[cap-talk] bundling designation and authority

Ian G iang at systemics.com
Thu Oct 13 10:08:02 EDT 2005

Sandro Magi wrote:

> The links that were presented express DEC's intention to grant access to 
> only these URLs.
> The defendant, being a computer expert, knew DEC's intention that only 
> these URLs were authorized.

But here is a group of computer experts
that argue that this intention is not
clear.  To be honest, I never thought
that adjusting a link would be "unauthorised"
and now that it has been stated, it's got me
worried - am I still allowed to cut and paste
a link and send it to a friend?  What happens
if it has a cookie in it that identifies me,
have I now done an Unauthorised Access?

We are in a time where the notion of
"unauthorised link" is asserted by some
but not widely known by the user base.

It may well be that the courts ramrod this
through and make it "widely known" but that
may well be the worst result.

> The defendant knowingly attempt to access unauthorized URLs anyway.
> If you know full well that I don't want trespassers, yet you trespass 
> anyway, are you not guilty? The law attempts as far as possible to reuse 
> precedent where it makes sense. Seems to me, the conclusion follows 
> directly from the same sort of logic surrounding private property.

In private property, there is a clear test of
warning *and* effort.  Signs and fences have
to be placed and even there if someone enters,
there is no crime committed until after a further
warning has been given *and* the person has
had sufficient time to remove themselves.

(That's my understanding, but IANAL...)

The tests of private property are a good
analogy and good logic because they stop the
next step which is prosecution or violence
being used on people making innocent mistakes.
We do not need to walk the streets in mortal
fear of being shot because we know that the
law always gives us fair warning and fair
time to correct any inadvertant mistake.

The analogy argues the case that the ruling
was wrong because there was no warning.

> Indeed. But as I explained above, being a computer expert the defendant 
> knew what he was doing, and knew that the URL might grant him 
> information not originally intended to be granted to users. This is a 
> violation of the law, as quoted in prior e-mails, regardless.

Well, again, we need to see where this "original
intent" of granting information is.

And we need to extract ourselves from
resting on the crutch of "he was an expert therefore
should have known better" as that then leads to the
worse situation of penalising experts but "allowing"
users to do one thing but "experts" to do another.

(As a matter of principle, saying that he was an
expert would need to be shown, in law.  That's actually
a lot harder than it seems as there is no widely
recognised test, only wannabe tests.  And as we
have all been kindly avoiding saying, the notion
that ../../../ tells us anything about a website
doesn't really speak to the quality of expert....)


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