Tuesday, April 23, 2013

Corporate welfare alert: Don't criminalize internet terms-of-service violations

There's a bill up in the House Criminal Jurisprudence today, HB 1064 by Luna Hernandez, which would criminalize accessing an open wi-fi connection without express permission - the new crime would be a Class B misdemeanor, normally, and a state jail felony if the open wi-fi belongs to a government entity. The Senate companion was amended in a way that's equally disturbing, SB 249 by Patrick, is over from the upper chamber and has been amended in ways that apply the same penalties for accessing any computer network in violations of " a contractual agreement," which in practice means a company's "terms of service" agreement.

These terms-of-service agreements have become a joke and criminalizing their violation would create a bevy of pointless prosecutions. A body of contract law already exists; there's no need to use criminal law to bolster it, especially when these "contracts" are so problematic. How many times have you agreed to a site's "terms of service" with just a click of a button that says "Agree" without reading the voluminous, small-print legalese that accompanies it? Everybody has; nobody reads those things.

In 2010, just to reinforce that point, a British gaming firm began satirically including in their "terms of service agreements" language that declared users agreed to literally sell their souls. The agreement read:
By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.
Some 7,500 people clicked "Agree" before the company revealed the joke and removed the language. Reported Fox News, "The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents." That's precisely why criminalizing violations of terms of service is bad public policy.

As filed, Hernandez's bill that's up today criminalizes those who access someone else's computer network to "obtain a benefit." which would include accessing someone's open wi-fi network. As Grits wrote when the Senate bill was heard, 'Since accessing the internet for free is a benefit and effective consent is defined in the penal code as 'consent by a person legally authorized to act for the owner,' on its face accessing someone's wi-fi without their express permission would be a crime. Personally, I consider leaving wi-fi unsecured simply common courtesy, though internet service providers would like to restrict it for their own commercial benefit. As far as I'm concerned, criminalizing a neighbor using my wi-fi is akin to criminalizing their reading by my porch light. People can always restrict access if it bothers them." This bill is less about protection of the public and more about using law enforcement as corporate welfare to enforce terms-of-service agreements with wireless internet providers.

This is a bad bill. Too many unintended consequences would arise from the House version and the Senate version, which explicitly criminalizes terms of service violations, improperly uses criminal law to enforce private contracts. The legislation is a classic case of overcriminalization, usurping civil and contract law by imposing criminal penalties, including jail time, and shifting the enforcement burden onto the justice system. Both the House and Senate versions and should be roundly rejected.


Anonymous said...

I agree - classic case of overcriminalization. When wifi first became available most hotels didn't secure their's. I had a job that required me to do a lot of driving to different areas and occasionally I'd need to get some info online so I'd pull up in a hotel parking lot and use their wifi. I wasn't harming anyone. They are all mostly secured now which is the proper way to prevent this type of thing. After they all started becoming secured I just went to McDonalds which offered very cheap access. The marketplace resolved the issue itself and that is what usually happens if government will stay out of the way.

Prison Doc said...

Silly unnecessary bill. Guess I had conned myself into thinking that we were getting away from enhancements and new criminalizations. My bad.

Anonymous said...

How will officials enforce this? By some type of surveillance? It seems a law enforcement agency would have to identify the open wifi's and identify who all is connecting to the open wifi's. Remember the concerns over APD's Operation Wardrive.

Lee said...


I took a look at the bill and initially the vague wording concerned me. I did not see anything in either bill mentioning anything about wireless networks, terms of service or any service providers. The bill in fact looks like it was written by someone whom has at best a novice understanding as to how technology works in 2013. What was the original purpose or intent behind this legislation? Who is lobbying for this? I need a little more information before I can do my letter writing......

jdgalt said...

I wonder how they plan to repossess my soul!

Anonymous said...

Sec. 1.07(a)(7), PC, defines "benefit" thusly:

(7) "Benefit" means anything reasonably regarded as economic gain or advantage, including benefit to any other person in whose welfare the beneficiary is interested.

I'm not convinced that merely "accessing an open wi-fi connection" is covered by HB 1064.

It'll be interesting to hear the testimony presented at the hearing that was scheduled for today and more interesting to see what the committee did with the bill.

Don said...

This is what happens when our elected representatives have too much time on their hands. Like when the Tea Party outlaws the lottery and charity bingo, only to discover that little old blue haired church-going ladies who frequent bingo halls happen to also the Tea Party major constituents. Wish I coulda heard some of THOSE phone calls. ;)

Anonymous said...

Politicians sold their souls a long time ago...

Gritsforbreakfast said...

9:58, if wi-fi is a commodity then how is free wi-fi not a "benefit"?

Lee, the folks pushing it are prosecutors and cable providers. See the Senate witness list.

Anonymous said...

Can't claim me.... "I owe my soul to the company store..." Ok, so the McDonalds across the street from Sonic has open access Wi-Fi. If I'm at McDonalds, I can use my tablet. If I'm at Sonic, I can still use my tablet, by hooking onto the McDonalds Wi-Fi. And that's a crime? Fine, I'll go to Rosa's Cantina and hook on the Home Depot hotspot next door.

Dean Kalai said...

9:58, using free wi-fi without "express permission" to obtain "economic gain or advantage" is essentially the point of the Web, unless all you do is use it to read comics or whatever.

I look forward to "implied consent" arguments in big venues like coffee shops. Awfully worded bill by a bucky-beaver Democrat.

Anonymous said...

If you haven't witnessed South Park's version of the consequences, you are in for a treat. I promise, you'll never sign anything without reading it or eat another burito.

Anonymous said...

It's interesting to see who was there to support SB 249 when it was considered by the Senate Criminal Justice Committee:

SB 249
Senate Committee Report
Criminal Justice
March 12, 2013 - 1:30 PM or upon adjournment
Registering, but not testifying:
Eppes, Brian S. Assistant District Attorney (Tarrant County District Attorney's Office),
Fort Worth, TX
Tays, Steven Assistant Criminal District Attorney (Bexar County Criminal District
Attorney's Office), San Antonio, TX
Attaway, Shane Assistant Attorney General (OAG), Austin, TX
Providing written testimony:
Foster, Gregory Vice President (Electronic Frontier Foundation- Austin), Austin, TX
March 19, 2013 - 1:30 PM or upon adjournment
Registering, but not testifying:
Burdett, Jeff (Texas Cable Association), Austin, TX
Igo, Shanna (Texas Municipal League), Austin, TX
Attaway, Shane Assistant Attorney General (Tx OAG), Austin, TX

Anonymous said...

Next, we’ll be hearing about a bill outlawing the act of leaving Wi-Fi unsecured. Then in a matter of time it'll be against the law to leave your front door unlocked. Those that forget to zip up and or expose a cleavage or two will eventually have to register. Janet Jackson gets it.

Gun control, pressure cooker control, long hair control, butterknife control, baggy pants control, grammer and spelling control, comment section control, Wi-Fi control is obviously the gate way to cleavage and zipper control. We must control it.

Anonymous said...

Thank you 12:39 for going out of your way to assist others.

Now that we have the names of the players, if anyone has the spare time to contact the For crowd asking them who, what, why & how questions, please consider copying the questions & replies here for all.

Anonymous said...

I recall a while back that someone from the TDCAA was ranting on here about how they really do oppose overcriminalization like this. So, is it safe to assume that they are actively opposing this bill? Or was that all just BS?

Anonymous said...

Unfortunately, accessing a person's network is not a new penalty. Under penal code section 33.02 (a) it is already a Class B misdemeanor to acces a computer or computer network without the owner's consent.

This needs to be repealed! The whole section is new as of last session and now they are trying to make it worse.