What are terms of service? Remember the last time you signed up for a Web site and clicked through several pages of fine print? Yep, that was it. Chances are, you didn’t read it, and didn’t think that it might be a federal felony to violate the provisions that it contained. The Justice Department has repeatedly taken the position that such violations are felonies. In the prominent cyberbullying case Lori v. Drew, a federal prosecutor asserted that violating MySpace’s terms of service would be a federal felony. Similarly, the indictment threatening Aaron Swartz with thirty-five years in prison depended, in part, on a terms-of-service violation: when Swartz tried to download thousands of academic articles, he did so as an authorized guest user of the M.I.T. network. He didn’t actually “hack” or “break” into the network; he violated the terms of service for guests by downloading too much stuff.
The broadest provision, 17 U.S.C. §1030(a)(2)©, makes it a crime to “exceed authorized access, and thereby obtain… information from any protected computer.” To the Justice Department, “exceeding authorized access” includes violating terms of service, and “any protected computer” includes just about any Web site or computer. The resulting breadth of criminality is staggering. As Professor Kerr writes, it “potentially regulates every use of every computer in the United States and even many millions of computers abroad.” You don’t have to be a raving libertarian to think that might be a problem. Dating sites, to borrow an example from Judge Alex Kozinski, usually mandate that you tell the truth, making lying about your age and weight technically a crime. Or consider employer restrictions on computers that ban personal usage, like checking ESPN or online shopping. The Justice Department’s interpretation makes the American desk-worker a felon