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What is the legality of "Ban Evasions"? This sounds like a dumb question but perhaps enlighten the ignorant.

Ban Evasion, "The creation of a new account on a platform or website after being previously banned for ToS violations".

In 2018, the 9th Circuit court of appeals ruled that violating the ToS isn't a crime, but does that still cover Ban Evasion?

An example would be, say, Jody had an account with a very popular video sharing platform, he broke the rules and had his account suspended permanently. He learns from those mistakes (because we all make mistakes in our lives), and recreate a brand new account, despite it being written in the ToS that you cannot make a brand new account. He does so regardless, makes a new account, but then gets banned again for Ban Evasion, despite not violating any other rules, Would this be considered a criminal offense?

Big companies (or companies in general) will most likely not care, because it's not worth the legal fees to pursue such a case, and it's better off making it harder to ban evade, or write better rules, but regardless, Did Jody commit a crime, whether on state level, or federal level? (In the United States at least).

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    Problem is at the "start" - usually you don't get banned right away, almost all services I heart of, use some form of 3 strike policy, granting you the first offense for "not knowing" - the second for "mistakes" - and on the 3rd offense you get banned or at least suspended for a time... Which proves already that Jody did NOT learn, so your premise is wrong. – eagle275 Jan 20 at 13:17
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    Can you clarify why believe this would be a criminal offence? – VLAZ Jan 20 at 13:33
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    @eagle275 Learning can happen at any time. It is not dependent on the number of mistakes (note: I interpret the OP to mean learning as in from the error of your ways, as opposed to learning that the action was against the rules) – JBentley Jan 20 at 13:48
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    I'm not sure the tag of criminal law would fit this question. It seems more of a civil matter between company and the user. – User37849012643 Jan 20 at 15:34
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    @User37849012643 It's not about specifically the company and the user, but more like what legal options the company has to retaliate against the user, using the CFAA, if the company has any legal options besides just ban him again and implement better moderation options. – nolsen Jan 20 at 21:18
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In theory, such an action could be considered a violation of the Computer Fraud and Abuse Act, specifically 18 USC 1030 (a)(2)(C):

Whoever...intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains... information from any protected computer;

Where the relevant "protected computer" definition is in the same section under (e)(2)(B):

As used in this section...the term “protected computer” means a computer...which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;

Every computer connected to the Internet is used in interstate and foreign communication.

One could imagine a situation where a prosecutor might use this particular quirk of the CFAA, for example if Jody was evading bans in order to harass someone and the prosecutor wanted to throw the book at her, but I'd guess most prosecutors would not pick up such a case if Jody's ban evasion didn't cause any damage.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Pat W. Jan 22 at 14:37
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    Interestingly, this does not apply to the act of making a second account, but to making it seem that the second account is run by a different person. The two often go hand in hand because otherwise enforcing of the rules would be manageable enough for the site staff... – Jasper Jan 22 at 17:34
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As IllusiveBrian pointed out, this would only be a criminal matter by really stretching the definition of computer fraud and abuse to its limits.

But it might also be worth looking at the situation as a civil lawsuit. The user who accepted the terms of service and then violates them by creating a new account despite being forbidden from doing so according to the ToS (do they actually do that, though?) is in violation of a contract and acting in bad faith.

But the problem with civil lawsuits is that the plaintiff has to prove what damages the defendant caused to them / their business and put a price tag on that. One thing the plaintiff could try is to claim that the defendant did hurt their business by driving away other customers, causing a cost for moderation effort, putting an undue duty on them to fulfill legal obligations, etc.. and calculate a claim value from that. And then they have to convince the court that this number is a realistic estimate of the damages they suffered from the actions of the defendant and that the defendant is liable for those damages. Will that work? That depends on the court.

  • This is answering a question which hasn't been asked. If you believe a different question would be worth considering, you should probably ask it then. – grovkin Jan 20 at 17:58
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    The fact that this would only be a criminal matter by really stretching the definition of computer fraud and abuse to its limits is little consolation because the definition is being stretched to these limits and people have been convicted according to that. In particular, there's an ongoing case in Supreme Court appealing that these limits are too stretched (see eff.org/deeplinks/2020/01/…) but it's not certain in which direction the case will go; it might result in affirmation that it is a crime. – Peteris Jan 20 at 19:07
  • "Do they actually do that, though?" Yes actually, For example, Youtube and Twitter states that you cannot create new accounts once you are banned, I'd imagine other services by Google would have similar rules since Youtube is owned by Google, but don't quote me on that last one. – nolsen Jan 20 at 21:06
  • @nolsen What happens if you already have more than one account? :) That might seem like jest but that technically would not be creating a new account and unless they banned all accounts you wouldn't be creating a new account. – Pryftan Jan 22 at 0:39
  • @nolsen they can say whatever they want, it doesn't make it law. I've found many contracts in the past with clauses that were blatantly illegal, or otherwise unenforcible. And if on the one hand they claim that each account is separate (which most sites/companies do) and on the other claim that creating another account once one is banned is not allowed, they're contradicting themselves. And indeed, what if I have 2 accounts already, that are supposedly independent of each other according to the TOS, and one gets banned, what about the other? – jwenting Jan 22 at 8:22
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Violating terms of a contract is not a criminal act.

Criminal acts require violating a statute aka a law - but not just any law, the Criminal Code, which is one law book out of about twenty.

The vast majority of law books talk about fire exits, wheelchair access, car registration fees, stuff like that.

