united-states terms-of-service
Can your ToS ban law enforcement?
<p>Researching something I stumbled over the following Terms of service for a website:</p>
<blockquote>
<p>Notwithstanding any other part of these Terms of Service, and notwithstanding any other express or implied grant of permission, the following persons/entities are expressly forbidden from using, accessing, or obtaining any information from [the site] for any reason:</p>
<p>Federal and state law enforcement agencies operating within or under the authority of the states of New Jersey, New York, Connecticut, Pennsylvania, and Washington. Agents of the offices of the Attorneys General of New Jersey, New York, Connecticut, Pennsylvania and Washington. Agents of the offices of Consumer Affairs or Consumer Protection in the states of New Jersey, New York, Connecticut, Pennsylvania, and Washington.</p>
</blockquote>
<p>Is such a Term of &quot;non service&quot; legal and hold any water? The website claims that the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (the “CFAA”) would give their blanket ban force.</p>

<p>One way in which it holds legal water is that if you use the website in violation of the terms, then you may forfeit your right to take civil action against the company. Analogous language especially regarding the age of the user may protect the site against actions by third party governmental entities (COPPA-like laws), though nothing patently obvious springs to mind (insofar as this deals with firearms and there is also an age 21 restriction both on the web site and in terms of US firearms law, this is not a totally crazy idea).</p>
<p>The citation of 18 USC 1030 non-probatively points to an issue which may be disposed of by SCOTUS in <a href="https://casetext.com/case/united-states-v-van-buren-9" rel="noreferrer">US v. van Buren</a>, that knowingly violating the terms of service is a crime (a proposition rejected by lower courts, see <a href="https://casetext.com/case/united-states-v-valle-29#p528" rel="noreferrer">US v. Valle</a>). <a href="https://casetext.com/analysis/ninth-circuit-issues-two-recent-decisions-further-definining-liability-under-the-computer-fraud-and-abuse-act?PHONE_NUMBER_GROUP=P&amp;sort=relevance&amp;resultsNav=false&amp;q=" rel="noreferrer">Facebook v. Power Ventures</a> in particular clarifies how &quot;being put on notice&quot; may make such unauthorized access indeed &quot;unauthorized access&quot; in the statutorily-relevant sense. This does not prevent a legally-authorized law enforcement investigation, pursuant to para (f), but if the &quot;violation of TOS = unauthorized access&quot; theory is upheld, it limits how LEOs can legally access the website (and the limitations extend past LEOs). It is a separate and potentially interesting question whether there actually <em>are</em> any legal limits on the investigative powers of the government – if any law enforcement officer has the liberty to investigate anyone they want, with no supervision or requirement of justification, then this would be a rather gaping loophole in their legal strategy.</p>
<p>Web pages involve massive copying of copyright-protected data, and the function of terms of use is in part to conditionally grant access to that copyright-protected content. When a person copies protected material from someone's web page having been explicitly denied permission to copy, they run the risk of an infringement lawsuit.</p>
