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Comment by alasdair_ | Hacker News Reader

>You cant have criminal penalties and then delegate the definition of the crime to each website.

How does this differ from criminal trespass, where each landowner can define permitted use versus trespassing however they wish?

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A webmaster can deny any kind of access they don't want by just not serving to them, just like a landowner can put up a fence. People on the outside can still look over the fence from a public space perfectly legally, like a webmaster serving their homepage to everyone, and the landowner can't demand of people outside the fence, for example, "You can look over the fence, but only if you don't make a mean face at me". If you don't want people to look at all, well, don't make it public and put up a wall instead, and require authorization to enter.

If the landowner voluntarily allows someone inside, they can have pretty arbitrary rules about what people are allowed to do inside (in addition to the actual law), but the only real recourse they have to enforce their arbitrary rules once broken is to evict an offender to the outside. They don't get to pretend that their arbitrary rules are suddenly laws punishable as if they were a crime.

> A webmaster can deny any kind of access they don't want by just not serving to them

You’d think that but Microsoft just lost a lawsuit over some company scraping LinkedIn that they tried to block.

Building a fence, and then leaving an open gate with a sign saying "Anyone that wants to look at my garden can come in, as long as you pinky promise not to take pictures", and then proceeds to leave it unmonitored, does not give the landowner the right to prosecute people under the law for having a photo of the garden. (Watch me be wrong about this :P)

Or more plainly, it's the webmaster's own responsibility to "just not serve" if they don't want it to be served, and their failure to implement their own desires as software doesn't suddenly give them carte blanche to claim whatever they want was breaking the law.

In this case, the data is effectively public. Sure you have to "tell them your name" and "agree to ToS", but neither of those requirements are binding the applicant to tell the truth. So Microsoft chose a method of authorization that is unfit for the purpose of keeping people they don't want to have access out of their system. "But but but how else would they keep people off?" I don't know, but it doesn't matter. Make people sign a contract under supervision of a notary, or validate their drivers license, or whatever. The fact that Microsoft is too lazy to implement a solution that effectively implements their desired policy isn't material to what the actually implemented policy enables.

The only criminal act in trespassing is coming back after being banned. Whatever you did to get banned is not a criminal issue.

And as far as I know trespassing bans have to be a manual blacklist or whitelist. You can't define some arbitrarily complex behavior that makes you into a trespasser. Maybe I'm wrong on that?

>You can't define some arbitrarily complex behavior that makes you into a trespasser. Maybe I'm wrong on that?

I've seen plenty of trespassing signs with statements mentioning specific times of day, like "after sunset" or "after midnight until 8am". I assume these are legally binding but I don't know for sure.

IANAL, but I think it comes down to the trespasser being informed in some way that the property is private and they're not welcome. If I'm kicked out of a store, for example, the owner or one of their agents has informed me that I'm no longer welcome on that property, so trespass happens if I try to come back. In the case of someone's property that has conspicuous no trespassing signs, the sign serves to inform me I'm not welcome.

At least that's what the cops told me one time when I was a kid and got busted exploring in the woods and missed the property owner's "POSTED" signs...

This is the commonly excepted folk advice people are given, however, most state laws (US) take no account of so called posted signs. There is a ‘mens rea’ requirement that for trespassing would typically require only that the trespasser knew they were on land that did not belong to them (this issue is easier to muddy if the trespassing occurs on ‘public’ lands/property).

But the statutory basis for trespassing is most often just the act of crossing into land without prior express permission.

I wanted to make sure I wasn't talking out of my ass about the posted signs, so I looked up the regulations for where I was from (New York): https://www.dec.ny.gov/regulations/2442.html#posted

But to be clear about my anecdote, I wasn't doing anything wrong and wasn't actually arrested. My family's property bordered the property I "trespassed" on, and the guy called the cops on me, a 10 year old, instead of just telling me to leave. The cop showed up and basically just scared me and said he didn't want to come back out there.

That would depend on the jurisdiction. Typically in the US, most states define two separate criminal statutes for each situation:

1) Criminal Tresspassing - typically defined as the entering the property of another without express permission from the owner (this tends to include intruding via drone these days)

2) Remaining or Reentry after forbidden - which is for those cases where entry was permitted, but the owner subsequently revoked that permission.

>this tends to include intruding via drone these days

Can you elaborate on this point? There are a LOT of FAA rules and federal laws that allow aircraft to fly over your property without your permission. I could see the argument for a ground-based device or perhaps an extremely low-flying drone but not for general drone use.

Of course, there are other laws (like requiring line of sight, not flying over humans or livestock, etc.) that are probably broken by anyone flying a typical non-commercial light drone over someone else's property at a level low enough to be annoying.

I happen to have this handy from a Motion:

Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation. Skysign International, Inc. v. City and County of Honolulu, 276 F.3d 1109, 1115 (9th Cir. 2002). State and Local Regulation of Unmanned Aircraft Systems (UAS) Fact Sheet Federal Aviation Administration Office of the Chief Counsel, 2015.

