Yes, The DOJ Thinks It's A Crime When A 12 Year Old Reads The NY Times

from the reform-the-cfaa-now dept

We've been talking a lot lately about the need for serious reform of the Computer Fraud and Abuse Act (CFAA), which was initially supposed to be a law about malicious hacking, but has been used repeatedly by the DOJ and others to attack something so simple as a minor terms of service violation as a potential felony. While certain courts have rejected the DOJ's interpretation, that has not stopped the DOJ from claiming that its interpretation can be applied in other circuits. Even more bizarre is that, rather than fixing the law, Congress's most recent actions have suggested an interest in expanding the law even further, increasing the punishment levels for those the DOJ decides to go after.

The EFF has pointed out just how ridiculous it is to argue that violating a terms of service is a potential felony, noting how that even makes children who read online news sites potential felons for violating terms of service. This is, in part, due to another bad law that we've spoken about, the Children's Online Privacy Protection Act, or COPPA. The issue here is that online sites have stricter rules if they're seen as targeting children under the age of 13. To avoid this potential liability, many websites simply inserted a clause into their terms of service saying that you can only read the site if you're over 13 (some sites say 18 and others say between 13 and 18 need a parent's approval). While this is somewhat lazy lawyering on the part of those sites (to ban outright), those are their terms of service. And violating such terms violates the CFAA under the DOJ's interpretation.

The EFF notes that such age exclusion provisions are pretty common, and sites like the NY Times and NBC News bar children under 13 entirely.
This means that inquisitive 12-year-olds who visit NBCNews.com to learn about current events would be, by default, misrepresenting their ages. Again, this could be criminal under the DOJ's interpretation of the CFAA.

We’d like to say that we’re being facetious, but, unfortunately, the Justice Department has already demonstrated its willingness to pursue CFAA to absurd extremes. Luckily, the Ninth Circuit rejected the government’s arguments, concluding that, under such an ruling, millions of unsuspecting citizens would suddenly find themselves on the wrong side of the law. As Judge Alex Kozinski so aptly wrote: "Under the government’s proposed interpretation of the CFAA...describing yourself as 'tall, dark and handsome,' when you’re actually short and homely, will earn you a handsome orange jumpsuit."

And it’s no excuse to say that the vast majority of these cases will never be prosecuted. As the Ninth Circuit explained, “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.” Instead of pursuing only suspects of actual crimes, it opens the door for prosecutors to go after people because the government doesn’t like them.

Unfortunately, there’s no sign the Justice Department has given up on this interpretation outside the Ninth and Fourth Circuits, which is why the Professor Tim Wu in the New Yorker recently called the CFAA “the most outrageous criminal law you’ve never heard of.”
Then the Atlantic Wire helpfully jumped in and highlighted many other publications and their online terms of service, showing that young readers of many of today's most popular news sites are potentially breaking the law every time they do so under the DOJ's clearly stated position on the CFAA.

The EFF followed it up by pointing out that, until just recently, if you were a 17-year-old girl (or younger!) reading the magazine Seventeen online, you were almost certainly breaking the law under the DOJ's interpretation of the CFAA, since its terms restricted visitors to those 18 and older.

Rather than "trusting" the DOJ not to abuse this kind of thing, wouldn't we all be better off fixing it?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    silverscarcat (profile), Apr 5th, 2013 @ 6:11am

    See?

    Bob, AJ, OOTB...

    THIS is why bad laws need to be scrapped and fixed!

    Or would you rather turn EVERYONE into criminals?

    BTW, that includes yourselves.

    Would you rather we keep up with these laws the way they are and see the consequences of bad legislation?

    Or would you rather we FIX the broken mess before it gets worse?

     

    reply to this | link to this | view in thread ]

  2.  
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    out_of_the_ajbob, Apr 5th, 2013 @ 6:23am

    Re: See?

    Fact: the government never makes mistakes, never oversteps its bounds, and individuals within the government never abuse their privileges.

    Ergo, your argument is invalid.

    Blargle blargle.

     

    reply to this | link to this | view in thread ]

  3.  
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    BentFranklin (profile), Apr 5th, 2013 @ 6:32am

    Scenario 1: Troll makes first comment in a thread and derails it with long tree of replies.

    Scenario 2: Troll-fighter makes first comment in a thread and derails it with long tree of troll replies and sarcastic troll imitators.

    I fail to see the difference. If you oppose trolls, and you're commenting first, it's best to comment about something that doesn't refer trolls or trolling. Otherwise, it's just the comment section version of the TSA.

