[Wikimedia-l] Block evasion might be a federal offense

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[Wikimedia-l] Block evasion might be a federal offense

Martijn Hoekstra
http://feedly.com/k/14WeLcY

I wish I was grossly misrepresenting the situation here. If I am, please do
set me straight.
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Re: [Wikimedia-l] Block evasion might be a federal offense

Fred Bauder-2
> http://feedly.com/k/14WeLcY
>
> I wish I was grossly misrepresenting the situation here. If I am, please
> do
> set me straight.

You're not wrong, but getting the attention of a federal prosecutor would
be easier for jaywalking in a National Park. It applies only to extreme
situations.

Fred


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Re: [Wikimedia-l] Block evasion might be a federal offense

Nathan Awrich
On Mon, Aug 19, 2013 at 2:55 PM, Fred Bauder <[hidden email]> wrote:

>> http://feedly.com/k/14WeLcY
>>
>> I wish I was grossly misrepresenting the situation here. If I am, please
>> do
>> set me straight.
>
> You're not wrong, but getting the attention of a federal prosecutor would
> be easier for jaywalking in a National Park. It applies only to extreme
> situations.
>
> Fred
>
>

I think you misread this, Fred. The case (Craigslist v. 3taps) is a
private entity suing another[1] for relief from violations of the
CFAA[2], and the article is about a recent ruling in that case.[3] The
Wikimedia analog might be the WMF suing Grawp (or similar) for
repeated violations of technological barriers (and other means) of
revoking access to the site. The ruling seems to establish that
Wikimedia is entitled to legally revoke access on a case by case
basis, and that an IP ban is a sufficient technological barrier to
meet the standard. At least that is the apparent state of the law in
the Northern District of California, which incidentally includes San
Francisco (and the WMF).

[1]: http://www.scribd.com/document_downloads/100933709?extension=pdf&from=embed
[2]: http://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act
[3]: http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf

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Re: [Wikimedia-l] Block evasion might be a federal offense

Federico Leva (Nemo)
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Re: [Wikimedia-l] Block evasion might be a federal offense

Nathan Awrich
On Tue, Aug 20, 2013 at 5:59 PM, Federico Leva (Nemo)
<[hidden email]> wrote:
That is, frankly, a very different issue (in fact, other than
implicating the CFAA, could hardly be more different).

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Re: [Wikimedia-l] Block evasion might be a federal offense

Dan Rosenthal
An additional issue, if we're still talking CFAA's private right of action,
is where would the minimum damage requirements come from?

-Dan

Dan Rosenthal


On Tue, Aug 20, 2013 at 8:22 PM, Nathan <[hidden email]> wrote:

> On Tue, Aug 20, 2013 at 5:59 PM, Federico Leva (Nemo)
> <[hidden email]> wrote:
> > Discussed several times with no clear outcome.
> >
> http://lists.wikimedia.org/pipermail/wikimedia-l/2013-January/123678.html
> >
> > <
> https://meta.wikimedia.org/wiki/Talk:Terms_of_use/Archives/2011-10-06#WSJ_Op-Ed_.22Should_Faking_a_Name_on_Facebook_Be_a_Felony.3F.22
> >
> > <
> https://meta.wikimedia.org/wiki/Talk:Terms_of_use/Archives/2011-11-08#Is_this_enforceable.3F
> >
> > <
> https://meta.wikimedia.org/wiki/Talk:Terms_of_use/Archives/2011-12-13#Criminal_liability_for_breaching_the_TOU
> >
> >
> > Nemo
> >
> >
>
> That is, frankly, a very different issue (in fact, other than
> implicating the CFAA, could hardly be more different).
>
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Re: [Wikimedia-l] Block evasion might be a federal offense

Fred Bauder-2
We could hire expert staff to deal with serious socking by dangerous or
highly disruptive users. Their wages would be the damage.

