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Researching something I stumbled over the following Terms of service for a website:

Notwithstanding any other part of these Terms of Service, and notwithstanding any other express or implied grant of permission, the following persons/entities are expressly forbidden from using, accessing, or obtaining any information from [the site] for any reason:

Federal and state law enforcement agencies operating within or under the authority of the states of New Jersey, New York, Connecticut, Pennsylvania, and Washington. Agents of the offices of the Attorneys General of New Jersey, New York, Connecticut, Pennsylvania and Washington. Agents of the offices of Consumer Affairs or Consumer Protection in the states of New Jersey, New York, Connecticut, Pennsylvania, and Washington.

Is such a Term of "non service" legal and hold any water? The website claims that the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (the “CFAA”) would give their blanket ban force.

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    If they're relying on 18 USC 1030 then they obviously didn't read paragraph (f): "This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States." Jan 17 '21 at 3:50
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    What is the term meant to accomplish? If it's meant to deny permission for those agencies to use the service for administrative purposes, it might accomplish that. If it's meant to prevent them from accessing the service to investigate possible illegal use of it, then surely not. Jan 17 '21 at 3:52
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    These “notices” have been around since the dark ages of the internet - illicit BBSes used to have these notices back in the 80s... Hell, at one point, the Pirate Bay had a similar notice. All useless because you cant forbid law enforcement from investigating.
    – user28517
    Jan 17 '21 at 5:45
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    @NateEldredge can public-accomodation establishments explicitly forbid access to law enforcement who do not have a warrant? I asked a somewhat-related question recently and it didn't get much traction. I asked if the discriminatory pricing, based on profession, is allowed. But a site can just as easily put in its terms that anyone who is a law-enforcement officer agrees to some additional (exorbitant) fees if they use the service.
    – grovkin
    Jan 17 '21 at 7:44
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One way in which it holds legal water is that if you use the website in violation of the terms, then you may forfeit your right to take civil action against the company. Analogous language especially regarding the age of the user may protect the site against actions by third party governmental entities (COPPA-like laws), though nothing patently obvious springs to mind (insofar as this deals with firearms and there is also an age 21 restriction both on the web site and in terms of US firearms law, this is not a totally crazy idea).

The citation of 18 USC 1030 non-probatively points to an issue which may be disposed of by SCOTUS in US v. van Buren, that knowingly violating the terms of service is a crime (a proposition rejected by lower courts, see US v. Valle). Facebook v. Power Ventures in particular clarifies how "being put on notice" may make such unauthorized access indeed "unauthorized access" in the statutorily-relevant sense. This does not prevent a legally-authorized law enforcement investigation, pursuant to para (f), but if the "violation of TOS = unauthorized access" theory is upheld, it limits how LEOs can legally access the website (and the limitations extend past LEOs). It is a separate and potentially interesting question whether there actually are any legal limits on the investigative powers of the government – if any law enforcement officer has the liberty to investigate anyone they want, with no supervision or requirement of justification, then this would be a rather gaping loophole in their legal strategy.

Web pages involve massive copying of copyright-protected data, and the function of terms of use is in part to conditionally grant access to that copyright-protected content. When a person copies protected material from someone's web page having been explicitly denied permission to copy, they run the risk of an infringement lawsuit.

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    Yeah, but suing the Gov't for copyright infringement for e.g. copying material into evidence for a lawsuit never really worked, did it?
    – Fizz
    Jan 17 '21 at 6:54
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    i don't recall, but doesn't the copyright law explicitly allow copying for the purposes of law-enforcement investigations? Police routinely duplicate contents of mobile devices even though most mobile devices contain copyrighted music licensed to be played on those devices, but not licensed for copying.
    – grovkin
    Jan 17 '21 at 6:58
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    Again, being a LEO is not the same as engaging in official law-force investigation. Police routinely do many things in the course of their official duties.
    – user6726
    Jan 17 '21 at 16:22
  • @user6726 why "again"? This question seems to be exclusively about the conduct of law-enforcement officers during their official duties. And the last paragraph (the one that mentions copyright) doesn't make any distinction between official conduct and private conduct. So it is reasonable for a reader to assume that it is addressing the question as it has been asked.
    – grovkin
    Jan 17 '21 at 16:34
  • @grovkin I don't see any explicit exceptions nor other provisions in the law relating to copying done for a law enforcement investigation nor for any other law enforcement purpose.
    – phoog
    Jan 19 '21 at 4:38

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