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Site Says 'Go Away!'; Federal Court Says No 546

CaptainEbo writes "Michael Snow was the webmaster of Stop Corporate Extortion, a private support group website for 'individuals who have been, are being, or will be sued by any Corporate entity.' In order to access his site, users were required to register a username and password, and agree to a statement saying they were not associated with DirecTV, Inc. Several defendants in suits brought by DirecTV would discuss their cases on Snow's site. When DirecTV's employees and lawyers ignored Snow's user agreement and accessed his site anyway, Snow sued, claiming they violated the Stored Communications Act (SCA) by accessing his site without authorization. In an unanimous opinion, the Eleventh Circuit rejected Snow's suit."
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Site Says 'Go Away!'; Federal Court Says No

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  • ohhh ... EULA (Score:5, Insightful)

    by karearea ( 234997 ) on Friday June 02, 2006 @12:43AM (#15451402)
    Where does this leave things like EULAs?
    • Re:ohhh ... EULA (Score:3, Insightful)

      by rodgster ( 671476 ) *
      EULAs?????

      It would appear they aren't worth the electrons required to display them.
      • by trezor ( 555230 ) on Friday June 02, 2006 @06:02AM (#15452347) Homepage

        This was a private person working against corporations, and it was shot down. When the corporations with their army of lawyers and legal fud wants to persuit this against people, expect it to be fully enforcable. They will have no problems what so ever.

        Ok, so I don't know that, but I'm pretty sure that's how it will turn out.

        • by walt-sjc ( 145127 ) on Friday June 02, 2006 @09:09AM (#15453084)
          It comes down to money. The private individual in most cases (I would bet at least 99.99%) does not have enough money to properly defend himself against the corporation (or mount an attack for that matter, as we saw in this case.) Your home-town lawyer is NOTHING against the billion dollar law firms large corps. use (not to mention their in-house legal staff.)

          We probably need laws that allow for X times damages and expenses when an individual or company has X times the financial / legal resources of the opponent and loses. It would encourage much more pro-bono activity and more corporate responsibility. Not even 100% of the "extra" penalty needs to go to the winner - some could be used to offset the court costs / infrastructure that we taxpayers pay for.
    • Re:ohhh ... EULA (Score:5, Informative)

      by CaptainEbo ( 781461 ) on Friday June 02, 2006 @12:47AM (#15451419)
      Karearea~ A commenter on the linked to site left this remark about EULAs, which I believe is a correct statement of the law:
      EULAs and the like are governed by contract law, which is a completely different ballgame than the SCA. Under contract law, an agreement is valid if one party offers something to another, the offer is accepted, and both parties agree to give something up. In the context of a EULA, the text of the EULA is the offer, clicking on "I Agree" is the acceptance. That means that so long as the last requirement (both parties give something up) is met, that click-through agreements are valid for EULA purposes.
      In short, this case only dealt with the meaning of a particular statute (the SCA). EULAs rely on contract law, which are a totally different area of the law. This decision should not effect EULAs.
      • Re:ohhh ... EULA (Score:3, Insightful)

        by EonBlueTooL ( 974478 )
        Doesn't a website owner give up space on their server and usage of their bandwidth?
    • Re:ohhh ... EULA (Score:5, Insightful)

      by MamiyaOtaru ( 517187 ) on Friday June 02, 2006 @12:47AM (#15451420) Homepage
      More importantly, where does it leave warez sites that only let you in if you agree not to be a law enforcement officer?
    • Exactly! I was just going to comment on that.

      Doesn't this strike a serious blow to the validity of "click to accept" EULAs?
    • by Nick Driver ( 238034 ) on Friday June 02, 2006 @12:55AM (#15451458)
      Where does this leave things like EULAs?
       
      ... that is, if you are a big powerful rich corp, then the courts will happily uphold your EULA but if you are a small-time nobody, then your EULA doesn't mean jack squat and the courts will trod all over it. Nothing has changed.

