July 2, 2010 | By Jennifer Granick

CFAA Prosecution of Wiseguys Not So Smart

In the latest battle to protect users from punishment for violating website terms of use, EFF filed a brief today in U.S. v. Lowson, again arguing that public websites can not decide who is and is not a criminal.

In this federal prosecution in New Jersey, the government charged the operators of Wiseguys Tickets, Inc. with violating Ticketmaster's terms of service, and therefore the Computer Fraud and Abuse Act, by using bots to purchase event tickets to resell them.

The government couldn't charge the men with any scalping offense because ticket resale is not a crime. And while the government has suggested that this criminal prosecution is only about protecting consumers' fair access to event tickets, Ticketmaster and other online ticket vendors are hardly models for consumer protection. Ticketmaster itself has a financial interest in in the ticket-reselling business, and stands to benefit substantially from putting competitors out of business. Along with the Association of Criminal Defense Attorneys of New Jersey, the Center for Democracy and Technology and several law professors, we are asking the judge to dismiss the indictment.

Using criminal law to enforce private website operators' terms of use puts immense coercive power behind arbitrary and self-serving rules. In this case, for example, fans may hate Wiseguys for snapping up good tickets only to sell them at a higher price, but they also hate Ticketmaster for selling them paperless tickets that can not be resold, gifted or transferred, and for its monopolistic control and pricing strategy in both the primary and resale market for tickets (through its TicketsNow service).

Legislators agrees with consumers that the ticket market is broken; Congress has considered at least two laws to try to fix the problem, and several states have scalping regulations. But neither the federal government nor any state has outlawed purchase and resale of tickets. That's because the problem is complicated, and doing things Ticketmaster's way is not going to fix what ails music and sports fans. Yet giving Ticketmaster complete control over purchase and resale is what this prosecution is about. That's why EFF weighed in here, even though we know that many of our fans are music fans too, and might not like the defendants.

This prosecution has ramifications far beyond the ticket market. For example, the same legal theory the government is pushing here has been used to attack anonymity, pseudonymity, data portability and other consumer rights. For example, in United States v. Drew, a woman was charged with violating the federal computer crime law for creating a false profile, which she then used to communicate inappropriately with a teenager who eventually committed suicide. EFF filed an amicus brief in that case, and the charges were eventually dismissed.

We also defended Boston College computer science student Riccardo Calixte, whose computers, cellphone and iPod were seized by local police who claimed that he violated criminal law by giving a fake name on his Yahoo account profile. A justice of the Massachusetts Supreme Judicial Court ordered police to return the property after finding there was no probable cause to search the room in the first place.

Just two weeks ago we filed an amicus brief in Facebook v. Power Ventures. There, Facebook makes basically the same claim that the government makes in the Wiseguys case: because Facebook's terms of service ban users from accessing their information through "automated means", aggregation tools violate the criminal law.

We will continue watching and weighing in on these cases, as criminalizing terms of service violations has severe ramifications for free speech, innovation, and other digital freedoms.

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