Did Stephen Colbert And President Bill Clinton Violate The CFAA?

from the another-day,-another-example dept

Tue, Apr 9th 2013 11:01am — Mike Masnick

Last night, former President Bill Clinton joined Stephen Colbert on his TV show, The Colbert Report. As many people have noted, at the very end of the program, Colbert told Clinton that he had taken the liberty of signing him up for a Twitter account, since Clinton does not currently use Twitter (he joked that he was afraid no one would reply to his tweets). The Twitter account is @PrezBillyJeff, and Colbert sent Clinton's first tweet live while on the air. If you're in the US or the one or two other places that Hulu actually works, you can see the exchange below (if you're elsewhere, blame Viacom for being stupid): Of course, as we've been discussing this week, the CFAA is an awful bill concerning hacking, and needs to be reformed. A big part of the problem is that it appears to criminalize what seems like every day behavior, and the DOJ has interpreted the CFAA broadly. While not all courts agree, the DOJ has argued that merely disobeying a website's terms of service means that you've violated the CFAA by accessing content either without authorization or by exceeding authorization.

Let's jump over to Twitter's terms of service. There, they clearly forbid impersonation:

Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others

Now, you could argue that Colbert registering an account for Clinton without his permission does not reach that level, but are you confident that someone else doing the same thing less publicly wouldn't run into problems if their tweets pissed someone off? An account that many people believe actually belongs to Bill Clinton would be highly valuable. Indeed, just overnight the account has racked up tens of thousands of followers. In the meantime, it's not even entirely clear who actually controls the account. Colbert registered it and tweeted from it. Are any future tweets coming from Colbert or Clinton or someone else? It's not difficult to make an argument that the account is intended to confuse others. Furthermore, if Colbert is transferring the account over to Clinton, it means that Clinton never actually agreed to the terms of service in the first place. Would that mean he is then abusing the use of the service?

While they appear to now have been deleted, according to the Washington Post, after the inaugural post done live on the air, there were a series of other tweets in which it was not clear if it was Clinton or Colbert tweeting. One had "Clinton" refer to "Colbert" as his new "BFF" and the tweets used the hashtag "#notColbertpretendingtobeme." At the very least, there is clear confusion, and a regular person might assume that this is Bill Clinton tweeting. If it's actually Colbert, it could be seen as a CFAA violation.

Yes, this is a stretch -- no doubt about it. But that's part of the problem with the CFAA. It is so broadly worded that simple activities like these can be twisted into a violation should someone in power wish to do so.

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Filed Under: bill clinton, cfaa, cfaa reform, impersonation, stephen colbert, terms of service
Companies: twitter

76 Comments

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Anonymous Coward, 9 Apr 2013 @ 11:14am

So desperate. It's a parody account. It's not a federal crime. The FUD is strong with you, Mike.

So when are you going to address my points about your similar FUD post yesterday when you claimed that person was violating the DMCA and the CFAA by using somebody else's password (with that person's permission) to watch HBO Go? Are you not capable of defending what you right? You wouldn't misstate the law just to spread FUD, would you?

No, not Mike. He's as honest as a three dollar bill.

Yes, this is a stretch -- no doubt about it.

I'm glad we agree. What's the point of this mindless, idiotic FUD? Seriously. WTF is wrong with you? Can you just not calm down and take a step back? Do you really think the world is so terrible that you must make post after post spreading only idiotic FUD? Seriously, dude. WTF?
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Anonymous Coward, 9 Apr 2013 @ 11:15am

Re:
*write, not right. Mea culpa.
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Anonymous Coward, 9 Apr 2013 @ 11:26am

the only way this would make for a prosecution would be if Clinton became an ordinary person. no law enforcement agency or government is interested in taking a famous person to court, regardless of where the fame came from, let alone winning a case against them. they are only interested in people who cant defend themselves for whatever reason and can expect to get a win. the exceptions are people like Dotcom. in these cases there are vendettas being carried out on behalf of third parties who dont have the guts to do anything themselves and can also greatly influence the way a judge will rule, as in TPB spectrial!!
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Anonymous Coward, 9 Apr 2013 @ 11:26am

