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Ticketmaster's Terms of Service Cannot Make You a Criminal

Flawed Prosecution Would Give Websites Extraordinary Power to Dictate Online Behavior
PRESS RELEASE
July 2, 2010
Flawed Prosecution Would Give Websites Extraordinary Power to Dictate Online Behavior

Newark, New Jersey - The Electronic Frontier Foundation (EFF) and a coalition of academics and public policy groups are urging a federal judge to dismiss a criminal indictment that could give websites extraordinary power to dictate what behavior becomes a computer crime.

The four defendants in this case are the operators of Wiseguys Tickets, Inc., a ticket-reselling service. In its indictment, the government claims the four purchased tickets from Ticketmaster by automated means, violating Ticketmaster's terms of service and therefore the Computer Fraud and Abuse Act (CFAA). In an amicus brief filed today, EFF argues that this prosecution expands the scope of the CFAA beyond what Congress intended, grounding criminal liability in whatever arbitrary terms of service that websites decide to impose on users.

"Under the government's theory, anyone who disregards -- or doesn't read -- the terms of service on any website could face computer crime charges," said EFF Civil Liberties Director Jennifer Granick. "That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails."

The government has suggested that this criminal prosecution is only about protecting consumers' fair access to event tickets. However, Ticketmaster itself has a financial interest in the ticket-reselling business and stands to benefit substantially from putting competitors out of business.

"The CFAA is aimed at blocking trespass and theft, not quashing innovation. Yet under the government's theory, websites could put the power of criminal law behind their own terms of service to create severe obstacles for their competitors," said EFF Senior Staff Attorney Marcia Hofmann. "The government has overstepped here, and we're asking the judge to dismiss this indictment."

EFF's amicus brief was also signed by the Center for Democracy and Technology (CDT), the Association of Criminal Defense Attorneys of New Jersey, and law professors Gabriel "Jack" Chin, Eric Goldman, Michael Risch, Ted Sampsell-Jones, and Robert Weisberg.

For the full amicus brief:
http://www.eff.org/files/filenode/us_v_lowson/LowsonAmicusBriefFinal.pdf

For more on this case:
http://www.eff.org/deeplinks/2010/07/cfaa-prosecution-wiseguys-not-so-smart

Contacts:

Jennifer Stisa Granick
Civil Liberties Director
Electronic Frontier Foundation
jennifer@eff.org

Marcia Hofmann
Senior Staff Attorney
Electronic Frontier Foundation
marcia@eff.org

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