Newyorkbrad wrote:
The other day, I blocked a banned user who was socking around his ban through the latest in a series of IPs and throw-away account. Exasperated, instead of just labeling the block "sockpuppetry" or "ban evasion" or the like, I wrote in the block log and on the talkpage exactly what I was thinking: "banned user unlawfully accessing and interfering with the site in breach of the terms of use." I've been asked to explain the thinking behind that summary, which I am happy to do.
This being a lawyer's post, it comes with several disclaimers. The first is that I didn't come to Wikipedia to be a lawyer. Thinking about the law should (apart from articles about law and lawyers and judges, and with occasional exceptions for copyright issues) be remote from the Wikipedia experience of 99.9% of editors. The second disclaimer is that I haven't discussed anything in this post with anyone in the Wikimedia Foundation office; the Foundation has a highly qualified legal staff, but I have no affiliation with them, and am simply a volunteer like most of the rest of you. (I'm also not writing in my capacity as either an administrator or an arbitrator on this project.)
With all that being said ... does a banned editor who continues to edit, in breach of a ban imposed by the community or its dispute-resolution procedures, thereby act in a legally impermissible manner?
Merely breaching a website's internal rules or "terms of use" (TOS), without more, usually does not give rise to either criminal or statutory civil liability under statutes such as the US Computer Fraud and Abuse Act, although it may be civilly actionable by the website owner under other theories. There are several cases (some briefly summarized here) declining to find liability for "computer abuse" where courts believed that prosecutors or plaintiffs sought to overextend the concept, including to TOS violations.
The best-known of these cases is probably United States v. Drew. The facts of this case are sad. Two young teenage girls quarreled, and one asked her mother, Lori Drew, to help find out what her former friend was saying about her. The mother created a Myspace account under the fictitious name of a nonexistent 16-year-old boy, who purported to flirt with the girl for some time, but then abruptly told her that the world would be a better place without her&mdash. Heartbroken, the girl hanged herself. After state prosecutors investigated but decided there was nothing they could do, the federal prosecutor indicted Drew for (among other things) violating the CFAA by accessing Myspace's computers "in excess of authorization." The basis for this charge was that Drew had breached Myspace's TOS by creating a fictitious account, which according to the MySpace TOS is not allowed. The jury convicted on this count, but the District Court reversed and dismissed the charge, on the ground that a reasonable person would not expect a simple violation of the fine print in a website's TOS to constitute a crime.
Another interesting precedent in this area will be made any day now by the New York Court of Appeals (the state's highest court) in People v. Golb. Raphael Golb is the son of Norman Golb, a scholar who espouses a particular theory as to the origin of the Dead Sea Scrolls. More established scholarly rivals of Norman Golb, including a professor named Lawrence Schiffman, support a different theory. Over the course of several months in 2008, Raphael Golb signed onto computers in the library of New York University (which as an alumnus he was permitted to use), and sent hundreds of e-mails accusing Schiffman and others of plagiarizing Norman Golb's work and denying Golb credit to which he was entitled. Most troubling, Golb created Gmail accounts in Schiffman's and some other targets' names, and sent dozens of e-mails in which (for example) Schiffman purportedly confessed and admitted to plagiarizing from Norman Golb.
Raphael Golb was indicted and convicted for numerous crimes under New York State law, including multiple counts of identity theft, criminal impersonation, forgery, "aggravated harassment," and one count of unauthorized use of a computer. The Appellate Division, First Department affirmed all but one of the convictions in this opinion. Among other things, the court rejected Golb's First Amendment challenges to his convictions, finding that Golb acted with criminal intent and that his e-mails could not properly be characterized as "satiric hoaxes or pranks." The crux of the decision was that "Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails. The First Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person."
The Court of Appeals granted Golb leave to appeal and heard oral argument on March 25. Anyone interested in computer law should stop reading this right now and take the time to read the transcript or, better still watch and listen to the argument. It's a fascinating 40-minute discussion (with Ron Kuby appearing for Golb), fully accessible to non-lawyers. The questioning, particularly by Judge Smith and Chief Judge Lippman, raised a host of cutting-edge issues in this field: the overbreadth of the harassment statute (see Volokh Conspiracy post here); the availability or not of a parody defense; and (the driest issue but the one relevant here), whether a person is guilty of "unauthorized use of a computer" under New York law where he was, in fact, authorized to use the computer, albeit not for the specific purpose he wound up using it for. Is it really the case, the judges asked the prosecutor, that if an employee has the employer's permission to use the computer for work purposes only but signs onto Facebook, the employee has committed a crime? The prosecutor's answer was yes. The court's answer is going to be no. (The New York statute criminalizes "unauthorized" use of a computer but not use "in excess of authorization," and in that respect is narrower than its federal counterpart, so this will not become a direct CFAA precedent, but depending on how the court writes the opinion, it may still be instructive.)
So, merely socking around a ban, by itself, does not seem not to violate the statute. And this is as it should be. No one wants a system where every frustrated editor who socks around a block thereby becomes a criminal, so it's good that neither the WMF TOS nor the statute seems to contemplate such a result.
Are there, however, some limits? Does there come a point at which screwing around with Wikipedia actually crosses the line into legally impermissible behavior? Frankly, my strong hope is that we never need to find out the answer in a court decision. But if someone does press hard enough, he or she may find that the answer is yes.
