms of service is a potential felony, noting how that even makes children who read online news sites potential felons for violating terms of service. This is, in part, due to another bad law that we've spoken about, the Children's Online Privacy Protection Act, or COPPA. The issue here is that online sites have stricter rules if they're seen as targeting children under the age of 13. To avoid this potential liability, many websites simply inserted a clause into their terms of service saying that you can only read the site if you're over 13 (some sites say 18 and others say between 13 and 18 need a parent's approval). While this is somewhat lazy lawyering on the part of those sites (to ban outright), those are their terms of service. And violating such terms violates the CFAA under the DOJ's interpretation.

The EFF notes that such age exclusion provisions are pretty common, and sites like the NY Times and NBC News bar children under 13 entirely.
This means that inquisitive 12-year-olds who visit NBCNews.com to learn about current events would be, by default, misrepresenting their ages. Again, this could be criminal under the DOJ's interpretation of the CFAA.

We’d like to say that we’re being facetious, but, unfortunately, the Justice Department has already demonstrated its willingness to pursue CFAA to absurd extremes. Luckily, the Ninth Circuit rejected the government’s arguments, concluding that, under such an ruling, millions of unsuspecting citizens would suddenly find themselves on the wrong side of the law. As Judge Alex Kozinski so aptly wrote: "Under the government’s proposed interpretation of the CFAA...describing yourself as 'tall, dark and handsome,' when you’re actually short and homely, will earn you a handsome orange jumpsuit."

And it’s no excuse to say that the vast majority of these cases will never be prosecuted. As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.” Instead of pursuing only suspects of actual crimes, it opens the door for prosecutors to go after people because the government doesn’t like them.

Unfortunately, there’s no sign the Justice Department has given up on this interpretation outside the Ninth and Fourth Circuits, which is why the Professor Tim Wu in the New Yorker recently called the CFAA “the most outrageous criminal law you’ve never heard of.”
Then the Atlantic Wire helpfully jumped in and highlighted many other publications and their online terms of service, showing that young readers of many of today's most popular news sites are potentially breaking the law every time they do so under the DOJ's clearly stated position on the CFAA.

The EFF followed it up by pointing out that, until just recently, if you were a 17-year-old girl (or younger!) reading the magazine Seventeen online, you were almost certainly breaking the law under the DOJ's interpretation of the CFAA, since its terms restricted visitors to those 18 and older.

Rather than "trusting" the DOJ not to abuse this kind of thing, wouldn't we all be better off fixing it?
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Filed Under: age restrictions, cfaa, coppa, terms of service

50 Comments

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Reader Comments

The First Word

“
Scenario 1: Troll makes first comment in a thread and derails it with long tree of replies.

Scenario 2: Troll-fighter makes first comment in a thread and derails it with long tree of troll replies and sarcastic troll imitators.

I fail to see the difference. If you oppose trolls, and you're commenting first, it's best to comment about something that doesn't refer trolls or trolling. Otherwise, it's just the comment section version of the TSA.
—BentFranklin
 ”

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  • icon
    silverscarcat (profile), 5 Apr 2013 @ 6:11am

    See?

    Bob, AJ, OOTB...

    THIS is why bad laws need to be scrapped and fixed!

    Or would you rather turn EVERYONE into criminals?

    BTW, that includes yourselves.

    Would you rather we keep up with these laws the way they are and see the consequences of bad legislation?

    Or would you rather we FIX the broken mess before it gets worse?

    [ link to this | view in chronology ]

    • identicon
      out_of_the_ajbob, 5 Apr 2013 @ 6:23am

      Re: See?

      Fact: the government never makes mistakes, never oversteps its bounds, and individuals within the government never abuse their privileges.

      Ergo, your argument is invalid.

      Blargle blargle.

      [ link to this | view in chronology ]

    • identicon
      out_of_the_blue, 5 Apr 2013 @ 8:50am

      Re: See? @ "silverscarcat"

      @ "Or would you rather we FIX the broken mess before it gets worse?"

      First, THANKS for the advance publicity, for begging me to comment.

      2nd, you go wrong with the sheer ad hom assertion that anyone commenting here is pleased with CFAA (that I've seen or know of), let alone more of it.

      3rd, so go ahead and FIX it already! Let's hear your plan. HOW is the problem, ain't it? I'd suggest forming alliance, not knee-jerk assertions that make enemies. -- If you'd read my comments with even minimally open mind, you might see that I support copyright but definitely not unlimited copyright let alone unlimited gov't.


