ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Thursday, September 22, 2011

Jail time for violating a browsewrap??

In connection with a book I am currently writing on online agreements, I've been thinking a lot (perhaps too much?) about "terms of use" or "browsewrap" agreements. Law professors love to hate 'wrap agreements and bemoan the lack of assent associated with them. But to what extent are these so-called contracts actually problematic? One potential problem is that there are other laws that may interact with and exaggerate the unfairness of calling these terms "contracts." A recent op-ed by George Washington law professor Orin Kerr touches upon one such law, the Computer Fraud and Abuse Act (CFAA). The CFAA was aimed at computer hacking and makes a misdemeanor any computer use that "exceeds authorized access." That's where the lowly, sneaky browsewrap steps in. According to Kerr, "the Justice Department believes that it applies incredibly broadly to include terms of use violations". In other words, if you exceed a website's terms of use - on Facebook, this could mean you failed to keep your contact information "accurate and up-to-date"-- you have exceeded your authorization to use the site. And you haven't only breached a "contract", but you may have committed a crime...?!


Commentary, Current Affairs, E-commerce, Legislation, Web/Tech | Permalink

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