Hearst Revises TOS, Protects Teens From Fraud Prosecution

Hearst Corp. changed the online terms of service for publications like Seventeen, CosmoGirl and the Houston Chronicle this week, after the digital rights group Electronic Frontier Foundation pointed out that the prior terms of service potentially transformed teenage readers into criminals.

That's because the former terms banned people under 18 from accessing the magazines' sites. The EFF on Wednesday called attention to these prohibitions, while noting that some federal prosecutors have filed computer fraud charges against people who violate sites' terms of use.

“In multiple cases the DOJ has taken the position that a violation of a website’s Terms of Service or an employer’s Terms of Use policy can be treated as a criminal act,” the EFF wrote in a blog post. “In the DOJ’s world, ... anyone under 18 who reads a Hearst newspaper online could hypothetically face jail time.”

Hearst's new terms of services no longer have that age restriction. Hearst wasn't the only company called out by the EFF. Other publications to say they restrict minors include the U-T San Diego  and the Miami Herald, the EFF reported.

Obviously, the companies weren't really trying to keep teen readers off their sites -- especially since teens are the target audience at magazines like Seventeen and CosmoGirl. More likely, overly cautious legal departments advised the publications that only adults could enter into contracts, so the terms of use should specify that users must be at least 18.

But the existence of that clause means that federal authorities could seek to indict teens simply for reading the publications. Of course, the odds that a federal prosecutor would attempt to do so are remote. And the odds of obtaining a conviction hover at around zero -- especially given that teens have a First Amendment right to access news and information.

But the problem with the Computer Fraud and Abuse Act is that the law is so sweeping, it allows for just this sort of prosecution. That's because the law makes it a crime for users to exceed their “authorized access” to a site.

True, some courts, including the influential 9th Circuit Court of Appeals, have tried to limit the law's reach by stating that violating a private company's terms of service doesn't in itself constitute computer fraud. But as long as the computer fraud law is on the books, prosecutors can continue to attempt to bring questionable computer fraud cases. That's one of the reasons the Computer Fraud and Abuse Act is considered the worst law in technology.

In recent months, several lawmakers have introduced legislation to amend the computer fraud law by making clear that people shouldn't be prosecuted for ignoring a private company's terms of use. Hopefully Congress will fix the measure soon.

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