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Should violating a TOS agreement be a federal crime?

By Scott Tibbs, September 22, 2011

Violating the Terms of Service agreement for a website can get your account deleted or restricted. But should the federal government be enforcing a TOS agreement between website owners and users? Should violations of those agreements be prosecuted as a federal crime with possible prison time?

The answer should be an immediate, obvious and uncompromising "no." However, the way federal law is written, prosecutors can go after people for violating a TOS agreement - and WebProNews reports that changes to that law are under consideration. Once again, politicians are passing laws to deal with a subject they do not understand.

I am not being an alarmist. There is precedent for the government prosecuting TOS violations as a federal crime, as was done with a sick and depraved woman who set up a fake MySpace profile to harass a teenage girl. She was convicted of computer hacking, but her conviction was thrown out in July of 2009.

Think about the free-speech implications of making it a federal crime to violate a website's TOS agreement. Last April, the Herald-Times announced that the word teabagger (or variations thereof) would no longer be permitted in comments or letters to the editor, and H-T editor Bob Zaltsberg made the utterly laughable claim that "we make every effort to remove comments from HeraldTimesOnline.com that use the term, and to edit it from letters sent by readers."

I copy-pasted the literal, word-for-word text of several articles published in the Herald-Times (including one written by one of the Herald-Times' official community columnists) that included variations of the word teabagger to demonstrate the dishonesty of Zaltsberg's claim. My comment was promptly deleted by HTO moderators.

Obviously, it's just silly (not to mention incredibly hypocritical) that quoting articles published in the newspaper would be a violation of the Terms of Service for the newspaper's website. But the overly broad interpretation of the prohibition against accessing a computer without authorization or exceeding authorized access of a computer would make my post not just a violation of the Terms of Service, but a federal crime that could send me to prison.

Now, realistically, am I going to go to prison because HTO policy is completely hypocritical? No. But it is easy to see where corrupt prosecutors can abuse the law to harass political opponents and blackmail them into silence. This has serious and frightening implications for free speech and the free exchange of ideas.

Fixing this problem is easy. All the law needs to do is clarify that violating a website's Terms of Service agreement does not constitute computer hacking, which is what the law is actually intended to criminalize. Violations of Terms of Service agreements should be dealt with between the interactive content provider and the individual breaking the policy, not between the person who broke the policy and a federal prosecutor.