I'll accept your argument as an upper bound on the issue. I don't agree fully with "breach of contract" in such cases, but it's less unreasonable than making it a criminal offense.
That's a great perspective. Breach of contract would be the upper bound.
I don't think ToS should be able to be enforced either because it is unreasonable in today's society to assume checking that box in a sign-up process is actually giving informed consent to the terms for the wast majority of people. But even if it was, worst case it's a breach of contract.
Exactly, that's also the most reasonable interpretation of the designation too. 'Terms of Service' literally -> the terms you need to agree with for us to provide you the service. No agreement or no adherence -> no service.
Yes, it's absurd - "terms of service" are not practically any different to the rules of any other establishment or service provider. Breaking the house rules is not breaking the law. It should get you kicked out, not arrested.
To be honest I think all of this stems largely from gross incompetence/ignorance among the people responsible for this sort of legislation.
Why would it not be okay to just ban people from your service "because you feel like it"? Given that you usually don't have any info on them which can be used as the basis of discrimination (and thereby sued over) what's left to worry about?
I would call that enforcement of a term of the service.
When I said arbitrary terms of service can't be enforced, I meant that the site owner won't have good luck trying to obligate users to do things (their typical response to a problem with the user will be limited to withholding access from the service). I wasn't very clear.
If you want a user to agree to something, you ask them if they agree to it and below that have two radio buttons labeled "Yes, I agree", or "No, I don't agree". Neither of them should be selected by default. You do this for every term you want them to agree to, not some general "Do you agree to these terms of service".
As long as you don't build this in a way that encourages people to mindlessly go through the list and click yes on all of them, I'd currently consider this, and nothing less, sufficient for informed consent.
I'd currently consider this, and nothing less, sufficient for informed consent.
You might, but it's doubtful that any court would.
For example, on a web site where you're taking real money in return for providing access to otherwise protected content, your terms and conditions would typically describe a contract, which the parties will enter into once you've offered those terms and your customer has accepted.
As such, the deal would be subject to the same safeguards as any other business-to-consumer contract. For example, here in the UK, there are some conditions that are automatically considered unfair and would not be enforceable, and for digital sales there is certain information you're required to provide at various stages in the purchase process or you risk the deal being challenged.
The flip side is that assuming your terms are reasonable and properly disclosed, they will normally be enforcible like any other B2C contract.
The argument that it is a crime comes down to arguments around what constitutes 'unauthorised access'.
As 'unauthorised access' to a computer system is a crime, if you make your definition of 'authorised' "access subject to our terms of use" : Huzzah! Violating your terms of use is now a crime!
This all comes back to laws written in wooly "the courts will work it out" language.
It's your own browser that interprets the header, saves the cookie, and passes it back to sites you visit. Passing a "here's a cookie" header to your machine doesn't, on its own, do anything. Your browser has to actively parse and store it.
By the same token, my sending an HTTP request to a server doesn't, on its own, do anything. Their server has to actively parse the request and send data.
The details are probably too complicated for an HN comment, but one point that sometimes gets missed is that you normally don't have the same disclosure/consent obligations for cookies that are essential to the normal operation of the site like login tokens or tracking what's in a shopping basket.
> surely violating Terms of Use is essentially a breach of contract
Is it though? Not a lawyer and my layman's intuition makes it hard to see a connection between ToS and contract.
Like, if I type `something.com` in my browser by accident and their ToS is "you owe us $400 for each TCP packet, kindly do provide goverment issued ID". So I have couple of questions:
- How is that different from ToS on Facebook?
- How marking a checkbox creates a contract between a person and entity owning a site, same way as my signature or providing personal info, address and money to Amazon in exchange for goods?
- And who that person would even be in FB case (anyone can put my name into a website from a public library computer)?
your argument is valid but your tone is missing the point PP made. To reword what he said "there is no way this is criminal law, this needs to be argued as perhaps contract law with 'breach of contract' as the upper limit if it rises to that level"
you proceeded to argue the case the way he said it should be argued, but by quoting PP and challenging, you seem to be arguing with him, when in fact you are agreeing with him.
if you edit your comment, I could even delete mine :)
It's true what they say. The justice system are defending our rights until we talk about digital media, software and the Internet, at which point they have a complete blind spot.
