Eleventh Circuit Decision in Snow v. DirectTV
The Eleventh Circuit decided an interesting case on the Stored Communications Act today: Snow v. DirectTV.
I’m rushing to get my book out today, so just a quick comment: There were lots of different reasons why the Eleventh Circuit should have affirmed, and the court got close to (but didn’t quite hit) the best one. The court’s decision comes very very close to recognizing a really important principle: It simply shouldn’t be a crime to violate a Terms of Service. As I argued in this article, violating a TOS shouldn’t be a criminal act of access without authorization or exceeding authorized access. The Eleventh Circuit ends up finding a way to reach that same conclusion via the indirect route of 18 U.S.C. 2511(2)(g), and gets the basic policy arguments right. But it would have been better, at least from my perhaps quirky perspective, if the court had reached the same conclusion by construing the meaning of authorization than by relying on the narrower 2511(2)(g).
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