      @ "BentFranklin": Those you mistake for "troll-fighters" are those whom I call fanboy-trolls. They have nothing BUT ad hom trolling, so don't deny them their fun. In contrast, I WANT them to comment, more the better. They ARE the Typical Techdirt Trolls. You too will fail at "Don't feed the troll", even when you think they're on your side.


      ANYHOO, what's to worry? DOJ IS getting pushed back: "the Ninth Circuit rejected the government�s arguments". That's all can be done now. -- Not least because ANY attempt at legislating reform is SURE to result in WORSE. The more brazenly draconian DOJ is actually helps.

      [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Apr 2013 @ 9:02am

        Re: Re: See? @ "silverscarcat"

        "First, THANKS for the advance publicity, for begging me to comment."

        So...you are happy to be summoned as the court jester?

        To each his own, I suppose...

        [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Apr 2013 @ 11:13am

        Re: Re: See? @ "silverscarcat"

        "DOJ IS getting pushed back: "the Ninth Circuit rejected the government�s arguments". That's all can be done now. -- Not least because ANY attempt at legislating reform is SURE to result in WORSE. The more brazenly draconian DOJ is actually helps."

        For an asshole who was cheerleading the DoJ, OotB is suddenly trying to backtrack as fast as a Republican on womens' rights.

        [ link to this | view in chronology ]

      • icon
        JP Jones (profile), 5 Apr 2013 @ 1:33pm

        Re: Re: See? @ "silverscarcat"

        2nd, you go wrong with the sheer ad hom assertion

        Ad hom...I don't think that word means what you think it means.

        If you'd read my comments with even minimally open mind, you might see that I support copyright but definitely not unlimited copyright let alone unlimited gov't.

        If you'd read this blog with even a minimally open mind, you'd realize that's the whole point of the articles here. We currently exist in a country where "unlimited copyright" is the reality. Lack of enforcement on something that's arguably unenenforceable does not change this fact.

        Current copyright law means that *everything* created since you were born will be copyrighted until after you die. I don't really care if it expires after I'm dead; nothing created now will be relevant by then anyway.

        How can a company copyrighting rounded corners for beyond the human lifespan be considered anything other than "unlimited?"

        [ link to this | view in chronology ]

        • identicon
          Anonymous Coward, 6 Apr 2013 @ 12:35pm

          Re: Re: Re: See? @ "silverscarcat"

          I'm pretty sure the rounded corners thing was a design patent, not copyright, so only good for maybe twenty years. That's not to say that it's a valid patent.

          Sorry to be off-topic, but the confusion with copyright, trademark and patents is why many of us object to "intellectual property".

          [ link to this | view in chronology ]

        • icon
          Sheogorath (profile), 7 Apr 2013 @ 2:39pm

          Re: Re: Re: See? @ "silverscarcat"

          How can a company copyrighting rounded corners for beyond the human lifespan be considered anything other than "unlimited?"
          Actually, Apple patented rounded corners for twenty years only. Please don't make valuable arguments invalid by stating innaccuracies.

          [ link to this | view in chronology ]

    • identicon
      Andrew Brooklyn, 5 Apr 2013 @ 8:53am

      Re: See?

      The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.
      "Ayn Rand"

      [ link to this | view in chronology ]

  • icon
    BentFranklin (profile), 5 Apr 2013 @ 6:32am

    Scenario 1: Troll makes first comment in a thread and derails it with long tree of replies.

    Scenario 2: Troll-fighter makes first comment in a thread and derails it with long tree of troll replies and sarcastic troll imitators.

    I fail to see the difference. If you oppose trolls, and you're commenting first, it's best to comment about something that doesn't refer trolls or trolling. Otherwise, it's just the comment section version of the TSA.

    [ link to this | view in chronology ]

    • icon
      Anonymous Howard (profile), 8 Apr 2013 @ 2:58am

      Re:

      That's exactly what pisses me off mostly, and that's why I suggested that these comment threads be collapsed into the first reported post altogether.

      [ link to this | view in chronology ]

  • icon
    Ninja (profile), 5 Apr 2013 @ 7:19am

    Stop treating kids as retarded beings that must be protected from all "questionable" input. As broad as "questionable" can be. I plan to make my kid engaged in world, politics and whatever as soon as possible. I have a 10-yr-old little friend that loves to discuss such things with me even if he doesn't fully understand all the time.

    As for CFAA and the DOJ it doesn't matter for them. All that matters is that it opens the door for prosecutors to go after people because the government doesn�t like them.

    China must be proud.

    [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Apr 2013 @ 10:57am

      Re:

      "I have a 10-yr-old little friend"
      Sounds a bit wrong.