      And no, I'm not intentionally being cynical... I'm just simply being observant of the way things really work.
    • Re:ohhh ... EULA (Score:5, Interesting)

      by Vengie ( 533896 ) on Friday June 02, 2006 @01:38AM (#15451607)
      This changes absolutely nothing. This has nothing to do with contracts, but "public" vs "private." Basically, in order for something NOT to be considered "public" you must have meaningful screening. Consider a "private club" that allows anyone to join -- it is no longer a private club according to the LEGAL definition of such. Step-Saver, Gateway and the traditional e-Commerce contracts cases (Box-top and clickwrap EULAs) are completely untouched by this.
      • Re:ohhh ... EULA (Score:4, Insightful)

        by paeanblack ( 191171 ) on Friday June 02, 2006 @04:07AM (#15452044)
        This changes absolutely nothing. This has nothing to do with contracts, but "public" vs "private." Basically, in order for something NOT to be considered "public" you must have meaningful screening.

        In other words:
        If you give unrestricted, unscreened access to 99.99999% of the public, you can't discriminate against the remaining 0.00001%.

        It's a pretty sensible ruling. Anything that is "Open to the Public" has to play by different rules.
    • I Agree.
  • by Zork the Almighty ( 599344 ) on Friday June 02, 2006 @12:49AM (#15451430) Journal
    It seems more and more like we have a double standard when it comes to "computer trespass" laws. People can be threatened with prosecution for downloading files which a company mistakenly posts on a public webserver, yet when it comes to a citizen and their own personal site they have no mechanism to keep people out.
    • by Anonymous Coward on Friday June 02, 2006 @01:01AM (#15451481)
      This isn't a double standard by any means. It's what many call the "American standard".

      This man's first offense was not being a corporation. His second was daring to question the actions of corporations.

      The standards are quite clearly set. Individuals are not allowed to take a stance against corporations or their actions. Corporate greed trumps all. It's very evident how the system works.

      • by Anonymous Coward on Friday June 02, 2006 @01:09AM (#15451509)
        Exactly. If you doubt what the parent says, or think he's just being cynical, try distributing the Sony rootkit yourself and see what happens to you.
      • This isn't a double standard by any means. It's what many call the "American standard".

        Apropos, American Standard is also a popular brand of toilet. So no matter which you're talking about, it's all shit.

        Thank you, here all week, tip your waitress, try the veal, etc.

    • But think about it, now there's a precedent you can use (at least in that jurisdiction). In the end, it might be a good thing (think what the precedent would be otherwise).
    • by DerekLyons ( 302214 ) <fairwater.gmail@com> on Friday June 02, 2006 @01:22AM (#15451563) Homepage
      It seems more and more like we have a double standard when it comes to "computer trespass" laws. People can be threatened with prosecution for downloading files which a company mistakenly posts on a public webserver, yet when it comes to a citizen and their own personal site they have no mechanism to keep people out.
      Yes - they do. If you read the TFA, the Court's rejection of Snow's suit is based on the fact that he took no effective measures to keep people out. It did not say in any form or fashion that you could not erect such effective barriers as you desire - only that 'self screening' (having a user click the 'I agree' button) does not constitute an effective barrier. This makes sense on the face of it, because there is no screening or locking mechanisms - the forums in question are freely available to any random member of the public, hence they are (legally) not effectively different from the front page of Slashdot.
      • by hyfe ( 641811 ) on Friday June 02, 2006 @01:52AM (#15451645)
        From linked blog:
        In order to access Snow's site, a user was required to register a username and password, and to agree to a statement affirming that the user was not associated with DirecTV, inc

        So, in order to access the site, you had to register. If asking the user is not considered 'no effective meaure' what the hell is? Does this mean we can all ignore EULA's too, since the companies are taking 'no effective measures' besides an 'I agree' button? I mean, seriously, this sort of logic will certainly make a lot of things easier to handle:
        'Yes, I know I signed the contract with a false name, but what measures did the other party really take to keep me honest? If they're relying on me not lying, it's clearly their own fault they got burnt.'
        "Your honour, I know the defendant asked me to stop punching him, but he didn't take any effective counter-measures so I figured it was really alright to continue "

        • by Vengie ( 533896 ) on Friday June 02, 2006 @02:01AM (#15451668)
          ...the problem is Snow sued under the SCA rather than traditional contract theory. Of course, they violated their "contract" -- so the court would award him WHAT at best? An injunction? Because he couldn't have set up an IP blacklist to get that already? Seriously, the difference here is between contract law and a form of "public access" (public accomodations) law. If you are a private club with no serious barriers to entry, you cannot claim to be a private club, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966).
      • by Zork the Almighty ( 599344 ) on Friday June 02, 2006 @02:04AM (#15451679) Journal
        Tell that to Richard Dinon, the Florida man charged with a felony after using an open wireless access point. Or how about the Register.com versus Verio case ? The court ruled that Verio scraping a publically available whois database was illegal, because Register.com put a notice in there that repeated automated access was not permitted. That precendent almost contradicts this one (there's the distinction of how versus who).