@AC
The "point of this mindless, idiotic FUD" is that everyone agrees with you that this shouldn't be a violation of any law. But if Stephen Colbert was a strong public supporter of open access, like Aaron Swartz, and the feds wanted him to shut up, they might make his life a living hell for a few months/years trying to get him to 'fess up to a felony and take a fall and go to jail for a while under this law by using the broad wording to their advantage. He technically violated their terms of service by setting up an account for someone other than himself. Under the law, terms and service violations violate the CFAA. If a site's terms of service says "BBy using this service, you agree to eat 12 raw eggs everyday" and then you don;t eat 12 raw eggs a day, you are violating the CFAA. They can use this law to go after people they don't like for doing things that shouldn't be illegal. That person needs to endure the stress and expense of fighting or agree to a plea bargain that makes them a criminal for life and puts them in jail.

If everyone is doing things that the law deems criminal, the government has the power to go after ANYONE they choose to coerce and bully them. The fact that they won't use the law against everyone who breaks it doesn't make it okay; it's part of the problem. Enforcemenent of the law should be fair, equal, and transparent (ie. when you break the law, you should know that what you're doing is wrong). Of course the law wasn't intended to go after the HBO GO password borrower, or Stephen Colbert, but the fact that it COULD be used to coerce them into doing whatever the govt wants is a huge problem.

What is hard to udnerstand about that? Aaron Swartz could have been any of us.
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Anonymous Coward, 9 Apr 2013 @ 11:31am

Re: @AC
Comparing Swartz to President Clinton and Colbert here is idiotic and then some. Swartz intentionally violated the CFAA, through his fraud obtaining millions of materials worth millions of dollars.
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Anonymous Coward, 9 Apr 2013 @ 11:32am

Re:
DMCA anti-circumvention clause.

CFAA using another person's password "illegally" through DMCA.

Your move, dickbag.
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Anonymous Coward, 9 Apr 2013 @ 11:32am

Re: @AC
"Under the law, terms and service violations violate the CFAA."

That is not clear. However, the Justice Department thinks this is the case. So you could be prosecuted, but perhaps not convicted, depending on which court you landed in.
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Newt Gingrich, 9 Apr 2013 @ 11:32am

Finally!
A real reason to Impeach President Clinton and... Oh, sorry, I got this confused with Monica.
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Anonymous Coward, 9 Apr 2013 @ 11:33am

Re: Re: @AC
But they weren't. Which is the whole crux of the problem.
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Anonymous Coward, 9 Apr 2013 @ 11:33am

Re: Re: @AC
Wow and here I thought you couldn't stretch the truth any further.
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Anonymous Coward, 9 Apr 2013 @ 11:42am

Re: Re:
He actually did cite a case where using someone else's password was NOT circumvention under the DMCA. Password trafficking is illegal under the CFAA, which I think made yesterday's case a clear violation... but in today's case, there's no intent to defraud.
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Anonymous Coward, 9 Apr 2013 @ 11:51am

Mike--

As long as you're suggesting that a former President of the United States has violated a criminal law, could you be so kind as to identify exactly which part of the CFAA you think he violated?

That way, we can run through the elements and do the actual analysis. I mean, you wouldn't suggest that President Clinton committed a crime without being able to walk us through it, right? You're not THAT desperate, are you?

Thanks!

P.S. It's so dumb it fucking hurts. Seriously, dude. This is most desperate thing I've seen in a long time, suggesting that President Clinton committed a criminal act. It's a new low for you, which is incredible. Seriously.
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Anonymous Coward, 9 Apr 2013 @ 11:59am

Re: Re: Re:
Thanks. Yeah, with 10 seconds of looking I found a case that said using someone else's password is not a DMCA violation: http://www.techdirt.com/articles/20130406/22004022615/which-ny-times-reporter-jenna-wortham-accident ally-reveals-how-she-violated-both-cfaa-dmca.shtml#c369 I found a couple more cases that say the same thing, and none that say the opposite. I could find no appellate court that addressed the issue. Just trial courts.

As far as the CFAA claim is concerned, Mike didn't identify which part of the Act he is looking at. He mentioned the $5,000 threshold, and then had some FUD about how since Swartz met that threshold then this girl using someone else's password to watch GoT could be spun that way too. Of course, Swartz downloaded millions of articles that cost millions of dollars to produce, collate, host, etc., and the school spent more than that trying to stop him. So the analogy is completely idiotic...

