Recently the EFF filed an amicus brief urging a Federal Judge to overturn the indictment charges against the operators of Wiseguys Tickets, Inc., a ticket re-selling service. The four defendants are being charged with purchasing tickets from Ticketmaster by automated means. Such action violated Ticketmaster’s terms of service, and thus, the Computer Fraud and Abuse Act (CFAA). In the brief, the EFF argues that prosecution is broadening the scope of the CFAA, giving websites the ability to create unreasonable terms of service and to impose criminal liability onto its users. It also appears as it the prosecution is limiting the access to information and online services without having the necessary and compelling government interest to do so.
If the prosecution is to prevail then users can be held criminally liable for not following all arbitrary terms of services that websites decide to impose upon them. An online service website can impose unfair requirements in their terms of services, as did Ticketmaster, in order to limit the success of their competitors. Such a tactic hinders the free market and will result in a lack of media advancement. The prosecution claims this is about consumers’ free access to media tickets, however, it seems that quite the opposite is the case. The charge against the defendants is a hindrance to free access.
The Computer Fraud and Abuse Act is a law passed by the United States Congress in 1986 intended to reduce the hacking of computer systems and to address federal computer-related offenses. The CFAA governs cases with a compelling federal interest, where computers of the federal government or certain financial institutions are involved. It also governs computers used in interstate and foreign commerce. Under the CFAA, criminal offenses are typically accessing a computer without authorization in order to obtain national security data or information from a department or agency of the US. Some other punishable actions include offenses such as accessing a protected computer with the intent to defraud or traffic unauthorized information. How exactly the case at hand applies to this Act is unclear. It certainly seems the government is broadening the scope of the Act in order to crack down on terms of service violators. However, such a stance is bound to limit future innovation among online services and will intimidate users from seeking all available resources. The CFAA is meant to prevent trespass and theft, not meant to hinder innovation.
The possible implication of a guilty finding is that anyone who ignores or doesn’t read a website’s terms of service could be held liable for computer criminal conduct according to the reasoning of the government. If the prosecution is to be successful then it seems an unacceptable power dynamic among the online service and the user will be created. Ticketmaster and other online services will have the tremendous power over its users to decide what is criminal conduct and what isn’t.