Facebook sued a content aggregation site on the basis of a term in its TOS that prohibited content aggregation. Facebook claimed that this violation was also a violation of California criminal law. The U.S. District Court for the Northern District of California held that the terms of a TOS were vague enough that using a criminal statute to penalize breach would be a violation of due process rights. The court reached two conclusions that are important to hosts: merely accessing a website may create a contract between the host and the party accessing the site; and criminal statutes cannot be used to enforce terms of service, except in very limited circumstances.
Most terms of service contain a provision stating that by accessing the website, an individual doing so consents to the terms of service. The court in this case held, in a footnote, that by accessing Facebook, the site “violated an express term of use” which prohibited accessing Facebook to aggregate content. As a result, Facebook might have had a claim against the site based on breach of contract. This type of contract language would allow a host to sue someone for breach of contract if, for example, the individual accessed the host’s site for the purpose of collecting network architecture information, and the TOS prohibited that access.
The Court’s second holding was based on a California criminal statute that prohibits “knowingly accessing” a computer system “without permission.” Since the Facebook TOS expressly prohibited accessing Facebook for the purpose of aggregating content, Facebook claimed that this statue had been violated.
However the Court determined that criminal penalties require notice that prohibited conduct is in fact prohibited. Because a terms of service contains relatively vague provisions, it does not provide sufficient notice that criminal penalties may be involved. This seemed to be particularly true since the site could simply access Facebook without overcoming any technological barriers to that information. The decision would likely have been different, however, if the site had circumvented some sort of technological measure put in place by Facebook to stop that type of activity.
Given the significant nature of a criminal charge, this type of distinction makes sense. The court’s rational analysis validates online contracts with terms making simple access of a site consent to a contract. At the same time, it reinforces the idea private companies cannot use their contracts to define the scope of criminal law.
About David Snead
David Snead is a lawyer whose practice is focused on internet infrastructure providers. In his eleven years in this practice, he has represented clients including multinationals, middle tier hosting companies, and two guys, a server, a T-1 and a huge MasterCard balance.
A long-time WHIR contributor, David Snead is the Web hosting business's best-known legal expert. Through his WHIR blog, he offers a credible legal perspective on both specific actions in the Web hosting business and general developments in legislation.
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