While political pundits debate Jeff Sessions fate, a potentially monumental court case, bearing the Attorney General’s name, is on deck. At its core, Sandvig v. Sessions is a terms of service case that explores the intersection of contractual power and research methodology in the digital age.
Colloquially speaking, the case is an epic conundrum. Ultimately, if the claimant wins, it could open the door for companies using data any way they want, without securing permission. If the defendant wins, then researchers may not be able to conduct societal improvement studies.
The Case Basics
Plaintiff: ACLU and First Look (the publishers of The Intercept) — a.k.a., Sandvig.
Defendant: The United States Government — a.k.a., Sessions.
Law at Issue: The Computer Fraud and Abuse Act
Gravamen: Should certain parties be allowed to break website terms of service agreements?
In 1986, politicians passed a vague bill. Dubbed the Computer Fraud and Abuse Act, according to urban legend, the statute was a response to worries sparked by that other Matthew Broderick cult classic, War Games. That’s right; for a hot minute back in the 1980s, “hackers” leapfrogged “drugs” and reigned as Public Enemy #1.
Basically, the CFAA made it illegal to access digital networks “exceeding your authorization.” Or, to put it another way, the CFAA made it a felony to access computers (and virtual systems) without permission. Policy makers were certain that the law would halt hacking in its tracks.
But of course that didn’t work, because hackers developed cloaking techniques and breaches continued unabated. The CFAA quickly morphed into a de-fanged but dangerous tool used to punish harmless hobbyists and hyper-curious students.
In 2016, the ACLU joined forces with the publisher First Look to sue the United States over the CFAA. Essentially, researchers working with First Look wanted to conduct online discrimination studies. But in order to do that, they needed to create fake profiles on various websites.
The rub? Creating fake accounts and profiles is almost always against websites’ terms of service agreements.
So, to remove the hurdle, First Look and the ACLU sued, arguing that the CFAA was overly broad and that researchers should be allowed to break terms of service agreements.
As is typical in these types of cases, the government moved to dismiss the case; the court said it could continue.
Potential Outcomes: Will It Affect Terms of Service Law?
Sandvig v. Sessions is a tricky case without a “good” answer. If the claimant, whose desire to ignore the service agreement is fueled by noble intentions, wins, then the ruling creates a legal loophole for companies like Cambridge Analytica that, arguably, are using data for less-than-admirable purposes. If the U.S. government wins, the archaic CFAA law will remain in place and website users that violate websites’ rules could be subject to severe legal penalties.
Connect With A Terms of Service Lawyer
Lately, terms of service issues are at the center of business and Internet law. Compliance should be a priority for every company and website — not only with U.S. state and federal laws, but also with certain international statutes, like the GDPR.
Get in touch today with any CFAA legal questions or other Internet law matters. The consultation is on us.
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