      [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Apr 2013 @ 6:07am

        Re: Re:

        Why does it sound wrong, when the wrongness is a society that treats all adults as potential child molesters.

        [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 8:14am

    OMG, you mean a law made in response to a Hollywood movie about kids hacking into the military's computers and starting WW3 turned out to be way too board and over reaching?!?

    Who could have ever guessed something like this would happen?!?

    [ link to this | view in chronology ]

  • icon
    TasMot (profile), 5 Apr 2013 @ 8:17am

    Schools Better Inform Teachers of This

    One HUGE unintended consequence of this is that now teachers are going to have to teach all students under the age of 18 to very carefully read the Terms of Service on any website they land on to do research for school. Especially any class that references current events.

    To protect themselves (like NYT did), most big news services are going to have this clause also. So every student trying to research current events are going to have to be trained to be lawyers in order to read the TOS to see if they can use that online service to do their research.

    Let's add some secondary liability too. Does this mean that Google and other search engines are going to need to know the age of the person doing the search so that they can eliminate search results that they are not "protecting a child from viewing" because they are too young? This could get very rediculous very fast.

    [ link to this | view in chronology ]

    • icon
      Planespotter (profile), 5 Apr 2013 @ 8:22am

      Re: Schools Better Inform Teachers of This

      Personally I would like to see every single website have to put up a banner that explains exactly what ages may view their pages and also why they have had to put the banner up. Once every single American has to click through a banner, proving via some as yet unknown way that they are old enough to view the page, you can imagine the backlash against such stupid legislation will begin.

      [ link to this | view in chronology ]

    • icon
      Oblate (profile), 5 Apr 2013 @ 12:01pm

      Re: Schools Better Inform Teachers of This

      Does this mean that when a teacher assigns homework involving research on the internet that they are committing criminal conspiracy?

      Are the librarians going to be charged as accessory to a felony for letting students use computers?

      Let's seem them try to spin this as 'for the children'.

      [ link to this | view in chronology ]

  • icon
    Chosen Reject (profile), 5 Apr 2013 @ 8:19am

    There was a discussion about this on Hacker News the other day. A lot of people thought the EFF was being stupid because certainly the DoJ would never arrest a 12 year for reading the news. I think that misses the point. To take it to an extreme, the government could make it a felony to drink water in the morning. We'd all say, "Surely they'll never enforce that." But there are two questions:
    1) Why should it be against the law if they aren't going to enforce that law?
    2) How long before they enforce that law just to get someone for some other reason?

    I get that Capone was a bad guy, and yay we got him on tax evasion, but I fear that too many people think that was a model to emulate. "If you can't get them on what you really want to get them on, get them on any ticky tack little thing," they'll say/think. Which means the more ticky tack little laws that "surely they'd never enforce" the better.

    It needs to stop.

    Then there's the idea of someone other than the government deciding what is a felony. It's not just large corporations. Anybody with a blog could post a ToS that does the same thing here. Case in point:

    ToS for reading the above comment: You agree that you are not a cop or any employee of the government, and that if you are, you will only read this while standing naked in the middle of the road while holding a half plucked chicken. Failure to abide by these terms will result in felony prosecution under the proposed CFAA changes.

    [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Apr 2013 @ 9:12am

      Re:

      Sure the government would never look for a 13 year old to charge under terms of service, but what if they wanted something from you. "We notice your son has been viewing the NYT. Isn't he only 13? If you don't cooperate I guess we will have to charge him with a felony."

      [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 8:21am

    how the hell can anyone trust the DoJ? look at what it has become. it is nothing like the law enforcement agency it should be. it's more like a mixture of the USA entertainment industries private security firm and a parents worse nightmare!

    [ link to this | view in chronology ]

  • icon
    gorehound (profile), 5 Apr 2013 @ 8:23am

    All I know is my Parent's loved how I learned to read even before the 1ST Grade and they were proud of that.By the time I was around 6 my little 3 year old brother would sit in my lap while I taught him to read using that old 50's-60's book with the pictures and the See Spot Run stuff.

    I also read the Newspapers every day which I must have started doing around 8-10 at the most.My Parent's loved how I would read News and Watch TV News and try to learn about the World.

    Now I state that either these Government Bozos want to keep Kids stupid and uninformed or they just love creating bad laws or it is a combo of both.

