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Internet “Terms-Of-Service” Will Get SCOTUS Review

Computer Decision gavel

December 21, 2020

The on-line contracts called terms-of-service are under scrutiny in a case now before the Supreme Court, with a decision likely early next year. Van Buren v. United States “couldn’t be more relevant to the IT security industry,” according to one source quoted in an article from CPO (Chief Security Officer) magazine. This case is expected to clarify the reach of these ubiquitous but seldom read contracts, under the 1986 Computer Fraud and Abuse Act. The Electronic Frontier Foundation is weighing in on the side of the petitioner, a police officer alleged to have taken money in exchange for looking up a license plate number in a police data base. Some members of the Court are reported to have (seemingly) agreed during oral argument that his actions were illegal, but not that they were addressed by the CFAA. “In general,” says the vice president of one security company, “this is a case that every single security research person needs to be aware of … [T]his type of interpretation of the CFAA is a huge issue. It would become a federal crime when someone violates a website’s Terms & Services, which would put pretty much everyone at risk of everyday online behavior, allowing private companies to decide who goes to prison for those violations.” The government, says another commentator, is arguing these concerns are overblown, but he adds that he “wouldn’t be surprised if at least some of the Justices appear hesitant to trust the government’s word that it won’t prosecute minor infractions.”

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