Stressing its belief that allegedly violating a private company’s terms of service is not a federal crime, the Electronic Frontier Foundation (EFF) has filed...

Stressing its belief that allegedly violating a private company’s terms of service is not a federal crime, the Electronic Frontier Foundation (EFF) has filed a friend-of-the-court brief calling for the dismissal of the computer fraud case against ticket brokers Wiseguy Tickets.

Called a “Brief of Amici Curiae,” the document piggybacks a motion to dismiss the case filed by the defendants late last week before U.S. District Court Judge Katharine S. Hayden. Joining the EFF in signing the brief were the Center for Democracy and Technology; the Association of Criminal Defense Attorneys of New Jersey; and law professors Gabriel “Jack” Chin, Eric Goldman, Michael Risch, Ted Sampsell-Jones, and Robert Weisberg.

In a 43-count federal indictment filed earlier in the year, the principals of Las Vegas-based Wiseguy Tickets are accused of computer fraud in procuring more than 1.5 million event tickets by allegedly hacking into the computers of Live Nation Entertainment’s Ticketmaster division and Tickets.com. They resold the tickets and allegedly generated about $25 million.

But, the company paid for the tickets it resold, and questions of whether the principals committed a crime quickly began to be asked by industry observers, including the New York Times.

The brief questions whether the Computer Fraud and Abuse Act (CFAA), which the defendants are accused of violating by using automated means to allegedly circumvent Ticketmaster’s terms of service, applies to this case. The EFF argues the government’s case is “grounding criminal liability in whatever arbitrary terms of service” a Web site tries to mandate.

According to EFF Civil Liberties Director Jennifer Granic, anyone “who disregards – or doesn’t read – the terms of service on any Web site could face computer crime charges,” under the government’s case.

“That gives Ticketmaster and other online services extraordinary power over their users: the power to decide what is criminal behavior and what is not. Price comparison services, social network aggregators, and users who skim a few years off their ages could all be criminals if the government prevails,” she said in a statement.

In addition, the EFF said the government’s case is also suspect in regards to prosecutors’ assertions that they are trying to protect consumers, because Ticketmaster owns secondary ticket marketplace TicketsNow, which resells tickets. Theoretically, TicketsNow could have benefitted from the alleged crime, if any of those tickets were resold on its exchange. “The public thought it had a fair shot at getting tickets to these events, but what the public didn’t know was that the defendants had cheated them out of that opportunity,” U.S. Attorney Paul Fishman said at the time of the indictments.

“We have no comment,” Rebekah Carmichael, spokesperson for the U.S. Attorney’s Office in Newark, NJ, told TicketNews about the EFF’s brief and the defendants’ motion to dismiss. The government will answer the motion with a court filing in August.

Marcia Hofmann, senior staff attorney for the EFF, said in a statement that the group believes the government “overstepped” by indicting the company based on the CFAA. “The CFAA is aimed at blocking trespass and theft, not quashing innovation. Yet under the government’s theory, Web sites could put the power of criminal law behind their own terms of service to create severe obstacles for their competitors.”

Mark Rush, attorney for Wiseguys defendant Kenneth Lowson, and the unofficial spokesperson for the four defendants, told TicketNews that he “hopes and anticipates that the court will give weight” to the brief because of who signed on.

“Needless to say, we were encouraged by all [those who signed the brief], given their reputations in industry and the study of law,” Rush said.

At the time of the indictments, Rush questioned the prosecution’s case along the same grounds as the EFF. “At the end of the day, is this a federal crime or not? We don’t believe it is.”

Chicago-based attorney John Moore, who is not a part of the case but has represented ticket brokers in the past, told TicketNews that he believes the friend-of-the-court brief poses important questions for the secondary ticket market and its future.

“The amicus brief of the EFF and law professors demonstrates that groups with no connection to the ticket industry realize the profound danger of allowing private companies to use criminal prosecutions to restrict competition,” Moore said.