     

    reply to this | link to this | view in thread ]

  4.  
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    Ninja (profile), Apr 5th, 2013 @ 7:19am

    Stop treating kids as retarded beings that must be protected from all "questionable" input. As broad as "questionable" can be. I plan to make my kid engaged in world, politics and whatever as soon as possible. I have a 10-yr-old little friend that loves to discuss such things with me even if he doesn't fully understand all the time.

    As for CFAA and the DOJ it doesn't matter for them. All that matters is that it opens the door for prosecutors to go after people because the government doesn’t like them.

    China must be proud.

     

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  5.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 8:14am

    OMG, you mean a law made in response to a Hollywood movie about kids hacking into the military's computers and starting WW3 turned out to be way too board and over reaching?!?

    Who could have ever guessed something like this would happen?!?

     

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  6.  
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    TasMot (profile), Apr 5th, 2013 @ 8:17am

    Schools Better Inform Teachers of This

    One HUGE unintended consequence of this is that now teachers are going to have to teach all students under the age of 18 to very carefully read the Terms of Service on any website they land on to do research for school. Especially any class that references current events.

    To protect themselves (like NYT did), most big news services are going to have this clause also. So every student trying to research current events are going to have to be trained to be lawyers in order to read the TOS to see if they can use that online service to do their research.

    Let's add some secondary liability too. Does this mean that Google and other search engines are going to need to know the age of the person doing the search so that they can eliminate search results that they are not "protecting a child from viewing" because they are too young? This could get very rediculous very fast.

     

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  7.  
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    Chosen Reject (profile), Apr 5th, 2013 @ 8:19am

    There was a discussion about this on Hacker News the other day. A lot of people thought the EFF was being stupid because certainly the DoJ would never arrest a 12 year for reading the news. I think that misses the point. To take it to an extreme, the government could make it a felony to drink water in the morning. We'd all say, "Surely they'll never enforce that." But there are two questions:
    1) Why should it be against the law if they aren't going to enforce that law?
    2) How long before they enforce that law just to get someone for some other reason?

    I get that Capone was a bad guy, and yay we got him on tax evasion, but I fear that too many people think that was a model to emulate. "If you can't get them on what you really want to get them on, get them on any ticky tack little thing," they'll say/think. Which means the more ticky tack little laws that "surely they'd never enforce" the better.

    It needs to stop.

    Then there's the idea of someone other than the government deciding what is a felony. It's not just large corporations. Anybody with a blog could post a ToS that does the same thing here. Case in point:

    ToS for reading the above comment: You agree that you are not a cop or any employee of the government, and that if you are, you will only read this while standing naked in the middle of the road while holding a half plucked chicken. Failure to abide by these terms will result in felony prosecution under the proposed CFAA changes.

     

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  8.  
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    Anonymous Coward, Apr 5th, 2013 @ 8:21am

    how the hell can anyone trust the DoJ? look at what it has become. it is nothing like the law enforcement agency it should be. it's more like a mixture of the USA entertainment industries private security firm and a parents worse nightmare!

     

    reply to this | link to this | view in thread ]

  9.  
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    Planespotter (profile), Apr 5th, 2013 @ 8:22am

    Re: Schools Better Inform Teachers of This

    Personally I would like to see every single website have to put up a banner that explains exactly what ages may view their pages and also why they have had to put the banner up. Once every single American has to click through a banner, proving via some as yet unknown way that they are old enough to view the page, you can imagine the backlash against such stupid legislation will begin.

     

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  10.  
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    gorehound (profile), Apr 5th, 2013 @ 8:23am

    All I know is my Parent's loved how I learned to read even before the 1ST Grade and they were proud of that.By the time I was around 6 my little 3 year old brother would sit in my lap while I taught him to read using that old 50's-60's book with the pictures and the See Spot Run stuff.

    I also read the Newspapers every day which I must have started doing around 8-10 at the most.My Parent's loved how I would read News and Watch TV News and try to learn about the World.

    Now I state that either these Government Bozos want to keep Kids stupid and uninformed or they just love creating bad laws or it is a combo of both.

     

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  11.  
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    Anonymous Coward, Apr 5th, 2013 @ 8:34am

    Does a 12 year old visiting a site to read the TOS commit an offence if the TOS prohibits them from the site? Note, they may have to visit the front page to find the TOS page.

     

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  12.  
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    justok (profile), Apr 5th, 2013 @ 8:37am

    Re:

    What about university/college or even school websites?