    [ link to this | view in chronology ]

    • icon
      Rikuo (profile), 5 Apr 2013 @ 8:53am

      Re:

      I was able to read by the time I was two. Precocious little scamp I was. I was devouring encyclopedias by the time I'd started school, and yes, that meant I learned the birds and the bees years before anyone else. If I'd done this today, with the CFAA in force, I'd be a hardcore criminal merely for being a child prodigy.

      [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 8:34am

    Does a 12 year old visiting a site to read the TOS commit an offence if the TOS prohibits them from the site? Note, they may have to visit the front page to find the TOS page.

    [ link to this | view in chronology ]

    • icon
      justok (profile), 5 Apr 2013 @ 8:37am

      Re:

      What about university/college or even school websites?

      [ link to this | view in chronology ]

    • icon
      Rikuo (profile), 5 Apr 2013 @ 8:56am

      Re:

      Your comment should have been the first word. I gave you last word instead as a consolation prize. What about the average citizen? Say the TOS of the website prohibits viewing the actual website at all. In order to read the TOS, you have to view the website. Just like the anti-circumvention clause of the DMCA, to try and be legal, you end up committing a crime.

      [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Apr 2013 @ 9:54am

        Re: Re:

        Its like shrink wrap licenses, you agree to the license before you can read it.

        [ link to this | view in chronology ]

    • icon
      FarSide (profile), 5 Apr 2013 @ 1:12pm

      Re:

      shhhhhh... you aren't supposed to point out catch-22s!

      Oh, nm, it doesn't matter anyway.. the courts are already quite happy with upholding things like that.

      Obviously the answer is to ask a grownup before going to any web site to check the TOS.

      [ link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Apr 2013 @ 6:12am

        Re: Re:

        Which is stupider, making minor breaches of TOS a felony, or politicians expecting children to read and understand them?

        [ link to this | view in chronology ]

      • icon
        tqk (profile), 7 Apr 2013 @ 7:30am

        Re: Re:

        Obviously the answer is to ask a grownup before going to any web site to check the TOS.

        There's an idea. s/grownup/DoJ/! Flood the DoJ with requests to vet websites for you (Cc:'ed to your member of Congress).

        "Hi, I'm seventeen years old. Is it legal for me to go to seventeen.com?"

        [ link to this | view in chronology ]

  • icon
    TheLastCzarnian (profile), 5 Apr 2013 @ 8:49am

    Allowing prosecutors to make decisions

    There was an interesting conversation I heard on NPR yesterday. The show was on mandatory minimum sentences, but the closing statements were very revealing. A former prosecutor's final statement was that mandatory minimums were necessary because it gave the prosecutor descression to increase or decrease sentences as they deemed necessary, rather than leave it to a judges whim. Another guest made the point that a judge's decision is public and subject to review, while a prosecutor's dealings are behind closed doors. Power without accountability.
    I think prosecutors may have become power-drunk.

    [ link to this | view in chronology ]

    • icon
      Rikuo (profile), 5 Apr 2013 @ 8:56am

      Re: Allowing prosecutors to make decisions

      May have? Methinks, you are a tad naive, my friend.

      [ link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Apr 2013 @ 6:20am

      Re: Allowing prosecutors to make decisions

      A prosecutor should only have the power to determine whether or not the evidence is strong enough to be able to bring a case. They should not be able to suggest sentence length in a plea bargaining situation, as this encourages them to use it as a tool to gain guilty pleas by threatening long sentences. Sentencing should be uo to the Judge, not the prosecutor.

      [ link to this | view in chronology ]

  • icon
    MonkeyFracasJr (profile), 5 Apr 2013 @ 9:02am

    @ Bent Franklin's comment

    This is why I would like to see a feature that would allow readers to collapse entire threads in the comments. It would allow readers to "filter" out the derailed sections and focus better on the actual discussions.

    [ link to this | view in chronology ]

    • icon
      egghead (profile), 5 Apr 2013 @ 10:50am

      Re: @ Bent Franklin's comment

      Sadly, the trolls would then just start posting comments without replying. They might even use that tic-tac-toe symbol or the loopy-tailed-a. Kids these days; who knows, next they might start leaving out letters, or worse, replacing them with similarly shaped numbers and symbols to avoid filters.

      [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 9:09am

    Printed, and hung on the monitor:

    �Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.�

    I like this phrase so much, that I'm going to trot it out every time it's applicable from this day forward.

    [ link to this | view in chronology ]

  • identicon
    Bengie, 5 Apr 2013 @ 9:20am

    Everyone everywhere

    The government's job is so much easier when everyone is a felon, because they can just arrest you then make up a reason.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 9:33am

    As Judge Alex Kozinski so aptly wrote: "Under the government�s proposed interpretation of the CFAA...describing yourself as 'tall, dark and handsome,' when you�re actually short and homely, will earn you a handsome orange jumpsuit."


