So far, violating a commercial terms of service is a matter of civil law. The penalties are likely to be monetary damages, and the standard of judgment is "a preponderance of the evidence". If Facebook gets their way, it will be a criminal offense, where the standard of judgment is "beyond a reasonable doubt" and the cops can come to your door with hand cuffs.
The Electronic Frontier Foundation (EFF) notes on its blog:
In its suit against Power Ventures, Facebook claims that the tool violates criminal law because Facebook's terms of service ban users from accessing their information through "automated means."
Er, isn't using a computer "automated means"? What about using a Perl script and a cron job to update one's facebook account? How about using a front end for several social networking sites, like gwibber, found inter alia on Ubuntu 10.4 "good buddy"? Never mind that Facebook supplies a means of automating access through its API.
But that's a mere cavail. The EFF continues:
This is not an esoteric business issue, because the legal theories Facebook is pushing forward would make it a crime not to comply with terms of service.
The EEF's amicus brief in the case argues:
Amicus believes that merely providing a tool to assist an authorized user in accessing his or her own data in a novel manner cannot and should not form the basis for criminal liability. To hold otherwise, as Facebook urges this Court to do, will create a massive expansion of the scope of California criminal law, hinging liability on arbitrary and often confusing terms chosen by websites in the contracts of adhesion they present to users or in their cease and desist letters, thus giving these private parties immense power to decide when criminal liability attaches. This creates both legal uncertainty and the risk of capricious enforcement.
Exactly so.
Anyone can write a cease and desist letter. Sending one does not create any criminal liability. It is at most a threat to sue, i.e. a threat of civil action.
Facebook argues that it is criminal for Power to continue to scrape Facebook's web site because Facebook sent a cease and desist letter to Power. But it isn't Power using the "automated means" to access the user data, it is Power's end users. Has Facebook sent a cease and desist letter to Power's users? I suspect not.
Not that I need one, but this seems to me to be a sufficient reason to avoid using Facebook.
Thanks to WendyMcElroy.com for bringing this issue to my attention.