5

It does not seem to be clear what the difference is, because of the language of the CFAA. Which of these can be categorized in each of the categories above (in increasing order of severity)?

  • Using a fake name/birthday which does not impact eligibility to use the site (like if I use the name John Doe on Facebook)
  • Using a fake name/birthday which would impact eligibility to use the site (like if I was 12, but wanted to use Facebook)
  • Creating multiple accounts with a site that does not allow for this to impose usage limitations.
  • Using multiple free trials without providing inaccurate information.
  • Using multiple free trials by providing inaccurate information.
  • Using an ad blocker.
  • Making a profit without buying the "commercial" version of a software (e.g. Unity or Oracle).

These are some examples, but there are many more cases. Note that in most cases, a website owner would probably not sue (they could sue for anything, but it would not be worth it in most cases).

I did get an answer at Is inappropriate use of a website solely a civil matter, or will it extend to criminal matters as well?, but it suggests that such actions are in a legal gray area due to the vagueness of the CFAA.

I got another answer at What distinguishes civil offenses from theft of services?, which is somewhat helpful, but I would still like more information.

1
  • 1
    The CFAA is in a somewhat unsettled state right now as people work out the implications of Van Buren v. United States. That case held that in general it's not a crime to breach a ToS, but it left open the question of whether it could ever be a crime (or whether the crime requires getting around some technical restriction like guessing a password or exploiting an SQL injection).
    – cpast
    Jun 18 at 20:11
5
+50

Each case is decided on its own facts

I know you want a clear answer to where the bright line between illegality and legality but there simply isn’t one. The reason you feel there is a “legal grey area” is because there’s a legal gray area.

The way the common law works is that there are some acts and omissions that are clearly crimes/torts/breach of contract, some that aren’t and some that live in that grey area. When someone brings a case in the grey, the court will make a ruling that will apply to similar facts and we get a little light on the subject. Then the legislature changes the law and it all goes dark again.

Each of your bullet points is simply too vague and encompasses so many fact patterns that it’s impossible to say. For example, “Using a fake name/birthday”:

  • do the ToS prohibit this?
  • is there an intent to mislead or deceive?
  • are there laws that prohibit this?
  • is a benefit being received dishonesty?
  • etc.

If you come with a specific, detailed fact pattern there might be case law that is specifically relevant that will allow an answer with a high chance of being right. However, nuances matter and no two fact patterns are exactly the same and the difference might be enough to distinguish your case from the precedent.

Or there might not be a relevant precedent because no one has sued/prosecuted on this fact pattern before. Then we are in virgin territory and even experts are only making educated guesses until the judge (and the appeals court(s)) hand down their decision. These are the most interesting cases to watch but the most terrifying to be part of.

If you need to ask the question”where’s the legal line on this?”, there’s a decent chance you have a foot on each side.

0

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.