     

    reply to this | link to this | view in thread ]

  13.  
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    TheLastCzarnian (profile), Apr 5th, 2013 @ 8:49am

    Allowing prosecutors to make decisions

    There was an interesting conversation I heard on NPR yesterday. The show was on mandatory minimum sentences, but the closing statements were very revealing. A former prosecutor's final statement was that mandatory minimums were necessary because it gave the prosecutor descression to increase or decrease sentences as they deemed necessary, rather than leave it to a judges whim. Another guest made the point that a judge's decision is public and subject to review, while a prosecutor's dealings are behind closed doors. Power without accountability.
    I think prosecutors may have become power-drunk.

     

    reply to this | link to this | view in thread ]

  14.  
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    out_of_the_blue, Apr 5th, 2013 @ 8:50am

    Re: See? @ "silverscarcat"

    @ "Or would you rather we FIX the broken mess before it gets worse?"

    First, THANKS for the advance publicity, for begging me to comment.

    2nd, you go wrong with the sheer ad hom assertion that anyone commenting here is pleased with CFAA (that I've seen or know of), let alone more of it.

    3rd, so go ahead and FIX it already! Let's hear your plan. HOW is the problem, ain't it? I'd suggest forming alliance, not knee-jerk assertions that make enemies. -- If you'd read my comments with even minimally open mind, you might see that I support copyright but definitely not unlimited copyright let alone unlimited gov't.


    @ "BentFranklin": Those you mistake for "troll-fighters" are those whom I call fanboy-trolls. They have nothing BUT ad hom trolling, so don't deny them their fun. In contrast, I WANT them to comment, more the better. They ARE the Typical Techdirt Trolls. You too will fail at "Don't feed the troll", even when you think they're on your side.


    ANYHOO, what's to worry? DOJ IS getting pushed back: "the Ninth Circuit rejected the government’s arguments". That's all can be done now. -- Not least because ANY attempt at legislating reform is SURE to result in WORSE. The more brazenly draconian DOJ is actually helps.

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Andrew Brooklyn, Apr 5th, 2013 @ 8:53am

    Re: See?

    The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.
    "Ayn Rand"

     

    reply to this | link to this | view in thread ]

  16.  
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    Rikuo (profile), Apr 5th, 2013 @ 8:53am

    Re:

    I was able to read by the time I was two. Precocious little scamp I was. I was devouring encyclopedias by the time I'd started school, and yes, that meant I learned the birds and the bees years before anyone else. If I'd done this today, with the CFAA in force, I'd be a hardcore criminal merely for being a child prodigy.

     

    reply to this | link to this | view in thread ]

  17.  
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    Rikuo (profile), Apr 5th, 2013 @ 8:56am

    Re:

    Your comment should have been the first word. I gave you last word instead as a consolation prize. What about the average citizen? Say the TOS of the website prohibits viewing the actual website at all. In order to read the TOS, you have to view the website. Just like the anti-circumvention clause of the DMCA, to try and be legal, you end up committing a crime.

     

    reply to this | link to this | view in thread ]

  18.  
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    Rikuo (profile), Apr 5th, 2013 @ 8:56am

    Re: Allowing prosecutors to make decisions

    May have? Methinks, you are a tad naive, my friend.

     

    reply to this | link to this | view in thread ]

  19.  
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    MonkeyFracasJr (profile), Apr 5th, 2013 @ 9:02am

    @ Bent Franklin's comment

    This is why I would like to see a feature that would allow readers to collapse entire threads in the comments. It would allow readers to "filter" out the derailed sections and focus better on the actual discussions.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:02am

    Re: Re: See? @ "silverscarcat"

    "First, THANKS for the advance publicity, for begging me to comment."

    So...you are happy to be summoned as the court jester?

    To each his own, I suppose...

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:09am

    Printed, and hung on the monitor:

    “Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.”

    I like this phrase so much, that I'm going to trot it out every time it's applicable from this day forward.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:12am

    Re:

    Sure the government would never look for a 13 year old to charge under terms of service, but what if they wanted something from you. "We notice your son has been viewing the NYT. Isn't he only 13? If you don't cooperate I guess we will have to charge him with a felony."

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Bengie, Apr 5th, 2013 @ 9:20am

    Everyone everywhere

    The government's job is so much easier when everyone is a felon, because they can just arrest you then make up a reason.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:33am

    As Judge Alex Kozinski so aptly wrote: "Under the government’s proposed interpretation of the CFAA...describing yourself as 'tall, dark and handsome,' when you’re actually short and homely, will earn you a handsome orange jumpsuit."


    You really think someone would do that? Just go on the internet and tell lies?

