united-states criminal-law terms-of-service cfaa
Is ban evasion illegal?
<p>What is the legality of "Ban Evasions"? This sounds like a dumb question but perhaps enlighten the ignorant.</p>

<p>Ban Evasion, "The creation of a new account on a platform or website after being previously banned for ToS violations".</p>

<p>In 2018, the 9th Circuit court of appeals ruled that violating the ToS isn't a crime, but does that still cover Ban Evasion?</p>

<p>An example would be, say, <strong>Jody</strong> had an account with a very popular video sharing platform, he broke the rules and had his account suspended permanently. He learns from those mistakes (because we all make mistakes in our lives), and recreate a brand new account, despite it being written in the ToS that you cannot make a brand new account. He does so regardless, makes a new account, but then gets banned again for Ban Evasion, despite not violating any other rules, <strong>Would this be considered a criminal offense?</strong></p>

<p>Big companies (or companies in general) will most likely not care, because it's not worth the legal fees to pursue such a case, and it's better off making it harder to ban evade, or write better rules, but regardless, Did <strong>Jody</strong> commit a crime, whether on state level, or federal level? (In the United States at least).</p>

<p>In theory, such an action could be considered a violation of the <a href="https://www.law.cornell.edu/uscode/text/18/1030" rel="noreferrer">Computer Fraud and Abuse Act</a>, specifically 18 USC 1030 (a)(2)(C):</p>

<blockquote>
  <p>Whoever...intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains... information from any protected computer;</p>
</blockquote>

<p>Where the relevant "protected computer" definition is in the same section under (e)(2)(B):</p>

<blockquote>
  <p>As used in this section...the term “protected computer” means a computer...which is used in or affecting interstate or foreign commerce or communication, including a computer located outside the United States that is used in a manner that affects interstate or foreign commerce or communication of the United States;</p>
</blockquote>

<p>Every computer connected to the Internet is used in interstate and foreign communication.</p>

<p>One could imagine a situation where a prosecutor might use this particular quirk of the CFAA, for example if Jody was evading bans in order to harass someone and the prosecutor wanted to throw the book at her, but I'd guess most prosecutors would not pick up such a case if Jody's ban evasion didn't cause any damage.</p>

<p>As IllusiveBrian pointed out, this would only be a criminal matter by really stretching the definition of <em>computer fraud and abuse</em> to its limits.</p>

<p>But it might also be worth looking at the situation as a civil lawsuit. The user who accepted the terms of service and then violates them by creating a new account despite being forbidden from doing so according to the ToS (do they actually do that, though?) is in violation of a contract and acting in <a href="https://legal-dictionary.thefreedictionary.com/bad+faith" rel="noreferrer">bad faith</a>.</p>

<p>But the problem with civil lawsuits is that the plaintiff has to prove what damages the defendant caused to them / their business and put a price tag on that. One thing the plaintiff could try is to claim that the defendant did hurt their business by driving away other customers, causing a cost for moderation effort, putting an undue duty on them to fulfill legal obligations, etc.. and calculate a claim value from that. And then they have to convince the court that this number is a realistic estimate of the damages they suffered from the actions of the defendant and that the defendant is liable for those damages. Will that work? That depends on the court.</p>

<h2>Violating terms of a contract is not a criminal act.</h2>

<p>Criminal acts require violating a <em>statute</em> aka a <strong>law</strong> - but not just any law, the Criminal Code, which is one law book out of about twenty.  </p>

<p>The vast majority of law books talk about fire exits, wheelchair access, car registration fees, stuff like that.   </p>

<p>So to commit a crime, you must violate something in <em>one</em> law book, and the only people who can put laws there are the Legislature and it must be signed by the governor.  </p>

<p>Contracts are between two people, e.g. Between the internet company and you.  They're not the Legislature and they can't make something a crime.  If the things in the contract are too unreasonable, courts will throw them out, so they can't take your first born son, for instance.  </p>

<h2>A prosecution would be fruitless, even with CAFA</h2>

<p>Further, in a criminal prosecution, the court and the jury both take a hard look at whether the actions really fit the crime and really warrant jail.   Your case does not involve "hacking" or surreptitiously getting access users aren't entitled to; it simply involves behaving like normal users (albeit rudely) and creating new accounts after an account ban.  Yes, there's a law that could be twisted beyond recognition, the <a href="https://www.law.cornell.edu/uscode/text/18/1030" rel="nofollow noreferrer">Computer Fraud and Abuse Act</a>, specifically 18 USC 1030 (a)(2)(C).  It is for hacking, and that is plain.</p>

<ul>
<li>No prosecutor would ever charge that crime for your type of TOS violation.</li>
<li>If one did, the judge would toss it out in a heartbeat.  (Defense would move for summary dismissal and would get it).  </li>
<li>and if the judge insanely did allow the case to continue, the jury would nullify. Which is why the judge would not.  </li>
</ul>

<p>The only jail would be served by the prosecutor and possibly the company's attorneys, for contempt of court:  wasting the court's time with such a ludicrous case.  Contempt of court allows a judge to <em>summarily</em> throw someone in jail, without proof beyond reasonable doubt, jury, etc.  We'll come back to that.  </p>

<h2>The reasonable alternative... And the one path to jail</h2>

<p>What would the rationale be? Very simple. Even if the conduct were so outrageous as to enrage people into desiring a criminal consequence, the simple fact is that <strong>this can already be accomplished with civil consequence: the restraining order</strong>.  The judge would tell them to take it across the street to the civil courts.  And the judge would mean for <em>the company</em> to do that, since the D.A. Has no standing to get a restraining order to stop logging into a web site.  </p>

<p>The restraining order would be swiftly granted, after a review of the TOS and miscreant's conduct.  </p>

<p>Now, finally.  If the miscreant violates the restraining order, then that is contempt of court, and the judge can summarily throw the miscreant in jail with nothing more than a hearing. </p>

<p>But mind you, a US civil contempt jailing isn't a <strong>crime</strong>, you have no 4th Amendment rights, it doesn't go on your criminal record, there's no parole or probation, it doesn't affect your gun rights, and you still tick "no" when asked about criminal convictions.  It's "just" a <strong>sanction</strong> - just like being told to pay lawyer fees for the other side. </p>

<p>As stated above, this does (loosely) fall under CFAA law so would be considered against the law.</p>

<p>I guess a loophole would be to have multiple accounts on any website that states you cannot create "new" accounts once banned. This is obviously presuming only the one account was banned. You could then freely use one of the other accounts as you have not violated the terms as no "new" accounts have been created and therefore no law has been broken (as far as I am aware, although USING the site once being told not to may cause other issues)</p>

<p>Given most websites only register nicknames and records declared identity based on faith: I just question who's banned?</p>

<p>Is it the nickname that is banned?</p>

<p>Is i the IP address that is banned?</p>

<p>How would website prove that it is same person registering a new account?</p>

<p>Video platforms and most websites don't even check that the person or action of clicking Terms Of Service agreement is performed by someone who is entitled to do so.</p>

<p>Could be under-age child.</p>

<p>Could be the cat walking on the keyboard.</p>

<p>It is very unclear who or what has been banned.
It is not even sure that the ban decision has been performed or even reviewed or approved by a human with legal entitlement to do so.
Most such services just use algorithms and very occasionally perform any human review by sub-contractors in countries with different Law.
I doubt some contractor in India is legally entitled to act by say US State or Federal laws for a company that can not even prove the account they ban or deny pertains to a citizen of the US that is of legal age to accept agreements.</p>