> 1) Criminal Tresspassing - typically defined as the entering the property of another without express permission from the owner (this tends to include intruding via drone these days)

You generally need to be aware of it though, right? Wandering in the woods won't get you in violation if you accidentally cross property boundaries, there needs to be a fence or at least a sign informing anyone about the blanket "No Trespassing"?

Awareness is not really necessary. Even in the absence of a fence and "No Trespassing" sign, they can still get you for criminal trespass. If, for instance, you go onto old lady Johnson's lawn and help yourself to all of the spinach in her garden or the roses in her rosebush. (Well, assuming she wants to press charges that is.) She doesn't have to have a fence or "No Trespassing" sign.

That's theft or destruction of property.

That's why they'd charge you with misdemeanor theft and criminal trespass. (Unless for some reason old lady Johnson's flowers and veggies were extraordinarily valuable on the open market.) If old lady Johnson is the prosecutor's grandma, you'll also likely see a disorderly conduct charge. And you'd better hope you don't live in a jurisdiction with robust menacing statutes.

Point is, any prosecutor can start stacking these charges and land you in a world of hurt for whatever reasons they please.

I remember vividly a night in college when I got a ticket for underage drinking at a house party. I was wishing I had gone with my friends to a bar downtown. Until they got back later that night and I found out that a bunch of them got cited for underage drinking, disorderly conduct, and also got forgery charges. (Because of the fake id's they used to enter the bar.) In essence, they had done the exact same thing I did, only difference being the cops that busted the house party didn't search everyone and find fake id's on us. All those other charges were totally unnecessary, but they got stacked on anyway because the prosecutor and/or cops wanted to be hard asses.

Presumably not very different. I assume you also cannot have individual customers fined and jailed for violating clause 336b of the 30-page contract everyone signs without reading before stepping into your store. And if you can, that's messed up.

That is not in keeping with the tradition of trespass, and is probably a similar mistake in the (relatively few) jurisdictions that have tried to craft such a framework.

Also, using biblical proportions to describe undesirables traversing your land is melodrama in the extreme.

In practice people are convicted of criminal trespass when they have either obviously entered unlawfully or have entered lawfully and have been told to leave and have not done so.

If a property posts a sign or sends a letter that only people wearing green may enter. If we allowed the owner to prosecute people found to be on the premises without the correct color even if they leave immediately upon being asked to we would indeed be letting the property owner enforce their whims within the scope of their property with punishments handed down by official channels.

In practice this is basically impossible in most or probably all jurisdictions although probably untested in virtually all instances. Basically almost nobody would press such a case and if they did the local government would be unlikely to pursue such charges or succeed in them if pursued.

Such matters are inherently local and subject to local laws but lets look at the city of Seattle as an example. In Seattle you can call the cops if people are on your property and wont leave however even in that obvious case prosecution is unlikely unless some other crime is committed in the process. The city pursuing a case against people that merely broke your personal rules for conduct on your premises isn't explicitly mentioned not because it is allowed but because it is beyond the pale of absurdity.

Reading for example the guidance provided by the city of Seattle I read that local businesses partner with law enforcement to remove bad actors according to the contact trespass program.

>The Contract Trespass Program is an agreement among private property owners, businesses and the police department to regulate conditions of entry onto their private property. This can include prohibiting people on the property altogether, or it might involve allowing people onto the property only under certain conditions.

The conditions that can be enforced through the Contract Trespass Program are listed in the agreements

and posted on the premises. By signing a contract with the police department, property owners agree to let police officers

warn and then arrest people who continue to violate the conditions

when the owners are not present.

They enumerate the reasons they will cooperate in removing parties and arrest people who have been warned by authorities that they are in violation.

Looking further into the matter businesses don't HAVE to participate in the contact trespass program but they are told that

>Officers may still arrest for violations of SMC 12A.08.040 (Criminal Trespass) on private property regardless of a trespass warning agreement if someone with the authority to set the conditions of entry or revoke the privilege to be on the property has previously warned the individual of the trespass violation and will testify as a witness

They might arrest people who have been previously warned if they are still there when the cops arrive

They are further warned that

>For a successful prosecution, someone with the authority to control the conditions of entry and revoke the privilege to be on the property must testify that the person (1) knew or should have known the conditions of entry, (2) violated the conditions of entry or had their privilege to enter the property revoked, and (3) the person refused to stop the unlawful behavior or leave or they returned to the property after having their privileges revoked. Property owners are encouraged to keep detailed records of the interactions with trespassers on their property.

Please note especially

>the person refused to stop the unlawful behavior or leave or returned to the property after having their privileges revoked

In summary the two situations are exactly alike in the alternate universe in which trespassing is used in that fashion but instead of suggesting a weakness in the defense of such CFAA act cases it suggests that were trespassing laws used in such a fashion they ought to be challenged under the same premise.

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