     

    reply to this | link to this | view in thread ]

  25.  
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    MikeC (profile), Apr 5th, 2013 @ 9:39am

    It's is a crime.

    I too believe it should be a crime for a child under 13 to read the NYT, they are impressionable and should not be exposed to the drivel published by the NYT as well as Seventeen magazine or ABC News. we need them to learn from far better sources than those - though I am not sure where they might find that. In the long run this might be a good thing?

    Mike C.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:52am

    If ToS agreements are going to be law-binding (i.e. potential felony for violating), wouldn't the logical step (aside from not making them law-binding) be to make it so that only actual laws can appear in a ToS? Who in their right mind would think it logical to give anyone the power to make up whatever laws they want! As far as I'm aware even legal contracts can't go that far.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:54am

    Re: Re:

    Its like shrink wrap licenses, you agree to the license before you can read it.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:54am

    So everyone is a criminal and if the DOJ takes a disliking to you, they can just see what swath of laws you've broken according to their interpretation.

    That's really no way to run a society.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 9:58am

    Rather than "trusting" the DOJ not to abuse this kind of thing, wouldn't we all be better off fixing it?

    Are you saying the DoJ is wrong to fear, ostricize and criminalize intelligent people, and people who understand and embrace technology?

    I'm afraid their paradigm is coming from 250 million Cletuses/Cletusannas voting for a few hundred idiots who echo back to them that being uninformed is the most patriotic thing going. Debating and practicing stupid is the easiest floor show in politics... ever. Why don't you try to intepret law for a living.. it's HARD!

    So give the poor DoJ a break... it's just not natural to part with convenience after all.

     

    reply to this | link to this | view in thread ]

  30.  
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    Trevor (profile), Apr 5th, 2013 @ 10:00am

    The Point

    I don't believe the DOJ will go after kids for reading news sites.

    I do however believe the DOJ will add these charges on to someone arrested for something else, when an internet search or computer search reveals they accessed a site contrary to the TOS to bolster the charge sheet.

    Also, this broad law gives the DOJ the leeway to go after people it doesn't like, because many millions of people have violated a site TOS, or played Counterstrike on a school computer at some point.

     

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  31.  
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    Trish, Apr 5th, 2013 @ 10:36am

    In Soviet America, everyone's a criminal!

     

    reply to this | link to this | view in thread ]

  32.  
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    egghead (profile), Apr 5th, 2013 @ 10:50am

    Re: @ Bent Franklin's comment

    Sadly, the trolls would then just start posting comments without replying. They might even use that tic-tac-toe symbol or the loopy-tailed-a. Kids these days; who knows, next they might start leaving out letters, or worse, replacing them with similarly shaped numbers and symbols to avoid filters.

     

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  33.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 10:57am

    Re:

    "I have a 10-yr-old little friend"
    Sounds a bit wrong.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 11:13am

    Re: Re: See? @ "silverscarcat"

    "DOJ IS getting pushed back: "the Ninth Circuit rejected the government’s arguments". That's all can be done now. -- Not least because ANY attempt at legislating reform is SURE to result in WORSE. The more brazenly draconian DOJ is actually helps."

    For an asshole who was cheerleading the DoJ, OotB is suddenly trying to backtrack as fast as a Republican on womens' rights.

     

    reply to this | link to this | view in thread ]

  35.  
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    pesti (profile), Apr 5th, 2013 @ 11:40am

    The most committed crime on the internet.....

    ..is a felony!!!my god and if I really think about it...3 strikes...omg.I'm looking at life.

     

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  36.  
    identicon
    Cowards Anonymous, Apr 5th, 2013 @ 11:49am

    Worse, since most companies explicitly state that they may unilaterally change their Terms of Service at any time, they could make what you did on their site yesterday illegal today.

    Don't like what that Anonymous poster said in a comment on your site? Change the Terms of Service to ban Anonymous posts and if they don't remove or identify their posts immediately, felony!

     

    reply to this | link to this | view in thread ]

  37.  
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    Oblate (profile), Apr 5th, 2013 @ 12:01pm

    Re: Schools Better Inform Teachers of This

    Does this mean that when a teacher assigns homework involving research on the internet that they are committing criminal conspiracy?

    Are the librarians going to be charged as accessory to a felony for letting students use computers?

    Let's seem them try to spin this as 'for the children'.

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    'Honest Abe' Lincoln, Apr 5th, 2013 @ 12:54pm

    Re:

    Of course not, everyone(myself most of all), knows that people would never lie on the internet!