Fred

> An additional issue, if we're still talking CFAA's private right of
> action,
> is where would the minimum damage requirements come from?
>
> -Dan
>
> Dan Rosenthal
>
>
> On Tue, Aug 20, 2013 at 8:22 PM, Nathan <[hidden email]> wrote:
>
>> On Tue, Aug 20, 2013 at 5:59 PM, Federico Leva (Nemo)
>> <[hidden email]> wrote:
>> > Discussed several times with no clear outcome.
>> >
>> http://lists.wikimedia.org/pipermail/wikimedia-l/2013-January/123678.html
>> >
>> > <
>> https://meta.wikimedia.org/wiki/Talk:Terms_of_use/Archives/2011-10-06#WSJ_Op-Ed_.22Should_Faking_a_Name_on_Facebook_Be_a_Felony.3F.22
>> >
>> > <
>> https://meta.wikimedia.org/wiki/Talk:Terms_of_use/Archives/2011-11-08#Is_this_enforceable.3F
>> >
>> > <
>> https://meta.wikimedia.org/wiki/Talk:Terms_of_use/Archives/2011-12-13#Criminal_liability_for_breaching_the_TOU
>> >
>> >
>> > Nemo
>> >
>> >
>>
>> That is, frankly, a very different issue (in fact, other than
>> implicating the CFAA, could hardly be more different).
>>
>> _______________________________________________
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>> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l,
>> <mailto:[hidden email]?subject=unsubscribe>
>>
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FT2
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Re: [Wikimedia-l] Block evasion might be a federal offense

FT2
In reply to this post by Nathan Awrich
One comment on the original link is worth some eyeballs:

*"If IP address blocking is a legally binding way of banning a user, does
that establish that an IP address must be considered 'personally
identifying information' for privacy policies and related purposes?"*

The logic seems solid (although my sketch wording could be legally and
logically tightened): -

Suppose a website blocks an IP which is used by the user known as "Alice".
Also suppose there is no other communication by which the user might
determine he/she (as an individual living person) has been forbidden to
access the site.  However one selects word definitions, one of two
situations probably exists:


   - *If the IP is "sufficiently clearly connected"  to the individual
   behind the Alice account*, then one can't simultaneously argue it's not
   personal identifying data. The court logic is that by setting a specific IP
   as blocked, the website owner is banning a specific legally identifiable
   individual (even if they don't know which exact person). It's also saying
   that a given individual in the wider world should know from the status of a
   specific IP (blocked or unblocked), whether they personally are forbidden
   or not forbidden to access a website (since absent knowledge that
   they individually are banned as an implication of the IP being blocked),
   they cannot be said to be aware actually or constructively that
   authorization is withdrawn, nor can they be in breach of a law that refers
   to "unauthorized" access which the user then "circumvented" in any manner.

   - *But if the IP is "insufficiently clearly connected" to the individual
   behind the "Alice" account*, then a block of the IP (absent other
   information) cannot be claimed to be a block for that user, since logically
   and legally, the user and website owner cannot have knowledge *from the
   existence of the block alone* (absent other data such as a letter or ban
   notice) that the block of that IP, is sufficiently clearly a block of a
   user, and is in fact also clearly a block of the operator of the "Alice"
   account. If the block is not clearly a block of the individual "Alice"
   operator, then changing IP cannot be wilfully evading a block of a person,
   since it's not determinable that the person was blocked.

   - *Finally, severing the IP and user* seems problematic as well. That is
   to say, one can argue against the binary choice by saying that the
*IPs*are blocked, but
   *individuals* aren't (and therefore the users are not identifiable but
   the IP blocks can be criminally circumvented even without any knowledge who
   they target). The problem is both commonsense and law. The law
*doesn't*forbid circumventing a block where the individual is
apparently authorized
   but the IP isn't. The law criminalizes specifically *"whoever . . .
   intentionally accesses a computer without authorization . . . and thereby
   obtains . . . information from any protected computer"* (see ruling)
   Does this legally mean *they* are unauthorized, or is it enough that *their
   means of access* is unauthorized even if they are allowed?