But, hey, President Clinton violated the CFAA!!!! OMG, the law is so dumb!!!! President Clinton breaks the law, so we should too!!!! Yeah!!!

Sigh.
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Anonymous Coward, 9 Apr 2013 @ 12:13pm

Re:
First up, did you read the article?
Violating ToS could be considered a CFAA violation.
1. Colbert set up an account in Bill Clinton's name.
2. He tweeted something in Bill Clinton's name.

I.E. Colbert violated Twitter's ToS.

Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others

With laws that vague that it makes just about everyone guilty, doesn't that mean the law should be scrapped? I guess you would want to live in a society were selective laws are written and are judged on an ad-hoc basis.
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silverscarcat (profile), 9 Apr 2013 @ 12:16pm

Re: Re: Re: Re:
Any law that criminalizes common behavior should be outlawed.

Why do you think marijuana is now legal in some states?
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Anonymous Coward, 9 Apr 2013 @ 12:23pm

Re: Re:
Please, oh please, explain to me exactly how President Clinton may have violated the CFAA. Which section did he perhaps violate? Walk me through it step by step. I don't want to miss a thing.
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Anonymous Coward, 9 Apr 2013 @ 12:24pm

Re: Re: Re: Re: Re:
You're presupposing, as Mike did, that this behavior has been outlawed.
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Anonymous Coward, 9 Apr 2013 @ 12:35pm

Re: Re:
It's not that cut and dried. There needs to be intent to defraud. And since the only thing gained was the use of Twitter's computers, the value of that use must exceed $5000 for it to be a crime under the CFAA.
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DCX2, 9 Apr 2013 @ 12:38pm

Re: Re: Re: Re:
GoT cost millions of dollars to produce etc. And HBO has certainly spent a lot of money trying to stop people from accessing GoT without an HBO subscription.
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Anonymous Coward, 9 Apr 2013 @ 12:41pm

Re: Re: @AC
even thoguh you caleld me an idiot, you;re still wrong. qq.
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Anonymous Coward, 9 Apr 2013 @ 12:42pm

btw
Demand Progress, Orrin Kerr, EFF and others are participating in a reddit conversation regarding CFAA reform right now at:

http://www.reddit.com/r/IAmA/comments/1bzzgk/we_are_activists_and_academics_who_support_refor m/
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Anonymous Coward, 9 Apr 2013 @ 12:45pm

Re: Re: Re:
read the article. ;)
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Atkray (profile), 9 Apr 2013 @ 12:45pm

Re: Re: Re:
By being on stage with Colbert, Clinton was helping him.

Just like links and search engines help piracy.
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Machin Shin (profile), 9 Apr 2013 @ 12:50pm

Re:
"suggesting that President Clinton committed a criminal act. It's a new low for you, which is incredible."

Suggesting President Clinton HASN'T committed a criminal act requires such an amazing level of hiding under a rock that I'm beginning to wonder if you people haven't discovered some form of dimension hopping. Take a look at the USA criminal code, then find me a person who has not broken some law.
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Anonymous Coward, 9 Apr 2013 @ 12:57pm

Re: Re: Re: Re: Re:
And a subscription to HBO Go costs how much? Not $5K.

Swartz downloaded millions of articles that are sold for what, $20 - $40 each? Plus, the school spent thousands trying to stop him from continuing his unauthorized access.

It's just not comparable.

P.S. I threw the part in about the costs because Mike pretends like JSTOR has nothing of value and spends nothing to create their complex, valuable, and expensive database that some pay tens of thousands of dollars a year to access because it's so valuable.
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Anonymous Coward, 9 Apr 2013 @ 12:59pm

Re: Re:
How, exactly and precisely, did President Clinton perhaps violate the CFAA? Please explain it to me. I'm not talking about anything other than Mike's incredible claim here in this very article. Thought that was obvious, but clearly I was wrong.
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Anonymous Coward, 9 Apr 2013 @ 1:03pm

Re: Re: Re:
https://yourlogicalfallacyis.com/personal-incredulity
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Anonymous Coward, 9 Apr 2013 @ 1:13pm

Re: Re: Re: Re: Re: Re:
they are sold for 20-40$... this doesn't mean they are worth that. It's information, 1s and 0s, copiable ad infinitum with basically no cost to the publisher. The info's real worth is 0$.
Heck, they could price the thing at trillions of dollars if they want, that doesn;t make it worth trillions. If that;s the reaosn you think it was okay to go after Swartz... that's dumb.
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Rikuo (profile), 9 Apr 2013 @ 1:22pm

Re:
"Dear" AJ,

Fuck off. You're not welcome here.

