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Disregarding website terms of use—a crime?

ColoradoBiz Staff //April 20, 2010//

Disregarding website terms of use—a crime?

ColoradoBiz Staff //April 20, 2010//

“Who[m]ever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer used in interstate commerce shall be subject to punishment of a fine or imprisonment.”

— Federal Computer Fraud and Abuse Act

Most of the information used in commerce today comes from, passes through or is collected on the Internet – often with the assumption that the use or collection of the information is permitted.

For example, consider the many ways that information is used from Amazon.com: retailers and search engines like Froogle use Amazon’s information for price comparisons, affiliates may scrape Amazon pages for promotional purposes, and private sellers often use Amazon images on websites like eBay or Craigslist to depict products they are trying to sell.

In all of these cases, it’s likely that the user knows that most websites impose terms and conditions, either in a “browse-wrap” or “click-wrap” format, that are legally enforceable in most jurisdictions. Often, however, these terms of conditions are ignored by users, who assume that only obviously illegal commercial activities, such as spamming, phishing or spoofing are prohibited. Users often do not realize that the terms of use also prohibit them from using the website for any commercial purposes, whether legal or not.

For example, many terms of use contain express prohibitions on activities such as:

• Commercially exploiting the site or its content in any way, including duplicating, publishing, selling, rebranding, framing, linking, licensing, using or otherwise transferring the site or any content;
• Utilizing any data available at the site, including user reviews or comments, to provide any competitive product or service;
• Adapting, modifying or creating works based on the materials or content of the site;
• Using manual or automated software, devices, scripts, robots, or other means or processes to access, “scrape,” “crawl” or “spider” any web pages contained in the site;

Despite such prohibitions, companies frequently breach the terms of use in many different ways, such as offering products that aggregate the data from popular sites, trawling social networking sites to find new leads or push brand-friendly messages, or even skimming competitor web sites for new product ideas or content.

Such activities are typically prohibited by the terms and conditions and constitute a breach of contract. However, the more interesting question is whether such activity is also illegal. For example, the Federal Computer Fraud and Abuse Act (“CFAA”) and similar state statutes, may make some of these activities a criminal act.

In United States of America v. Lori Drew, the U.S. District Court for the Central District of California looked at whether a violation of MySpace.com’s terms of use would violate the CFAA and determined that given the specific facts before it, extending the CFAA so broadly would make the law unenforceable under the void-for-vagueness doctrine. In other words, CFAA could not be applied to this particular terms of use violation.

The Drew case, however, involved the emotionally charged issue of cyber-bullying of a minor by an adult to the point that the minor committed suicide. Faced with a more focused, commercial use of a website by a competitor, other courts may very well conclude differently. In addition, Drew was decided prior to the enactment of the Federal Trade Commission’s new “Blogger Rules” which make certain online commercial activities, such as “astro-turfing” or pushing anonymous commercial messages out on blogs, illegal. Under the new rules, misuse of a competitors website, such as pushing out brand-friendly messaging via social media websites, may create its own claims and liabilities.

Given the burden on both the criminal justice system and the FTC’s resources, prosecution will likely be reserved for the most egregious violations of such policies. Consideration should still be given, however, to the effect that being barred from accessing a target site will have to your business, and how the business would be able to respond to assertions of civil liability related to using the site other than for its permissible use.

Even a spurious criminal claim may provide a devastating interruption to a time or image sensitive project; particularly if the interruption is visible, such as Facebook shutting down your brand’s fan page. Therefore, any company hoping to use third party websites as a communications channel, a promotions vehicle or as a source of business intelligence should always include a periodic review of the pertinent user agreements in its ongoing web strategy.

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