   *Example - *It's perfectly possible to be accessing a computer, fully
   authorized, but from an unauthorized place or connection. If Wikimedia IP
   blocks the entirety of my country to block some IP hopping vandal, and I
   use a proxy to edit, I haven't "accessed Wikimedia's servers without
   authorization". I would need to be unauthorized personally, not just
   unauthorized because I'm using an connection route that bypasses a block.
   A loose analogy might be that if my mother emails me from an IP range
   reported on RBL blacklists as a spam range, or phones me from the office of
   a spam phone call business, she isn't a "spammer" thereby.  And if my
   intention was to block a spammer, have I in fact notified my mother she is
   "unauthorized" to call or email, merely by the act of blocking the route
   that by chance she uses today? If she uses a different route (the phone in
   the next building) is that "circumvention"?

   So splitting IP from person seems to break commonsense.
   However odd the route, she inherits no unauthority (as a person) to
   communicate with me by her choice of communication route. It _would_ be
   different if I'd told her "do not call me, you are not welcome", but the
   question here is considering the effect of a block of one specific means
   of communication (by anybody) without any other notice identifying a
   specific person targeted. if that alone de-authorizes specific people but
   not other people, it personally identifies them and we're back to #1


The problem is that you often *can't* determine (from an IP block alone)
that you have been de-authorized for a website, unless an IP block can also*
*identify or legally indicate a specific individual.  I might be blocked on
a website for something I would never imagine to be a targeted block -
being the 5000th user, or using caps in my signature, and a particularly
hard-ass site admin. An intermediate router or DNS fault. Too many HTTP
requests in an hour. A browser agent string issue.

Rhetorical claims ("you'd know", "you ought to know") can't always
hold.  Example:
Suppose without knowing it and without advising me, Wikimedia blocked all
versions of Internet Explorer 6 (a known old problematic version) and I
tear my hair out, then try IE9 or Firefox instead, have I "circumvented" a
block? Or was it my browser version and not me that was blocked? What if I
find my current IE10 browser is blocked, can I know if switching to Chrome
would be a crime?  (What if I don't change my IP but I configure the user
agent so IE6 isn't blocked because it presents as IE8 or it's using
compatibility mode or strict mode?) There's little certainty of *having to
be *clear cut on what inability to reach a site means.

*Looking the other way at legal implications*, do internet users have a
specific legal obligation to ask why they cannot reach a website, when that
is the case, *in case by chance* it might be a block of a specific user,
and furthermore a block applying to themself specifically? Are they
negligent, wilful or reckless if they fail to do so, or if they just
rebooted their router to get a new IP ("because that's what the ISP says")?


FT2


On Tue, Aug 20, 2013 at 10:01 PM, Nathan <[hidden email]> wrote:

> On Mon, Aug 19, 2013 at 2:55 PM, Fred Bauder <[hidden email]>
> wrote:
> >> http://feedly.com/k/14WeLcY
> >>
> >> I wish I was grossly misrepresenting the situation here. If I am, please
> >> do
> >> set me straight.
> >
> > You're not wrong, but getting the attention of a federal prosecutor would
> > be easier for jaywalking in a National Park. It applies only to extreme
> > situations.
> >
> > Fred
> >
> >
>
> I think you misread this, Fred. The case (Craigslist v. 3taps) is a
> private entity suing another[1] for relief from violations of the
> CFAA[2], and the article is about a recent ruling in that case.[3] The
> Wikimedia analog might be the WMF suing Grawp (or similar) for
> repeated violations of technological barriers (and other means) of
> revoking access to the site. The ruling seems to establish that
> Wikimedia is entitled to legally revoke access on a case by case
> basis, and that an IP ban is a sufficient technological barrier to
> meet the standard. At least that is the apparent state of the law in
> the Northern District of California, which incidentally includes San
> Francisco (and the WMF).
>
> [1]:
> http://www.scribd.com/document_downloads/100933709?extension=pdf&from=embed
> [2]: http://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act
> [3]:
> http://www.volokh.com/wp-content/uploads/2013/08/Order-Denying-Renewed-Motion-to-Dismiss.pdf
>
> _______________________________________________
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> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/wikimedia-l,
> <mailto:[hidden email]?subject=unsubscribe>
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Re: [Wikimedia-l] Block evasion might be a federal offense