Yours,
People who actually do debate and argue, rather than childish whining.
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80sRelic (profile), 9 Apr 2013 @ 1:25pm

Re: Re:
Twitter's TOS explicitly allows for "parody" accounts. You can create "@BJclinton" (BJ DOESN'T mean "Billy Jeff", BTW), declare yourself to not really be Prez #42 in your bio, then tweet an ad for "interns for my library", and be AOK as far as Twitter is concerned.
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Rikuo (profile), 9 Apr 2013 @ 1:25pm

Re: Re: Re: Re: Re: Re:
"Plus, the school spent thousands trying to stop him from continuing his unauthorized access."

Really? And where, other than your ass, did you pull this from? Swartz was in that cupboard for just a short while and from what I've heard, was only stopped via IP and MAC address blocking. He was arrested after only a short while. So how on earth could they have spent thousands of dollars blocking his intrusion? How could anyone, unless your IT security personnel are the best in the world who demand thousands per hour?
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silverscarcat (profile), 9 Apr 2013 @ 1:32pm

Re: Re: Re:
Show me a man and I can find three felonies they commit just by following them around all day.

In fact, most people commit at least 3 felonies a day.
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Lord Binky, 9 Apr 2013 @ 1:51pm

Isn't there a 'No harm, No Foul' section in the CFAA so as long as noone important finds anything wrong with it, while technically illegal, it is acceptable?

Or is that bad policy design?
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ChrisH, 9 Apr 2013 @ 2:05pm

Re: @AC
Violating a website's terms of service does not violate the CFAA. See United States v. Lori Drew.
http://en.wikipedia.org/wiki/United_States_v._Lori_Drew
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Anonymous Coward, 9 Apr 2013 @ 2:05pm

Re: Re: Re: Re: Re: Re: Re:
they are sold for 20-40$... this doesn't mean they are worth that. It's information, 1s and 0s, copiable ad infinitum with basically no cost to the publisher. The info's real worth is 0$.

That's what Mike wants to believe as well, but that's not value is calculated under the CFAA--which is all that matters here.
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Anonymous Coward, 9 Apr 2013 @ 2:06pm

Re: Re:
Dear Rikuo--

Thanks for adding nothing to the conversation.

Signed,

Nobody
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MonkeyFracasJr (profile), 9 Apr 2013 @ 2:08pm

Re: policy design
Do you really have to ask if it a bad design?
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silverscarcat (profile), 9 Apr 2013 @ 2:09pm

Re: Re: Re: Re: Re: Re:
It's illegal to buy minors permanent markers in California.

I'm pretty sure that it's illegal.

http://www.cracked.com/article_19450_6-laws-youve-broken-without-even-realizing-it.html
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Anonymous Coward, 9 Apr 2013 @ 2:10pm

Re: Re: @AC
My understanding is that there is not a consensus among the courts on that issue.
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silverscarcat (profile), 9 Apr 2013 @ 2:10pm

Re: Re: @AC
Wasn't Aaron Schwartz hit with the CFAA for that though?
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Anonymous Coward, 9 Apr 2013 @ 2:11pm

Re: Re: Re: Re:
I've committed no felonies today. Or yesterday. Or the day before. Not sure what this idiotic post is supposed to mean.
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Divide by Zero (profile), 9 Apr 2013 @ 2:23pm

Re: Re: Re:
He's added more than you ever do.
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Anonymous Coward, 9 Apr 2013 @ 2:28pm

Re: Re: Re: Re: Re:
It means that laws are so numerous and so ridiculous that even the most law-abiding person unknowingly commits an average of 3 felonies a day.
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JP Jones (profile), 9 Apr 2013 @ 2:31pm

AC, you may want to do some more homework:
http://en.wikipedia.org/wiki/International_Airport_Centers,_L.L.C._v._Citrin
http://en.w ikipedia.org/wiki/LVRC_Holdings_v._Brekka
http://en.wikipedia.org/wiki/United_States_v._Nosal

It is important to note that so far none of these individuals have been convicted of criminal charges under the CFAA, well, except Brekka, who was found guilty by jury but later overturned. These cases are likely to end up at SCOTUS level since two districts have found different interpretations of the CFAA.