    You really think someone would do that? Just go on the internet and tell lies?

    [ link to this | view in chronology ]

    • identicon
      'Honest Abe' Lincoln, 5 Apr 2013 @ 12:54pm

      Re:

      Of course not, everyone(myself most of all), knows that people would never lie on the internet!

      [ link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 5 Apr 2013 @ 6:52pm

      Re:

      You really think someone would do that? Just go on the internet and tell lies?

      Mike does it professionally. That's why he's too ashamed to discuss his personal beliefs frankly.

      [ link to this | view in chronology ]

  • icon
    MikeC (profile), 5 Apr 2013 @ 9:39am

    It's is a crime.

    I too believe it should be a crime for a child under 13 to read the NYT, they are impressionable and should not be exposed to the drivel published by the NYT as well as Seventeen magazine or ABC News. we need them to learn from far better sources than those - though I am not sure where they might find that. In the long run this might be a good thing?

    Mike C.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 9:52am

    If ToS agreements are going to be law-binding (i.e. potential felony for violating), wouldn't the logical step (aside from not making them law-binding) be to make it so that only actual laws can appear in a ToS? Who in their right mind would think it logical to give anyone the power to make up whatever laws they want! As far as I'm aware even legal contracts can't go that far.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 9:54am

    So everyone is a criminal and if the DOJ takes a disliking to you, they can just see what swath of laws you've broken according to their interpretation.

    That's really no way to run a society.

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 9:58am

    Rather than "trusting" the DOJ not to abuse this kind of thing, wouldn't we all be better off fixing it?

    Are you saying the DoJ is wrong to fear, ostricize and criminalize intelligent people, and people who understand and embrace technology?

    I'm afraid their paradigm is coming from 250 million Cletuses/Cletusannas voting for a few hundred idiots who echo back to them that being uninformed is the most patriotic thing going. Debating and practicing stupid is the easiest floor show in politics... ever. Why don't you try to intepret law for a living.. it's HARD!

    So give the poor DoJ a break... it's just not natural to part with convenience after all.

    [ link to this | view in chronology ]

  • icon
    Trevor (profile), 5 Apr 2013 @ 10:00am

    The Point

    I don't believe the DOJ will go after kids for reading news sites.

    I do however believe the DOJ will add these charges on to someone arrested for something else, when an internet search or computer search reveals they accessed a site contrary to the TOS to bolster the charge sheet.

    Also, this broad law gives the DOJ the leeway to go after people it doesn't like, because many millions of people have violated a site TOS, or played Counterstrike on a school computer at some point.

    [ link to this | view in chronology ]

  • identicon
    Trish, 5 Apr 2013 @ 10:36am

    In Soviet America, everyone's a criminal!

    [ link to this | view in chronology ]

  • icon
    pesti (profile), 5 Apr 2013 @ 11:40am

    The most committed crime on the internet.....

    ..is a felony!!!my god and if I really think about it...3 strikes...omg.I'm looking at life.

    [ link to this | view in chronology ]

  • identicon
    Cowards Anonymous, 5 Apr 2013 @ 11:49am

    Worse, since most companies explicitly state that they may unilaterally change their Terms of Service at any time, they could make what you did on their site yesterday illegal today.

    Don't like what that Anonymous poster said in a comment on your site? Change the Terms of Service to ban Anonymous posts and if they don't remove or identify their posts immediately, felony!

    [ link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Apr 2013 @ 4:30pm

    jails are run by companies wanting to show a good profitable and growing bottom line to the shareholders, the easiest way for the government to subsidise this area of the national economy is to create a bigger criminal class, new people to lock away and fill the growing number of jail cells,

    [ link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 5 Apr 2013 @ 6:54pm

    OMG the law is so freaking scary! Save us, Pirate Mike! Save us with your idiotic FUD pieces and your complete unwillingness to discuss your personal beliefs directly! You're so freaking awesome! I love people who aren't honest and who spread idiotic FUD to dipshits! You're the best. Um, sorry. UR da BESTESTTTT!!!!!! DUUUUUUDDDDDDEEEEEE!!!!!!

    [ link to this | view in chronology ]

The Last Word

“
Does a 12 year old visiting a site to read the TOS commit an offence if the TOS prohibits them from the site? Note, they may have to visit the front page to find the TOS page.
—Anonymous Coward
 ”

Document Accidentally Filed Publicly Reveals Google Fighting Back Against Government Snooping
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