So to commit a crime, you must violate something in one law book, and the only people who can put laws there are the Legislature and it must be signed by the governor.

Contracts are between two people, e.g. Between the internet company and you. They're not the Legislature and they can't make something a crime. If the things in the contract are too unreasonable, courts will throw them out, so they can't take your first born son, for instance.

A prosecution would be fruitless, even with CAFA

Further, in a criminal prosecution, the court and the jury both take a hard look at whether the actions really fit the crime and really warrant jail. Your case does not involve "hacking" or surreptitiously getting access users aren't entitled to; it simply involves behaving like normal users (albeit rudely) and creating new accounts after an account ban. Yes, there's a law that could be twisted beyond recognition, the Computer Fraud and Abuse Act, specifically 18 USC 1030 (a)(2)(C). It is for hacking, and that is plain.

  • No prosecutor would ever charge that crime for your type of TOS violation.
  • If one did, the judge would toss it out in a heartbeat. (Defense would move for summary dismissal and would get it).
  • and if the judge insanely did allow the case to continue, the jury would nullify. Which is why the judge would not.

The only jail would be served by the prosecutor and possibly the company's attorneys, for contempt of court: wasting the court's time with such a ludicrous case. Contempt of court allows a judge to summarily throw someone in jail, without proof beyond reasonable doubt, jury, etc. We'll come back to that.

The reasonable alternative... And the one path to jail

What would the rationale be? Very simple. Even if the conduct were so outrageous as to enrage people into desiring a criminal consequence, the simple fact is that this can already be accomplished with civil consequence: the restraining order. The judge would tell them to take it across the street to the civil courts. And the judge would mean for the company to do that, since the D.A. Has no standing to get a restraining order to stop logging into a web site.

The restraining order would be swiftly granted, after a review of the TOS and miscreant's conduct.

Now, finally. If the miscreant violates the restraining order, then that is contempt of court, and the judge can summarily throw the miscreant in jail with nothing more than a hearing.

But mind you, a US civil contempt jailing isn't a crime, you have no 4th Amendment rights, it doesn't go on your criminal record, there's no parole or probation, it doesn't affect your gun rights, and you still tick "no" when asked about criminal convictions. It's "just" a sanction - just like being told to pay lawyer fees for the other side.

  • never say never. Enough cases get weird jury decisions because of "careful" jury selection, basically all but ensuring that a specific verdict is reached by selecting jurors with know bias towards or against the defendant. – jwenting Jan 22 at 8:24
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    "Not for any crime, but for contempt of court." -> Last time I looked it up, contempt of court was a crime. – Alexander Jan 22 at 11:01
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    "No prosecutor would ever charge that crime for your type of TOS violation." and "If one did, the judge would toss it out in a heartbeat." - are you so sure? Here's one conviction leagle.com/decision/infco20101227030 with 12 months of jail under CFAA for using valid credentials issued by employer but violating the employer's policies of which data you're not supposed to look at with these credentials. And it's not the only one. – Peteris Jan 22 at 12:36
  • @Peteris you have to actually read the facts of the case, though. That one isn't on-point to OP, because it involves SSA staff accessing highly sensitive PII, and causing SSA itself to violate privacy laws - that and blatant stalking for personal gain ((using ex-parte knowledge of wife's income to argue against alimony etc.) You have to read the facts of the case. For instance the McDonalds spilled coffee case becomes a whole new ballgame when you actually read it. – Harper - Reinstate Monica Jan 22 at 18:53
  • @Alexander I took that phrase to mean "not [just] any crime, but [only] for contempt of court" – TylerH Jan 22 at 20:17
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As stated above, this does (loosely) fall under CFAA law so would be considered against the law.

I guess a loophole would be to have multiple accounts on any website that states you cannot create "new" accounts once banned. This is obviously presuming only the one account was banned. You could then freely use one of the other accounts as you have not violated the terms as no "new" accounts have been created and therefore no law has been broken (as far as I am aware, although USING the site once being told not to may cause other issues)

  • Any vaguely competent person would prevent that loophole by saying you can't continue accessing the site using another account after being banned or they would disallow having multiple accounts at the same time. – NotThatGuy Jan 21 at 15:38
  • @NotThatGuy Nevertheless you'd be surprised just how incompetent people can be and just how many loopholes laws tend to have. Plus you have connexions, you have influence, you have money, you have other such things. Many people are very naïve and this is one thing I thought of immediately too - if as a commentator says it's new accounts then having previous accounts wouldn't count as new. Even if it was covered there tend to be ways to manipulate/twist words/logic - and it's dead easy too generally speaking. – Pryftan Jan 22 at 0:42
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Given most websites only register nicknames and records declared identity based on faith: I just question who's banned?

Is it the nickname that is banned?

Is i the IP address that is banned?

How would website prove that it is same person registering a new account?

Video platforms and most websites don't even check that the person or action of clicking Terms Of Service agreement is performed by someone who is entitled to do so.

Could be under-age child.

Could be the cat walking on the keyboard.

It is very unclear who or what has been banned. It is not even sure that the ban decision has been performed or even reviewed or approved by a human with legal entitlement to do so. Most such services just use algorithms and very occasionally perform any human review by sub-contractors in countries with different Law. I doubt some contractor in India is legally entitled to act by say US State or Federal laws for a company that can not even prove the account they ban or deny pertains to a citizen of the US that is of legal age to accept agreements.

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