The key point is that they were successfully charged under the CFAA. The result is irrelevant; the cases were still heard. District judges don't hear cases without merit; if it is obvious that a charge will be dismissed it's never brought to court, let alone given a guilty verdict.

When it's not clear whether or not a particular action is a violation of a law that is, by definition, vague. I seem to remember an issue or two with vague laws.

The ubiquitous "on a computer system"-style laws may have worked back in the 90s before computers were in virtually every household in the U.S. It's time to take a close look at those laws with a bit more technical knowledge and understanding, something that was clearly lacking when these laws were written.
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Anonymous, 9 Apr 2013 @ 2:44pm

Re: Re: Re: Re: Re:
Several reasons. First among them is human stupidity. There is also Hollywood brainwashing. Hollywood is run by those with definite agendas. Want to brainwash people into accepting your point of view? Do it through entertainment. Comedy works best. Make things like drugs and gay marriage look lighthearted and no big deal. Continual exposure to ideas through movies, TV, and music will make those ideas more acceptable.
Is it any coincidence that the states with the most liberal marijuana laws also seem to have the toughest gun laws? Could there be a move afoot to deprive people of guns and give 'em dope? What could be better to the government than a drug-addled (and disarmed) populace?
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Anonymous Coward, 9 Apr 2013 @ 3:08pm

Re: Re: Re: Re:
Oh so sharing one episode of game of thrones isn't worth 150,000$
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angelbar (profile), 9 Apr 2013 @ 3:08pm

Viacom its stupid....
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Anonymous Coward, 9 Apr 2013 @ 3:10pm

Re: Re: Re: Re: Re: Re: Re:
This is the guy that thinks you register your MAC address with your ISP. He probably thinks they physically built a wall of fire.
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angelbar (profile), 9 Apr 2013 @ 3:15pm

Re: Re: Re:
Here
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silverscarcat (profile), 9 Apr 2013 @ 3:21pm

Re: Re: Re: Re: Re: Re:
Considering over 1/2 of all Americans, including most of the politicians, have done pot or other drugs in their lives...

Even Obama and Clinton did pot when they were younger. And George W. Bush did other drugs when he was younger.

Just pointing it out.

"What could be better to the government than a drug-addled (and disarmed) populace?"

A populace that doesn't care what the government does because Survivor is on?
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silverscarcat (profile), 9 Apr 2013 @ 3:24pm

Re: Re: Re: Re: Re: Re: Re: Re:
And downloading a single .99 song is worth 150,000 dollars if you're accused of copyright violations.

Here's your problem.

https://yourlogicalfallacyis.com/appeal-to-authority
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Anonymous, 9 Apr 2013 @ 3:24pm

Re: Re: Re: Re: Re: Re: Re:
That first sentence explains a lot.
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silverscarcat (profile), 9 Apr 2013 @ 3:27pm

Re: Re: Re: Re: Re:
You've just committed one by posting. Have a nice day. ^_^
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Anonymous Coward, 9 Apr 2013 @ 3:54pm

Re: Re: Re: Re: Re:
And you want to be a lawyer.
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silverscarcat (profile), 9 Apr 2013 @ 4:00pm

Re: Re: Re: Re: Re: Re: Re: Re:
*Shrugs* Fact is, if people use pot, why not let them smoke it legally?

I honestly don't care. I barely drink alcohol.
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Anonymous Coward, 9 Apr 2013 @ 4:21pm

More evidence that the CFAA is silly and its supporters smell of elderberries.
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Anonymous Coward, 9 Apr 2013 @ 5:08pm

Apparently, the CFAA also includes forfeiture clauses. Just another long arm of bizarro Robin Hood.
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Anonymous Coward, 9 Apr 2013 @ 5:48pm

Re: Re: Re:
Well at least he debates instead of making pointless personal attacks, then again he's not in it for the ego.
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Anonymous Coward, 9 Apr 2013 @ 7:32pm

so CFAA and twitter "terms of service" are LAW Masnick..

wow you are desperate..