        For what it's worth, I agree with the court's ruling. What I don't agree with is the tendency for people, companies, government agencies, police, and yes, occasionally the courts, to presume that citizens need permission for everything that they do. If it doesn't violate a law, we don't need permission.
        • Register.com v Verio is in the same vein as AP v INS and ebay v bidder's edge. It's more about right to exclude a COMPETITOR than the general public. (i.e. quasi property right.) Richard Dinon's case is just crappy lawyering and poor framing of the issue.
      • Yah, they looked for any way possible to throw the suit out. DirecTV says he's a cable pirate running a cable pirate haven. The court mentions their hundreds of lawsuits and "countless" demand letters, and that's just in Florida. So everybody involved knows this is a "get the hell out of here, we don't want anything to do with you" opinion. Their behavior didn't qualify for the SCA and you didn't try hard enough to prove these guys had anything to do with DirecTV and your colo site was in CA or WA or so
      • by FhnuZoag ( 875558 ) on Friday June 02, 2006 @02:55AM (#15451829)
        This does have a parallel with another recent case, though - specifically:

        http://yro.slashdot.org/article.pl?sid=06/05/10/15 58200 [slashdot.org]

        'My intention was never to disrupt security. The fact that I logged on and there were no passwords means that there was no security,' McKinnon said, outside the hearing at London's Bow Street Magistrates Court.

        Who faces 5 years and $250k in fines.

        Reading that thread, there is a general consensus that McKinnon deserved it - the ease of entry didn't matter, so long as he was aware that he was tresspassing.
    • by killjoe ( 766577 ) on Friday June 02, 2006 @01:39AM (#15451610)
      "It seems more and more like we have a double standard when it comes to "computer trespass" laws."

      It's not limited to computer trespass and it's not "more and more". We have always had two different legal systems in the US. One for the rich, one for everybody else.

      American legal system is the best legal system money can buy.
  • Well, interesting story. There once was this website called ThePirateBay.org, that had a whole lot of things readily accessable to the general public, but uh ... not so popular with los federales. In fact, they claim that many people accessed their stored communications without authorization!

    Seriously though, this seems so vaguely worded that I think it's almost useless as a precedent. "Readily accessible" is pretty subjective to a given individuals knowledge (I happen to find whois queries readily accessib
  • You really can't expect someone to sit there and interview everyone who wants to become a member of this sort of thing... it just isn't really possible. Just imagine if there was some guy who had to sit there and interview each new member of slashdot. No way would that ever work.

    What makes something readily accessible to the general public? According to the article they didn't even give an example (apart from that "hint" which I just went over). That is just way too vague.
    • Why is it every idiot who runs a wiki wants to meet you on irc or email before they'll give you an account? The people who should understand most intimately how important it is to make it easy for people to access your site.
    • Yes, just imagine. There'd be no grits in any pants, no petrified Natalie Portman erotica, no subversive links to goatse or tubgirl. There'd be no shills for different companies trying to influence Slashdot users...

      Hey... I think you might be onto something.

    • Hmm, I see your point. What is needed is the social equivalent of Captcha...

      [Website] In order to access this site, you need to send an essay describing the importance of "Business Ethics" (see: Billy Madison).

      [Corporate Lawyers] Ugh! Argh! I can't do it!

      That'd trip 'em up for sure.
  • Trespassing (Score:4, Insightful)

    by Jordan Catalano ( 915885 ) on Friday June 02, 2006 @12:56AM (#15451465) Homepage
    I know you can't extrapolate from online laws to real-world ones, but...

    On Snow's site, any member of the general public could access the site by merely registering with a username and password and clicking on the words "I Agree to these terms." Such an easily surmountable barrier to access is, according to the court, insufficient to make a site not "readily acessible to the general public."