Suppose a user is banned. (I don't plan to debate here the bona fides of the ban in question, although it was fully justified; one small piece of the saga can be found in my talkpage archive here, where the user said he was scrambling his password and leaving Wikipedia.) And suppose the user continues to post after the ban has taken effect. And suppose the user continues to post on-wiki with the avowed purpose of disrupting the site, voluntarily describing his behavior in words like these:
"I have been creating accounts since September in anticipation. They just blocked about 60, but thats only the last few days. All I wanted to do was help the project and they threw me out so now I will be the most prolific vandal, troll and sockmaster in Wikipedia history."
"So now if they want me to be a sockmaster, then fine, I'll pursue that with just as much enthusiasm as I did editing. I know they'll catch me eventually but in the mean time I will be a drain on resources and divert them from being able to do anything else."
"[O]nly about half those 60+ [blocked accounts] are me. The rest were just helpless well meaning editors. Same with the ones [administrator 1] blocked and the IP that [admin 2] accused of being me. They don't all have to be me, all they have to do is be caught in the path. I don't really care anymore if Wikipedia likes me or not, they can delete every edit I did. They didn't want me there anyway and they made that clear as crystal. So, since they didn't want me there, I'll have some fun. And I haven't even tried to be a sockmaster yet. Pretty soon it will be 260+ accounts."
"Since my help wasn't wanted, I'll just distract them with socking and trolling as I find the time. Days or weeks might go by and it may come in waves but it'll be fun."
"I doubt they'll tremble of fear me and it really just amounts to a waste of time. But since they didn't want me to help, I'll just be a pain in the ass and a distraction. In the process though a lot of innocent editors will be blocked (several already have), time will be distracted form the project and I'll have some fun. The only way they'll keep me away is if they range block the whole t-mobile and Verison Fios networks. I doubt they have the desire to do that."
"Case in point, [admin 1] recently got so annoyed with my pings he disabled the Echo pings. Others probably did as well but didn't post it. That means they are disabling functionality because of me. Good! They have continued to block and accuse editors who aren't me or my friends as being me. Largely because the checkuser app is crap. More good news! And that's after only 24 hours of being banned. Imagine the impact after a month. Maybe they ban editing from the Verizon network or t-mobile. Its hard to say what the long term effects will be, but its not going to be pleasant."
"In less than 48 hours I have gotten 2 range blocks for Verizon Fios which means a lot of people coming from 172 or 208 will need to get an IPblock exemption to edit in which case most of them will assume its me and deny it. 1 for me, 0 for WP. I have also caused several users to turn off pings (Echo) and distracted several users. Childish perhaps but I am having fun."
"Well I am up to 88 socks and that's not even counting the ones [admin 3] identified here which are mostly mine (but there are a couple that aren't). It also doesn't include my Bots Kumi-taskbot or A bot called bob so including those that pushes me over a 100. Plus the folks who turned of Echo pings, the range blocks of 138, 172 and 208 preventing editing to a large number of Verizon Fios and Us Navy users and the editors who weren't me that got blocked as collateral damage or several of my friends who have joined in. Not a bad start for 48 hours of naughtiness. Can't wait to get to the month mark."
... and that's just from the first two days, and it continues in that vein for week after week. (It's not a good use of my time to hunt down more diffs from on-wiki to go with those quotes from Wikipediocracy, but anyone who's followed this saga knows that I could come up with dozens of them, not to mention e-mails.)
It is not the case that any website is helpless to seek a legal remedy against a user who insists that he is going to continue to edit without permission with the admittedly foreseeable and intended effect of (1) causing the site administrators to have to spend the time dealing with his unwanted edits, and (2) triggering rangeblocks and thus interfering with access to the site by other users with whom he is unconnected.
I can readily fashion an argument that this type of conduct is against the law. I will not advance that argument in detail here, because to the best of my knowledge it has not been tested in application (I'd be quite interested if anyone's aware of any precedents; the DDOS cases may be the closest, but I acknowledge that this isn't that), and because there are far more direct means of dealing with the problem than invoking a statute. (The Wikipediocracy thread on this topic, in particular, has completely missed that "unlawful" can refer to civil as well as criminal law.)
I very, very much hope that all of this will remain in the realm of academic discussion. And in that vein, I'm going to take off my lawyer hat and remind the banned user in question, and everyone else who is reading here, that almost all of us came to Wikipedia as a hobby. And ... when a hobby stops being fun for you ... or when for whatever reason you're asked to leave the club ... the rational thing to do is to step away and find another hobby. You don't stick around and complain that everyone else is doing a lousy job enjoying your old hobby ... and you certainly don't destroy the clubhouse or scrawl graffiti on it and leave a mess for everyone else to clean up. And you especially don't outlast your welcome to the point that even one of the notoriously most relaxed and lenient administrators on the site, who is not especially hard-assed even against banned users quietly returning and doing good work (those who doubt that should carefully review this thread) is thinking, even fleetingly and metaphorically, about calling a cop on you, or to wonder whatever happened to the old Abuse response process, a page I had hoped never even to have to read.
Kumioko, I'm sorry you are so disaffected with Wikipedia. You had high hopes for the project and for your role in it, and for whatever reason (this isn't the place to find fault), your hopes were dashed. But you really, really, really need to step away now. Goodbye. Newyorkbrad 4:35 pm, 21 April, 2014 (UTC−7)
(Could hardly be worst taste, but someone will do it.)
Well played.
