[fxtentacle]

Of course, Facebook wants to make it sound like scraping is illegal, when it generally isn't.

But account hijacking and mass-creation of accounts just to access private pages are clear violations of the Facebook and Instagram ToS, so they surely can sue for that.

[Raed667]

Violation of ToS does not mean a violation of the law.

[closewith]

Most law suits aren't due to breaches of the law, but breaches of contract. Whether terms of service constitute an enforceable contact is another matter.

[adamsmith143]

ToS have been around for decades, surely this question is settled by now?

[marlowe221]

Former attorney turned software developer here!

Nope, it's not a settled question in the way that I think you mean. Each ToS is different so each would be subject to individual legal analysis in court on its own terms.

Questions would include whether the ToS is unconscionable, whether the terms violate laws of the locality/nation, and so forth.

It's the same with traditional contracts - the fact that contracts have been around for hundreds (maybe thousands) of years doesn't mean much if you and I create a brand new one between us. Our contract's specific terms (and events/actions between us as a result) would be the issue in court.

[kaivi]

Why can't FB simply include a clause like "No kind of automated scraping is allowed, except for search engines in robots.txt"? This would save them so much time in court, arguing over the use of fake accounts which should really be irrelevant.

[closewith]

It's not clear that clause would be enforceable. Scraping has been found to be lawful in many jurisdictions, including the US, even without the consent of the host.

[adamsmith143]

So even the general question of "Whether terms of service constitute an enforceable contract" depends on each individual ToS?

[marlowe221]

Congress or a state legislature could pass a law that says "No terms of service are ever enforceable" but to my knowledge no one has done that.

So, under the current state of the law whether or not a contract is enforceable depends entirely on what the terms in that specific contract are.

Unfortunately, this is yet another instance where the law has failed to keep up with technology. Contract laws (at least in the USA) date back long before anyone ever dreamed up the idea of a EULA or ToS. Our laws contemplate two or more parties with roughly equal bargaining power sitting down and hashing things out, and go from there.

Laws based on that assumption are a pretty poor fit for a world filled with EULAs and ToS but it's what we are stuck with at the moment.

[jhoelzel]

if a bot creates the account, who breaches the contract?

[sneak]

The person who ran the bot. Programs do not have agency, they are just tools.

That's like saying "If the gun fires the bullet, who is liable for murder?" It's a silly question.

[CSMastermind]

> That's like saying "If the gun fires the bullet, who is liable for murder?" It's a silly question.

I don't know I've seen several people unironically argue that it should be the gun's manufacturer.

[lesuorac]

Probably should also add "successfully", there's a reason NYPD had/has guns that require 12 pounds of force to pull the trigger (instead of a normal ~5 lbs).

[bee_rider]

Software that exclusively has illegitimate uses has been shut down. Whether we agree that it is a good argument or not, it is definitely an argument people have made (that some types of guns are mainly designed to hurt people).

With software of course it is a little complicated because:

* it can be produced really easily in a distributed fashion over the internet by anonymous people in many jurisdictions, so there isn't always an obvious company or entity to sue

* most automation tools can be repurposed for malicious use (nobody would sue John Deere because their tractors can be armored and turned into pseudo-tank things)

[stonemetal12]

That is why they are suing rather than pressing charges. When someone steals your car you don't sue them you press charges. When someone doesn't uphold their end of a contract you don't press charges you sue for breach of contract.

[compsciphd]

in reality, you as an individual can't press charges. Only the state can. And many times the state chooses not to. You can sue in civil court, but individuals can't bring cases in criminal court.

[onionisafruit]

You are confusing pressing charges and indictment. Pressing charges just means you accuse somebody of a crime and “press” the prosecutor to indict them. So the state does have the ultimate say on who is prosecuted, but that doesn’t mean you can’t press charges.

[closewith]

Many countries do have the concept of private criminal prosecutions.

[sneak]

"pressing charges" isn't a thing.

[stonemetal12]

As far as I am aware it isn't a specific thing, but a general catchall term for going through the process of filing a criminal complaint, and seeing it through to completion. Maybe there is better words for it but "pressing charges" is what they use on TV so it is top of mind.

In general I meant there is a difference between criminal and civil law, and suing generally refers to civil not criminal law.

[onionisafruit]

It is a thing. In America pressing charges is when you accuse somebody of a crime and ask a prosecutor to bring criminal charges against them.

[sneak]

Prosecutors exclusively decide who is charged. No charges can be "pressed" by a victim.

[onionisafruit]

Yes, in most cases it is the prosecutor's discretion whether to bring a case to a grand jury, but that isn't what pressing charges is. See Merriam Webster's definition[0].

[0] https://www.merriam-webster.com/dictionary/press%20charges

[CoastalCoder]

I don't think I know the answer, but I'm curious:

Does violating a website's TOS meant your accessing it beyond your authority, making it a violation of the US's Computer Fraud and Abuse Act?

[tumult]

Not a violation. Decided by Supreme Court in 2021. Van Buren vs. United States. It was a big deal.

[zja]

Violating TOS no; Gaining access beyond your authority maybe https://www.eff.org/deeplinks/2010/07/court-violating-terms-...

[CoastalCoder]

I was assuming that in this case, a person's authority was specifically granted by the ToS.

I wondered if the interplay of those two concepts muddied the waters.

[danaris]

I don't have a source for this, but my recollection is that this has been successfully argued by a couple of companies—but then an appeals court found very firmly that it was not the case.

Essentially, having that be true would mean that any given website could create whole new classes of criminal behavior.

[zinekeller]

> having that be true would mean that any given website could create whole new classes of criminal behavior.

While this is true, reading the lawsuit it is clear that Meta is suing in civil court, so maybe they're trying to enforce their contract, especially their automated collection ToS (https://www.facebook.com/apps/site_scraping_tos_terms.php)?

[dementiapatien]

Since when do you get sued for breaching TOS?

[curiousllama]

Since you start a business on the violation.

"Since when do I get sued for taking too many free samples from Costco?" -> "Since you started taking millions of them to resell"

[jhoelzel]

im not sure on american law, but if you give me those samples willingly i can do whatever i want with them.

Actually this is the reason why many products come with the lable "not for resale" but i have yet to find somebody who cares about it :D

[treis]

>give me those samples willingly

Doesn't seem like Facebook is giving them willingly.

[thallium205]

Since when do you get sued for breaching a contract? When the offense is worth it.

[golemotron]

You can get sued for anything that causes harm.

Relevant life lesson: don't do things to people with money that they might perceive as harm.

Corollary: Being sued is as much punishment as losing a suit for most people.

[contravariant]

I don't know but it's at least been that way since Aaron Swartz did it I suppose.