    If I own some land, and don't want people trespassing to pick berries but have no problem with them hiking across it, I can put up signs to that effect. If they come to pick berries, I can kick them out for trespassing. Were online standards applied to this law, even putting up a short fence wouldn't be sufficient to allow me to enforce my signs; I'd need 15-foot concrete barriers and hired guides to chaperone all visitors.
    • Re:Trespassing (Score:2, Insightful)

      by Iron Condor ( 964856 )
      On Snow's site, any member of the general public could access the site by merely registering with a username and password and clicking on the words "I Agree to these terms." Such an easily surmountable barrier to access is, according to the court, insufficient to make a site not "readily acessible to the general public."

      Now I'd like to know where that leaves sites that require you be over 18 to enter. Obviously it is not enough to click on "yes, I'm over 18".

      Even more interesting, where does it leave

    • Re:Trespassing (Score:3, Insightful)

      by jambarama ( 784670 )
      The same type of argument (if it is easy to bypass "agreeing" without actually agreeing) is applied elsewhere, EULAs are null & void. Because the software writers didn't inconvenience us more, they forfeit any rights or waiver of responsiblity in the EULA.

      Lets all call Microsoft for compensation the next time our friend's computer breaks because of Microsoft software and see if we can use this judge's decision.
    • Re:Trespassing (Score:5, Insightful)

      by EvilNTUser ( 573674 ) on Friday June 02, 2006 @02:32AM (#15451764)

      Actually, in several countries you couldn't even do that. In Finland, wherever you erect a house is considered completely private property, but if you own forest beyond your back yard, you can't prevent people from using it.

      They can't, of course, start cutting down trees or breaking things, but you're not allowed to prevent them from doing reasonable things such as traversing it or picking berries/mushrooms.

      This makes perfect sense, as the only other alternative would be for the government to own all forests, to prevent crazy landowners from destroying everyone else's enjoyment. Imagine if you had to pick berries with a GPS locator and a map of all local land borders.

      In practice, it means you can't start posting stupid signs telling people what they're allowed to do. Just like that website couldn't...

  • Now that those "Acceptable Use Policies" don't mean anything, I no longer have to bother reading them before clicking the checkbox... No more losing sleep worrying about getting sued when I write scripts that blatantly violate the AUPs either.
  • by TheNoxx ( 412624 ) on Friday June 02, 2006 @01:16AM (#15451544) Homepage Journal
    Last time I checked, the idea behind creating a "corporation" was to give it a legal title as a person, hense the root of the word... Slightly astounded at how this court could fail to grasp not only the law but common sense and english vocabulary.

    Hah! Just kidding, I don't really expect the courts to go by morality or, god forbid, simple logic. All those little corporate trolls on here that seem to snipe at me from time to time, you may now go ahead and explain to me how judges and courts are somehow restricted by the nuance of law, and cannot find any way at all to rule in favor of ethical good.
    • Actually it's more to allow the owners of said corporation to avoid liability. Corporations have been around for centuries, but the idea of "corporate personhood" has only really been around since 1886 [wikipedia.org], and I personally believe it is a blight on our society resulting from a court reporter's screw-up and the willful failure of the court system to acknowledge that.

      I'm not a lawyer, this isn't legal advice, etc.
  • by Stalyn ( 662 )
    Is by far one of my favorite blogs. A blog that actually has people who know what they talking about giving analysis on important subjects. Are there more blogs like this?
    • SCOTUSBLOG is one good one. . If you'd like the other blogs typically read by the law school community, I will hook you up if you provide an email address. As the most recent posts to this article (on the ACSblog) have shown, slashdotters are not adding anything constructive to the debate, as by and large they all start with IANAL and then say something that is not only wrong, but generally laughably so. *sigh*
      • SCOTUSBLOG is one good one.

        Isn't that acronym wrong?

        Shouldn't it be more like:

        Supreme Court Of The United States of America?

        • When in college [I went to a...liberal arts school in New Haven, Connecticut] I always commented that I felt like it was always precipitating in New Haven. Always. Raining in the spring/fall, and snowing in the winter. And then the freezing rain, hail, etc etc made life miserable. So junior year I proposed we form the:

          Connecticut League In Times Of Rain, Ice & Snow.

          Unfortunately, it was doomed before it began.
  • by squarooticus ( 5092 ) on Friday June 02, 2006 @01:52AM (#15451649) Homepage
    Whatever happened to freedom of association? A private entity---i.e., anything that is *not* the government---should be able to discriminate on any basis it chooses.

