Sharing an HBO GO password could land you in jail

Over the weekend Jenna Wortham wrote a piece for the New York Times about the growing trend of sharing passwords to use digital subscription services like HBO GO and Netflix without paying for them. She kicks off the piece, called ““No TV? No Subscription? No Problem,” with a confession that she watches “Game of Thrones” on HBO GO using a friend’s login. (Not even a friend, really—”a guy in New Jersey that I had once met in a Mexican restaurant.”)

Forbes and TechDirt point out that Wortham, though she likely had no idea, actually confessed to a misdemeanor crime in her article. She violated HBO’s terms of service agreement. And in doing so violated the federal Computer Fraud and Abuse Act, which makes it a crime to to “obtain without authorization information from a protected computer.”

It may sound like no big deal, but her crime is punishable with a $5,000 fine and a year in jail. If the value of the stuff she stole (i.e. the purchase price of the shows she watched) were determined to exceed $5,000, she would face many years in jail.

Which still sounds like no big deal, because seriously, who is going to pursue that, right? Except that this is the same act that Reddit founder Aaron Swartz violated, which led federal prosecutors to pursue him until he eventually killed himself in January with a 30-year jail sentence dangling over his head.

So far HBO doesn’t seem intent on pursuing charges against these violations. As part of the article Wortham actually got an HBO VP on the phone, who told her the company doesn’t see password sharing “as a pervasive problem at this time.” But as we saw with Aaron Swartz, that doesn’t even matter when it comes to federal violations—under the Computer Fraud and Abuse Act the federal government itself can prosecute, regardless of whether the “damaged” party wants to press charges.

In Swartz’s case, the academic journal JSTOR that Swartz allegedly “stole” from repeatedly asked the government and MIT to drop their charges against Swartz. They didn’t care that he’d violated their terms of service by downloading too many files. But the government didn’t listen—they wanted to pursue Swartz and make an example of him, and likely would have thrown him in jail.

This stuff happens. Look at Joel Tenebaum, the man who was penalized $675,000 for downloading some songs illegally. Even the judge in that case implored Congress to change the law to prevent these kinds of lawsuits, saying, “There is a huge imbalance in these cases… [against defendants who] don’t have access to lawyers and who don’t understand their legal rights.” But he still upheld the fine and bankrupted Tenebaum. Because that’s the law.

Right now the government and digital subscription companies don’t seem to be going after password sharers. But if they decide password sharing does, in fact, pose a threat to their business, watch out.