October 13, 2010 | By Cindy Cohn

Judge Allows Trial of CFAA Claim Against Wiseguys

While noting that it took seriously the concerns raised by EFF and others in an amicus brief, a federal judge in New Jersey in the case of U.S. v. Lowson yesterday decided to delay a decision on the thorny question of whether the government can use the Ticketmaster website's terms of use to smack ticket resellers with criminal charges. The Court allowed a federal indictment under the Computer Fraud and Abuse Act (CFAA) of online ticket vendors to go to trial in order to develop a more complete factual record.

EFF, along with the Association of Criminal Defense Attorneys of New Jersey, the Center for Democracy and Technology, and several law professors had argued that CFAA liability should not be based on violations of terms of use. US v. Lowson is one of a rash of cases in which a website's terms of use — the long, one-sided, rarely read documents that users must click "agree" to — are being inappropriately used as the basis for criminal prosecution. The court noted:

The Court notes and must take seriously the argument advanced by the defendants, as well as those made by Amici, regarding whether the unauthorized access alleged here amounts to contract-based violations of Ticketmaster's terms of service that are actionable under civil laws.

Because it found the facts to be complicated and in dispute, the Court held that the issues raised by EFF could be best evaluated after trial, which will allow for a more complete presentation of the government's arguments and proof. The court was especially interested in the government's belated claim that liability could be based on proof of circumvention of what the court called "code-based restrictions." EFF did not directly address the "code-based restrictions" issue in its amicus because it was not the focus of the indictment.

EFF will continue to watch the case closely and will continue to weigh in to prevent criminalizing terms of use violations. We will also be watching this case in order to ensure courts carefully consider whether and under what circumstances it is proper to impose criminal penalties for bypassing code-based restrictions as well.

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