Mere Violations of Consumer Site Terms of Service Aren't Crimes

So says a federal district court, citing three articles by our own Orin Kerr.

|The Volokh Conspiracy |

From an opinion Friday by Judge John D. Bates (D.D.C.) in Sandvig v. Barr:

Plaintiffs are academic researchers who intend to test whether employment websites discriminate based on race and gender. In order to do so, they plan to provide false information to target websites, in violation of these websites' terms of service. Plaintiffs bring a pre-enforcement challenge, alleging that the Computer Fraud and Abuse Act, as applied to their intended conduct of violating websites' terms of service, chills their First Amendment right to free speech.

Without reaching this constitutional question, the Court concludes that the CFAA does not criminalize mere terms-of-service violations on consumer websites and, thus, that plaintiffs' proposed research plans are not criminal under the CFAA….

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  1. Wow — a court actually gets something right the first time.

    Now if they hadn’t had a politically correct agenda, I have to wonder if the outcome had been different. If, for example, this had been the local Klan Chapter seeking to document discrimination against White males, would the decision have been the same?

    I like to think so, but I doubt it….

  2. “The Court will therefore deny the parties’ cross-motions for summary judgment and dismiss the case as moot.”

    Shouldn’t they issue a declaratory judgement? If the case is moot, they don’t have jurisdiction to decide the substantive issue.

  3. Haven’t some courts taken the opposite view?

    1. Yes, the opinion canvasses the various positions that various courts have taken, but I think claims to be in the majority ….

      1. This interpretation seems quite narrow.

        The view seems to be that thus proposed use is ok, but seems to leave open other more controversial uses, for example automated access of functions or gathering of information provided to the general public.

        The opinion also does not appear to address what actions the website owners might take, for example if the research purports to show bias in the way the websites handle information the receive from users.

  4. OK not a criminal act but could it be a civil violation?

    They’re submitting falsified employment applications with no intent to actually accept employment.

    The companies obviously don’t know this and have to expend recruitment/HR assets to vet the applications.

    That is a real (i.e. dollars) cost – which is lost.

    1. Even worse the research could conclude that some employers are biased, leading to discrimanation claims by third parties. I can imagine someone seeking the raw data the researchers gather to build such a case against specific employers.

    2. It could be a civil violation but the company would have to show damages to prevail. Notably, damages to the corporate users of the recruiting website don’t count because it’s not their terms of service. The recruiting website (think monster.com) would have to be the ones showing damages. That would be near impossible, I think.

      1. Over the long-term, if users of the service offered lose confidence in the accuracy of the data they’re being provided, they’re going to become ex-users. I think there are damages there, it’s just a matter of getting them documented.

  5. Not the same, but similar to the academics who investigated grievance journals by submitting and getting published reviewed articles of gibberish.

    As a result, the perpetrators were sanctioned as having “experimented on people”, the people in question being the morons who reviewed the articles.

  6. Wasn’t there a criminal conviction on this issue? I forget the details, but it was a woman who via Facebook induced the suicide of another person. She was convicted for violating FB’s terms of service.

    1. Lori Drew. Prof. Kerr helped represent her. She was originally convicted but it was tossed.

      1. Yes, thanks for the name.

        I’m also reminded of the famous case of Aaron Swartz. He too was threatened under the CFAA, but alas he didn’t live to stand trial.

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