Peter Gervai-5
I am possibly failing to see the point of this part of the discussion.

On Wed, Aug 21, 2013 at 7:14 AM, FT2 <[hidden email]> wrote:

>    - *If the IP is "sufficiently clearly connected"  to the individual
>    behind the Alice account*,

It is not and possibly almost never will.

However I fail to see how people hanging around quite a long time mix
up a banned user with a technical measure to _enforce_ a ban (namely,
blocks). Everyone seem to talk about blocks while meaning to talk
about bans.

IP based blocks almost never personally targeted since people do not
have IP addresses: machines do. We (and everyone else) use IP based
access control to mechanically enforce things on people not following
the "rules" (eg stay away when instructed to). It is much more like
putting metal bars on a window looking onto a street with troubled
neighbourhood.

We reasonably expect ourselves to use IP bans to minimise collateral
damage but it's guaranteed to be there; people may change IP address
to evade the blocks (and therefore violate the bans); IP addresses may
be reassigned to the innocent and obviosuly there are vast armies of
NAT gateways, multiuser servers, proxies, TOR exit nodes and whatnot.
The cases where we can 100% assure that one IP or range equals to a
given person are practically nonexistant.

Because of that I fail to see any possible validity of "legally
binding action against a person based on an IP address".

Peter

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Re: [Wikimedia-l] Block evasion might be a federal offense

Martijn Hoekstra
On Aug 21, 2013 8:56 AM, "Peter Gervai" <[hidden email]> wrote:

>
> I am possibly failing to see the point of this part of the discussion.
>
> On Wed, Aug 21, 2013 at 7:14 AM, FT2 <[hidden email]> wrote:
>
> >    - *If the IP is "sufficiently clearly connected"  to the individual
> >    behind the Alice account*,
>
> It is not and possibly almost never will.
>
> However I fail to see how people hanging around quite a long time mix
> up a banned user with a technical measure to _enforce_ a ban (namely,
> blocks). Everyone seem to talk about blocks while meaning to talk
> about bans.
>
> IP based blocks almost never personally targeted since people do not
> have IP addresses: machines do. We (and everyone else) use IP based
> access control to mechanically enforce things on people not following
> the "rules" (eg stay away when instructed to). It is much more like
> putting metal bars on a window looking onto a street with troubled
> neighbourhood.
>
> We reasonably expect ourselves to use IP bans to minimise collateral
> damage but it's guaranteed to be there; people may change IP address
> to evade the blocks (and therefore violate the bans); IP addresses may
> be reassigned to the innocent and obviosuly there are vast armies of
> NAT gateways, multiuser servers, proxies, TOR exit nodes and whatnot.
> The cases where we can 100% assure that one IP or range equals to a
> given person are practically nonexistant.
>
> Because of that I fail to see any possible validity of "legally
> binding action against a person based on an IP address".
>
> Peter
>
>

This kind of discussion does not need to go in to how theoretically IP
addresses can be tied to individuals. We tell users to stop doing what they
are doing, analogous to the cease and desist in this case. Obviously a
warning to stop is not a cease and desist, but the court in this case
didn't appeal to the legal weight if a cease and desist, but used it as a
clear indication to tell the other party his actions are not allowed by the
site. To that end the two messages to stop are identical.