     

    reply to this | link to this | view in thread ]

  39.  
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    FarSide (profile), Apr 5th, 2013 @ 1:12pm

    Re:

    shhhhhh... you aren't supposed to point out catch-22s!

    Oh, nm, it doesn't matter anyway.. the courts are already quite happy with upholding things like that.

    Obviously the answer is to ask a grownup before going to any web site to check the TOS.

     

    reply to this | link to this | view in thread ]

  40.  
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    JP Jones (profile), Apr 5th, 2013 @ 1:33pm

    Re: Re: See? @ "silverscarcat"

    2nd, you go wrong with the sheer ad hom assertion

    Ad hom...I don't think that word means what you think it means.

    If you'd read my comments with even minimally open mind, you might see that I support copyright but definitely not unlimited copyright let alone unlimited gov't.

    If you'd read this blog with even a minimally open mind, you'd realize that's the whole point of the articles here. We currently exist in a country where "unlimited copyright" is the reality. Lack of enforcement on something that's arguably unenenforceable does not change this fact.

    Current copyright law means that *everything* created since you were born will be copyrighted until after you die. I don't really care if it expires after I'm dead; nothing created now will be relevant by then anyway.

    How can a company copyrighting rounded corners for beyond the human lifespan be considered anything other than "unlimited?"

     

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  41.  
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 4:30pm

    jails are run by companies wanting to show a good profitable and growing bottom line to the shareholders, the easiest way for the government to subsidise this area of the national economy is to create a bigger criminal class, new people to lock away and fill the growing number of jail cells,

     

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  42. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 6:52pm

    Re:

    You really think someone would do that? Just go on the internet and tell lies?

    Mike does it professionally. That's why he's too ashamed to discuss his personal beliefs frankly.

     

    reply to this | link to this | view in thread ]

  43. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 5th, 2013 @ 6:54pm

    OMG the law is so freaking scary! Save us, Pirate Mike! Save us with your idiotic FUD pieces and your complete unwillingness to discuss your personal beliefs directly! You're so freaking awesome! I love people who aren't honest and who spread idiotic FUD to dipshits! You're the best. Um, sorry. UR da BESTESTTTT!!!!!! DUUUUUUDDDDDDEEEEEE!!!!!!

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Anonymous Coward, Apr 6th, 2013 @ 6:07am

    Re: Re:

    Why does it sound wrong, when the wrongness is a society that treats all adults as potential child molesters.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Apr 6th, 2013 @ 6:12am

    Re: Re:

    Which is stupider, making minor breaches of TOS a felony, or politicians expecting children to read and understand them?

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Anonymous Coward, Apr 6th, 2013 @ 6:20am

    Re: Allowing prosecutors to make decisions

    A prosecutor should only have the power to determine whether or not the evidence is strong enough to be able to bring a case. They should not be able to suggest sentence length in a plea bargaining situation, as this encourages them to use it as a tool to gain guilty pleas by threatening long sentences. Sentencing should be uo to the Judge, not the prosecutor.

     

    reply to this | link to this | view in thread ]

  47.  
    identicon
    Anonymous Coward, Apr 6th, 2013 @ 12:35pm

    Re: Re: Re: See? @ "silverscarcat"

    I'm pretty sure the rounded corners thing was a design patent, not copyright, so only good for maybe twenty years. That's not to say that it's a valid patent.

    Sorry to be off-topic, but the confusion with copyright, trademark and patents is why many of us object to "intellectual property".

     

    reply to this | link to this | view in thread ]

  48.  
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    tqk (profile), Apr 7th, 2013 @ 7:30am

    Re: Re:

    Obviously the answer is to ask a grownup before going to any web site to check the TOS.

    There's an idea. s/grownup/DoJ/! Flood the DoJ with requests to vet websites for you (Cc:'ed to your member of Congress).

    "Hi, I'm seventeen years old. Is it legal for me to go to seventeen.com?"

     

    reply to this | link to this | view in thread ]

  49.  
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    Sheogorath (profile), Apr 7th, 2013 @ 2:39pm

    Re: Re: Re: See? @ "silverscarcat"

    How can a company copyrighting rounded corners for beyond the human lifespan be considered anything other than "unlimited?"
    Actually, Apple patented rounded corners for twenty years only. Please don't make valuable arguments invalid by stating innaccuracies.

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    Anonymous Howard (profile), Apr 8th, 2013 @ 2:58am

    Re:

    That's exactly what pisses me off mostly, and that's why I suggested that these comment threads be collapsed into the first reported post altogether.

     

    reply to this | link to this | view in thread ]


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