" While not all courts agree, the DOJ has argued that merely disobeying a website's terms of service means that you've violated the CFAA by accessing content either without authorization or by exceeding authorization. "

what 'content' was accessed by someone writing a tweet ???

Your a moron Mansick...
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Anonymous Coward, 9 Apr 2013 @ 7:55pm

Re:
Do try and keep up wont you?
Everyone else seems to be capable of doing so, what is your malfunction?
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Anonymous Coward, 10 Apr 2013 @ 12:03am

Re: Re: Re: Re: Re:
Large numbers of idiots harping on it. Just because it's common doesn't mean that it should be legal.
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JMT (profile), 10 Apr 2013 @ 12:52am

Re:
"WTF is wrong with you? Can you just not calm down and take a step back?"

This from the person posting the same idiotic schtick over and over and over and over and over and over and over...
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Anonymous Coward, 10 Apr 2013 @ 3:07am

Re:
so CFAA and twitter "terms of service" are LAW Masnick..

wow you are desperate..

He's getting more and more desperate as time goes on. It's awesomely hilarious. I love this place.
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Anonymous Coward, 10 Apr 2013 @ 4:43am

Re: Re:
Surely you are not that naive ... but then again I suppose it could be.
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Anonymous Coward, 10 Apr 2013 @ 4:45am

Re: Re: Re: Re: Re: Re:
"Hollywood is run by those with definite agendas."

Yes - communist agendas.
They are all communists.
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Anonymous Coward, 10 Apr 2013 @ 4:51am

Re: Re: Re: Re: Re:
"'ve committed no felonies today. Or yesterday. Or the day before."

That you know of.
What about all the secret laws, have you violated any of those? If not, how do you know this - because you probably lack legal access to said secret law verbiage and therefore you are guilty of obtaining classified information illegally - sent him to gitmo.
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Niall (profile), 10 Apr 2013 @ 5:35am

Re: Re: Re: Re: Re: Re: Re:
I take it you are redefining 'communist' according to Faux News and Conservapedia as 'someone I don't like who is to the right of Genghis Khan but still left of me'?

Hollywood may have a somewhat so-called 'liberal' bias in their film-making, but they are nowhere close to communist. Plus, their management system is far too capitalist-abusive to be even socialist, let alone communist. Where is the 'common good' of how they treat their artists or the public?
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ChrisH, 10 Apr 2013 @ 12:21pm

Re: Re: Re: @AC
Do you know of a conflicting decision?
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ChrisH, 10 Apr 2013 @ 12:22pm

Re: Re: Re: @AC
But he was never convicted.
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ChrisH, 10 Apr 2013 @ 12:25pm

Re: Re: Re: Re:
What the article doesn't say is how violating ToS violates the CFAA.
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ChrisH, 10 Apr 2013 @ 12:27pm

Re:
How about no courts agree. Who gives a crap what the DOJ argues. Since the courts don't agree with it, it means nothing.
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Anonymous Coward, 10 Apr 2013 @ 5:07pm

Re: Re: Re: Re: Re: Re: Re: Re:
McCarthyism is alive and well.
Hate mongering is such a popular pastime with the rightwing nutterz, it would be funny if they were not in positions of power and influence.
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Niall (profile), 11 Apr 2013 @ 1:01am

Re: Re: Re:
At least you finally admit who you are...
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Niall (profile), 11 Apr 2013 @ 1:04am

Re: Re: Re: Re: @AC
But he shouldn't have been charged with it unless it were actually likely. Why not throw in a hundred jaywalking charges while they're at it?
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Niall (profile), 11 Apr 2013 @ 1:10am

Re: Re:
Becausee the DOJ can still utterly ruin your life with piled-on 'fake' charges and escalating civil penalties into grand felonies. I'm sure most people would rather not have to go to court and would rather not be charged with 'felony interference with a government donor's business failure model' because they changed a lightbulb for themselves.
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btrussell (profile), 11 Apr 2013 @ 5:30am

Re:
Talk about a FUDgepacker!
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