[Air-L] Terms of Service not legally binding?

[Casey Lynn Fiesler]

Yes, this is correct. The case hasn’t been decided yet, but survived a motion to dismiss, and is moving forward mostly on first amendment grounds.

I also just want to point out that this case is specifically about the application of the CFAA to TOS violations. If they are successful, it might mean that such an action wouldn’t be criminal under the CFAA, but that doesn’t mean that contract law couldn’t apply. (There’s also a chance that the case could be pretty narrowly construed and might not apply broadly to all kinds of research. :-\ )

Casey

> On Apr 7, 2018, at 10:31 AM, Jeremy Foote <jdfoote1 at gmail.com> wrote:
> 
> Hi Charles,
> 
> You are probably referring to Christian Sandvig et al.'s case (
> https://www.aclu.org/news/judge-allows-aclu-case-challenging-law-preventing-studies-big-data-discrimination-proceed
> )
> 
> IANAL, but as far as I can tell the recent ruling allowed the case to go
> forward but it hasn't been decided yet.
> 
> Best,
> Jeremy
> 
> On Sat, Apr 7, 2018 at 1:51 AM, Charles M. Ess <c.m.ess at media.uio.no> wrote:
> 
>> Dear colleagues,
>> 
>> With apologies for spamming the lists - on behalf of both a student
>> project and our development of further refinements in internet research
>> ethics I'd like to ask the following.
>> 
>> I've heard somewhere recently that a U.S. court has ruled that Terms of
>> Service are not necessarily legally binding.
>> If anyone can forward more exact details of the ruling, I'd be very
>> grateful indeed.
>> 
>> Why? There is considerable discussion regarding the creation of fake
>> profiles as part of research into social media, algorithms, etc.  I have
>> the impression that this has become common practice, and this ruling may
>> give some direct and/or indirect support to arguments for such a practice.
>> (With important caveats, generally a good thing in my view, FWIW.)
>> 
>> At the same time, however, Norwegian law and thereby research ethics, as a
>> start, tend to be considerably more strict than the U.S. (and even, in some
>> instances, the E.U.).  I would like to figure out the differences and
>> resulting nuances in the implications for research ethics - both for the
>> sake of the general example and for an MA student project that I have the
>> pleasure of supervising.
>> 
>> Many thanks in advance for any tips and suggestions.
>> 
>> All best,
>> - charles ess
>> 
>> --
>> Professor in Media Studies
>> Department of Media and Communication
>> University of Oslo
>> <http://www.hf.uio.no/imk/english/people/aca/charlees/index.html>
>> 
>> Postboks 1093
>> Blindern 0317
>> Oslo, Norway
>> c.m.ess at media.uio.no
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