Corporate welfare alert: Don't criminalize internet terms-of-service violations

There's a bill up in the House Criminal Jurisprudence today, HB 1064 by Luna Hernandez, which would criminalize accessing an open wi-fi connection without express permission - the new crime would be a Class B misdemeanor, normally, and a state jail felony if the open wi-fi belongs to a government entity. The Senate companion was amended in a way that's equally disturbing, SB 249 by Patrick, is over from the upper chamber and has been amended in ways that apply the same penalties for accessing any computer network in violations of " a contractual agreement," which in practice means a company's "terms of service" agreement.

These terms-of-service agreements have become a joke and criminalizing their violation would create a bevy of pointless prosecutions. A body of contract law already exists; there's no need to use criminal law to bolster it, especially when these "contracts" are so problematic. How many times have you agreed to a site's "terms of service" with just a click of a button that says "Agree" without reading the voluminous, small-print legalese that accompanies it? Everybody has; nobody reads those things.

In 2010, just to reinforce that point, a British gaming firm began satirically including in their "terms of service agreements" language that declared users agreed to literally sell their souls. The agreement read:

By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.

Some 7,500 people clicked "Agree" before the company revealed the joke and removed the language. Reported Fox News, "The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents." That's precisely why criminalizing violations of terms of service is bad public policy.

As filed, Hernandez's bill that's up today criminalizes those who access someone else's computer network to "obtain a benefit." which would include accessing someone's open wi-fi network. As Grits wrote when the Senate bill was heard, 'Since accessing the internet for free is a benefit and effective consent is defined in the penal code as 'consent by a person legally authorized to act for the owner,' on its face accessing someone's wi-fi without their express permission would be a crime. Personally, I consider leaving wi-fi unsecured simply common courtesy, though internet service providers would like to restrict it for their own commercial benefit. As far as I'm concerned, criminalizing a neighbor using my wi-fi is akin to criminalizing their reading by my porch light. People can always restrict access if it bothers them." This bill is less about protection of the public and more about using law enforcement as corporate welfare to enforce terms-of-service agreements with wireless internet providers.

This is a bad bill. Too many unintended consequences would arise from the House version and the Senate version, which explicitly criminalizes terms of service violations, improperly uses criminal law to enforce private contracts. The legislation is a classic case of overcriminalization, usurping civil and contract law by imposing criminal penalties, including jail time, and shifting the enforcement burden onto the justice system. Both the House and Senate versions and should be roundly rejected.