The block then is also identical. The account and/or underlying IP is
blocked. That is the technical impediment. The action that is now a federal
offense, it seems, is to defy the warning, by circumventing the block by
changing IP and/or account to do what you were told not to do on the
warning.

This alligns perfectly with the blocking policy and definition of block
evasion on at least the English Wikipedia, and probably other projects too.
It is completely different from the discussed change of browser to make use
of features not accessible to those browsers, and comparing that situation
only obfuscated the issue.

There is still the issue of evidence that the possible suspect is indeed
the person to whom the warning was sent. That however is a question of
proofing that a person broke the law, which might be far harder to answer
in the case of an individual editing Wikipedia on a residential IP
allocation than it is in the linked case. The central issue though, that it
seems block evasion is a federal offense, is not affected by the difficulty
in proving evidence for it. It is the question whether the evasion is a
crime that bothers me.

--Martijn

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Re: [Wikimedia-l] Block evasion might be a federal offense

Peter Gervai-5
On Wed, Aug 21, 2013 at 9:37 AM, Martijn Hoekstra
<[hidden email]> wrote:
> On Aug 21, 2013 8:56 AM, "Peter Gervai" <[hidden email]> wrote:

> The account and/or underlying IP is
> blocked. That is the technical impediment. The action that is now a federal
> offense, it seems, is to defy the warning, by circumventing the block by
> changing IP and/or account to do what you were told not to do on the
> warning.

Technicalities aside if I follow you right then it is a federal
offense to edit Wikipedia when you were told not to (eg. banned but
_not_ blocked). If that's the case the IP part of the discussion is
mainly irrelevant as one does not have to evade a block to violate the
ban.

> The central issue though, that it
> seems block evasion is a federal offense, is not affected by the difficulty
> in proving evidence for it. It is the question whether the evasion is a
> crime that bothers me.

[insert meetoo here]

g

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Re: [Wikimedia-l] Block evasion might be a federal offense

Martijn Hoekstra
On Wed, Aug 21, 2013 at 10:09 AM, Peter Gervai <[hidden email]> wrote:

> On Wed, Aug 21, 2013 at 9:37 AM, Martijn Hoekstra
> <[hidden email]> wrote:
> > On Aug 21, 2013 8:56 AM, "Peter Gervai" <[hidden email]> wrote:
>
> > The account and/or underlying IP is
> > blocked. That is the technical impediment. The action that is now a
> federal
> > offense, it seems, is to defy the warning, by circumventing the block by
> > changing IP and/or account to do what you were told not to do on the
> > warning.
>
> Technicalities aside if I follow you right then it is a federal
> offense to edit Wikipedia when you were told not to (eg. banned but
> _not_ blocked). If that's the case the IP part of the discussion is
> mainly irrelevant as one does not have to evade a block to violate the
> ban.
>

[insert IANAL disclaimer here]

No, the linked case (and I apologize for posting a feedly link[0], it links
to an ars article, I was on my phone at the time, but the link is good)
demonstrates that if there is a ban to violate, the technical evasion of
the block becomes a crime. Evading a block without an indication to stop
seems to be not a violation, nor is editing in defiance of a ban while no
block is present.  It is quite possible that a final warning could be
considered a ban, but that's straying a bit from the original case.

[0] the target for the original link was
http://arstechnica.com/tech-policy/2013/08/changing-ip-address-to-access-public-website-ruled-violation-of-us-law/



> > The central issue though, that it
> > seems block evasion is a federal offense, is not affected by the
> difficulty
> > in proving evidence for it. It is the question whether the evasion is a
> > crime that bothers me.
>
> [insert meetoo here]
>
> g
>
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Re: [Wikimedia-l] Block evasion might be a federal offense

Nathan Awrich
In reply to this post by Peter Gervai-5
On Wed, Aug 21, 2013 at 4:09 AM, Peter Gervai <[hidden email]> wrote:

> On Wed, Aug 21, 2013 at 9:37 AM, Martijn Hoekstra
> <[hidden email]> wrote:
>> On Aug 21, 2013 8:56 AM, "Peter Gervai" <[hidden email]> wrote:
>
>> The account and/or underlying IP is
>> blocked. That is the technical impediment. The action that is now a federal
>> offense, it seems, is to defy the warning, by circumventing the block by
>> changing IP and/or account to do what you were told not to do on the
>> warning.
>
> Technicalities aside if I follow you right then it is a federal
> offense to edit Wikipedia when you were told not to (eg. banned but
> _not_ blocked). If that's the case the IP part of the discussion is
> mainly irrelevant as one does not have to evade a block to violate the
> ban.
>
>> The central issue though, that it
>> seems block evasion is a federal offense, is not affected by the difficulty
>> in proving evidence for it. It is the question whether the evasion is a
>> crime that bothers me.
>
> [insert meetoo here]
>
> g
>

This is actually incorrect, as were some of your comments about the
irrelevance of IP blocks in your prior post. Have a look at some of
the links I posted earlier in the thread, I think the issues should
become more clear.

To FT2's comments - it's not actually true that the IP ban, or a cease
and desist, have to be specific to a person. In fact in the linked
case, they are blanket to a company. I see no particular reason why
the same reasoning can't be applied to a school, or a church. A
geographic area is probably harder to support. Additionally, we
generally give warnings, and block accounts. For the most egregious
harassment, the only instances I can see this ever coming into play
for Wikimedia, virtually every perpetrator has a long history of
blocked user accounts. I think that makes the debate over the
"personally identifying nature" of IPs irrelevant for this discussion.

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Re: [Wikimedia-l] Block evasion might be a federal offense

Fred Bauder-2
> On Wed, Aug 21, 2013 at 4:09 AM, Peter Gervai <[hidden email]> wrote:
>> On Wed, Aug 21, 2013 at 9:37 AM, Martijn Hoekstra
>> <[hidden email]> wrote:
>>> On Aug 21, 2013 8:56 AM, "Peter Gervai" <[hidden email]> wrote:
>>
>>> The account and/or underlying IP is
>>> blocked. That is the technical impediment. The action that is now a
>>> federal
>>> offense, it seems, is to defy the warning, by circumventing the block
>>> by
>>> changing IP and/or account to do what you were told not to do on the
>>> warning.
>>
>> Technicalities aside if I follow you right then it is a federal
>> offense to edit Wikipedia when you were told not to (eg. banned but
>> _not_ blocked). If that's the case the IP part of the discussion is
>> mainly irrelevant as one does not have to evade a block to violate the
>> ban.
>>
>>> The central issue though, that it
>>> seems block evasion is a federal offense, is not affected by the
>>> difficulty
>>> in proving evidence for it. It is the question whether the evasion is
>>> a
>>> crime that bothers me.
>>
>> [insert meetoo here]
>>
>> g
>>
>
> This is actually incorrect, as were some of your comments about the
> irrelevance of IP blocks in your prior post. Have a look at some of
> the links I posted earlier in the thread, I think the issues should
> become more clear.
>
> To FT2's comments - it's not actually true that the IP ban, or a cease
> and desist, have to be specific to a person. In fact in the linked
> case, they are blanket to a company. I see no particular reason why
> the same reasoning can't be applied to a school, or a church. A
> geographic area is probably harder to support. Additionally, we
> generally give warnings, and block accounts. For the most egregious
> harassment, the only instances I can see this ever coming into play
> for Wikimedia, virtually every perpetrator has a long history of
> blocked user accounts. I think that makes the debate over the
> "personally identifying nature" of IPs irrelevant for this discussion.

Although I don't think it rose to the level that a federal court would
take it seriously the Scientology socks are an example. There, ips were
usually irrelevant as was the individual identity of users; although we
knew a few.

Fred


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