    Even if you agree with the legality of civil rights laws, the employees of a particular company are not a protected group under that legislation.
    • If you are a private entity you must have selectivity criteria. If you do not have actual selectivity criteria, you are open to the public, and therefore a public accomodation. Basically this ruling is that a nominal selectivity criteria (i.e. voluntary self selection) is NOT one. This is nothing new at all.

      See e.g. Desnick v ABC 44 F.3d 1345; Food Lion v Capital Cities, 194 F3d 505, Clover Hill Swimming Club v Goldsboro, 219 A2d 161 (1966), Uston v Resorts Internation 445 A2d 370; Dale v BSA 734 A2d 1
  • by coaxial ( 28297 ) on Friday June 02, 2006 @01:54AM (#15451653) Homepage
    The SCA isn't applicable here. He should have brought a civil suit citing breach of contract. That's just standard licensing/contract law.
    • thank you for having a clue. this is one of the more frustrating stories on /. since long before I started law school. The american populace in general has a fundamental misunderstanding of how our court system works; it seems slashdot especially so, despite the seemingly high level of intelligence of many of the posters, they just seem to blatatly mouth off with no idea that they're missing the mark. Your post was a breath of fresh air.
  • BugMeNot (Score:3, Funny)

    by Bios_Hakr ( 68586 ) <xptical.gmail@com> on Friday June 02, 2006 @01:57AM (#15451659) Homepage
    Ironicly enough, the user/pass they used to acces his site was:

    bugmenot/bugmenot
  • Bad either way (Score:3, Insightful)

    by DumbSwede ( 521261 ) <slashdotbin@hotmail.com> on Friday June 02, 2006 @02:15AM (#15451716) Homepage Journal
    I can't help but wonder what kind of precedent this sets for activities like spamming. Essentially the courts are saying if it is easy to do, even if clearly not the desire of those seeking privacy to not be invaded by you -- go ahead anyway. Lots of cool things are unworkable on the internet because people don't respect clearly posted guidelines for activities, this is just one more ruling making it harder for online communities to self-govern.

    Sadly if the ruling went the other way, I could see bad outcomes as well. Still Direct TV seems more than a little slimy in ignoring the request. Perhaps their anti-social behavior should be more widely disseminated -- say by some well read online community of some sort, perhaps one that provides news to the technically inclined or what the general public calls geeks.
  • by MulluskO ( 305219 ) on Friday June 02, 2006 @02:23AM (#15451738) Journal
    The ruling makes no mention of EULAs or contracts. I think this would have been a far more interesting case had Snow argued that viewing the website was a breach of contract rather than attempt to apply some anti-hacking law someplace that it doesn't belong.
  • woman's bathrooms (Score:5, Interesting)

    by Anonymous Coward on Friday June 02, 2006 @02:49AM (#15451809)
    Does this mean I as a man can now go into woman's bathrooms and showers and such? There is just a sign! There is no real screening process! Woot!
  • by Nom du Keyboard ( 633989 ) on Friday June 02, 2006 @02:56AM (#15451833)
    This needs to get sent to the Supreme Court - fast!

    And if the Supremes uphold the 11th Circuit, then every SCA conviction so far should be overturned pronto!

  • by lisaparratt ( 752068 ) on Friday June 02, 2006 @02:57AM (#15451841)
    It's missing a brown envelope sticking out of her packet pocket...
  • by spiritraveller ( 641174 ) on Friday June 02, 2006 @07:36AM (#15452596)
    Every time you go to a website and don't read the 10 pages of fine print, you would risk committing a federal offense.

    People, this is not a contract issue. If it were, he would probably have won.

    He was trying to use the biggest weapon available and he screwed up, because he does not use anything to keep people out.

    The court made the only interpretation of the statute that would be reasonable.
  • by layer3switch ( 783864 ) on Friday June 02, 2006 @09:07AM (#15453069)
    Then court should also think this is totally stupid and shouldn't protect porn sites from liability, if that is the case. After all, it's only click away from kids to access porn. I can hear that "for the Children" antic coming up.

    Some judges need a lesson on how internet works. Probably most judges think internet runs on some magnetic tapes and flashing light bulbs with occational "beep.. beep" noise.

    pr0n for everyone!

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