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Comment by eli | Hacker News Reader

IANAL, but just because your terms say the service may not be used for illegal things it doesn't mean you can't also be culpable.

If I purchase stolen goods from a thief, I might be breaking the law even if the thief has signed a contract swearing the goods aren't stolen.

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I'm not a lawyer either. I was wondering about this a bit and tried to see if any of the restaurants where Mafia members met in the 70's took any heat because of crimes that had been planned within the establishment and could not find any. (it was the only analogy I could think of which the FBI might use as an example, if there are better ones please add them).

That being said, I would not be surprised if the FBI freely used a 'National Security Letter' [1] to force these guys to turn over data about specific connections. And since, as a service, these guys may be subject to the requirement of giving the FBI a way to wiretap their connections [2] it may be that once they knew the service was being used it was a 'simple' matter of compelling them to provide an unencrypted copy of sessions of interest.

[1] http://en.wikipedia.org/wiki/National_Security_Letter

[2] http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-153...

That example doesn't really apply since the law is explicit about stolen property, which this case has nothing to do with.

Wait a minute, didn't these guys steal a whole bunch of information? Downloading a song and stealing credit card numbers seem to be two different types of theft.

My point was that if you're party to a crime, whatever contract you have probably isn't going to help.

If you knowingly purchase stolen goods, you are guilty of a crime. If the seller swears the goods aren't stolen and even signs a contract to that effect, you aren't guilty of a crime unless you know that the goods actually are stolen. They key element is the intent to buy goods that have been stolen; merely intending to buy goods is not enough.

More appropriate examples would be Napster or Limewire. Their TOS's barred using their programs for illegal ends, but both companies actively promoted illegal downloading. In the end, liability issues brought down both companies.

IAAL. Please don't armchair lawyer, or you'll end up like the guy who runs TechDirt.

>you aren't guilty of a crime unless you know that the goods actually are stolen.

Unless you're in a jurisdiction where the knowledge element can be satisfied by whether a reasonable person would suspect that the property was stolen. In that case you could be found guilty.

Which thankfully, does not apply to criminal charges in America. Where an intent element of "knowledgeable" must be proved, it must be proved that the specific individual knew, or should have known X. "Should have known" is a catch-some for people who willfully ignore what's going on right in front of them, but it does not encompass what a reasonable person would have suspected.

You're confusing the standards applicable to tort law (another person sues you for damages) or regulatory infractions (government sues you for money) with criminal law (government tries to send you to jail/prison).

On a separate note (by reading your comment), isn't funny how you need to be lawyer in order to find out whether you are breaking the law or no for trivial things as this one.

USSR perfected that approach but we are getting there.

You don't need to be a lawyer to know whether you are breaking the law for something like this. It's very simple: Are you trying to buy stuff? --> You're okay, unless... Are you trying to buy stuff that you know is stolen? --> That's a crime.

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