> Is it impersonation if I just don't go in wearing the opposing team's colors? What if I go wearing the playing team's jersey? What if I'm the coach of that other team so I wear a hat and sunglasses? Where's the line of "impersonation"?

You're playing with the words, rather than the meaning behind them, and you're smart enough to know that. You're mixing up morality and legality a lot, which I find interesting. I wouldn't say that they have much to do with each other. I'd consider corporations (generally speaking) as amoral entities, striving against the bounds of punishment under the law, and the law as an amoral construct acting as the buffer and interface between other entities (individuals, corporations, other nations). Its job is to act in the interests of the people, one aspect of which is encouraging, but also regulating, the competition in the market. Working toward an even playing field, and correcting when it falls short of providing that.

> I'll argue that it doesn't cross the threshold from "deception required to be basically functional in a competitive environment" into "immoral and personally compromising deception".

I'd argue that it crosses the threshold into behavior that should fall outside the bounds of legal competition. We're better off with many weaker competitors than we are with one strong one.

>I'd argue that it crosses the threshold into behavior that should fall outside the bounds of legal competition. We're better off with many weaker competitors than we are with one strong one.

That's the funny thing about this. I completely agree that we're better with many smaller competitors. The CFAA, like most such laws, is routinely used to stop small competitors. The CFAA is a huge reason that tech incumbents are able to keep their de-facto monopolies, exactly because they make up licensing agreements that say "Reading our site means you swear you won't compete against us" and then send out a firm full of $1k/hr lawyers to do their dirty work.

An "even playing field" would not put force of law behind such fantastical, unrealistic, and anti-competitive assertions. Signing up for the other guy's ToS is not something that would fire off moral alarm bells in your average person. It's naive to believe that anyone adheres to these absurdities, and you have to be a huge company to enforce them.

The false belief that businesses actually restrain themselves to align with such regulations instead of fighting hard to get in a winning position is exactly what leads to damaging laws like the CFAA in the first place.

The net effect is that small innovators get obliterated and denounced for trying to get some leverage while companies playing in the hundreds of millions (Lyft and Uber) can squabble in court before deciding to save some dough and draw up a settlement that says they'll stop accessing the other guy's API (at which point they'll find a proxy or replacement).

It is interesting to note that, were they applied to physical private property, most of your arguments would clear the stealing of anything that is not bolted to the ground.

So I'm trying to answer to you in this light.

Who has legal property of the data in question : Obviously, Lyft. Does Uber, by accessing this data, benefit from it : obviously, yes. Do they, by accessing the data, deprive Lyft from the use of this data ? At first glance, the answer would be no : when you access data, you don't remove it. However, one of the benefits of owning data is to be able to sell it. By accessing this data, Uber removes or lowers the ability for Lyft to sell this data to Uber. In a more general way, one of the benefits of property is to enjoy the sole use of the owned item. Uber violates this.

Now let's look at deniability : Did Uber know the owner of the data did not want them to access it : yes, obviously. Did Uber get access to this data without seeking it ? No, they deliberately sought to access it. Did Lyft put in place barriers to restrict access to this data, and give a clear warning about who was to use it ? Yes, they did.

> This can't be taken as an absolute unless we concede that we must say "OK" just because they say "Please don't"

Well, our laws work like that for pretty much every other aspect of property laws. The owner's only responsibility is to make sure that potential users know the thing is not up for grabs.

>It is interesting to note that, were they applied to physical private property, most of your arguments would clear the stealing of anything that is not bolted to the ground.

This is exactly the flawed analogy that incumbents use to keep anti-competitive legislation like the CFAA and extreme copyright regimes in place, but it doesn't work.

>Well, our laws work like that for pretty much every other aspect of property laws. The owner's only responsibility is to make sure that potential users know the thing is not up for grabs.

They don't universally work like that for public places or businesses. There are significant restrictions in how access to public businesses can be restricted, as well significant accessibility and regulatory requirements before such a place is authorized to open (even if the building is not open to the public). Property owners have to put up with a lot of crap they don't like from their tenants and/or customers. There are whole sectors of law dealing with this.

Beyond that, we're not talking about real/physical property. We're talking about sending copies of bits around. The mere fact that Lyft could've hypothetically charged Uber for access to these bits is not really relevant. Unless Lyft can make an argument that Uber's access was materially disruptive, it should be A-OK in my book. We don't need to adhere to a broken analogy.

When you open for business, you're making a deal with the community. That deal is not well-represented by the CFAA. This is one of the rare instances when the CFAA is being deployed against the larger company, but that doesn't make it a fair law, and note that you still have to have gazillion dollars to consider a suit under this; no garage-based startup is going to be benefited by the CFAA. Drop this one and get Uber on something they deserve to get gotten on.

> This is exactly the flawed analogy that incumbents use to keep anti-competitive legislation like the CFAA and extreme copyright regimes in place, but it doesn't work.

These problems can all be discussed in the prism of restraining property rights for public benefit (e.g. restriction of copyright for quoting). In Uber's case, though, there is no public interest in restraining Lyft's rights.

> They don't universally work like that for public places or businesses. There are significant restrictions in how access to public businesses can be restricted, as well significant accessibility and regulatory requirements before such a place is authorized to open

None of these regulation relate to liability of potential thieves, but to public safety. In our case, this would mean Lyft may be on the hook for not protecting drivers' and users' data, not that the person appropriating these data is not also on the hook.

> The mere fact that Lyft could've hypothetically charged Uber for access to these bits is not really relevant.

Property laws very specifically state that the owner is entitled to the fruit of his property. You may criticize the whole ownership system, but this is a clear cut case of Uber appropriating data that they didn't create. The only question here is whether the terms of access Lyft gave to third parties was explicit enough for Uber to understand that it had no right to this data, and whether Uber also understood this fact.

> When you open for business, you're making a deal with the community.

The nature of that deal is codified in the terms of service. While most terms of service may be seen unfair towards customers, in this case, 1) Uber is not a customer and 2) the aspects of the terms that were violated are hard to consider unfair.

There are plenty of exceptions that could/should be discussed in the scope of CFAA : scientific/historian work, hacking that benefits the customer and/or the owner, work of arts, etc. I would welcome amending the law in this light.

Uber's action fits none of these legitimate uses, and is actually a good example of why CFAA was introduced in the first place.

>These problems can all be discussed in the prism of restraining property rights for public benefit (e.g. restriction of copyright for quoting). In Uber's case, though, there is no public interest in restraining Lyft's rights.

The public interest is in maintaining a fair and open market. You can't blind your competitors and expect to get beneficial competition.

IMO we need to be much more aggressive about this and err toward keeping the market accessible for new entrants v. keeping an ideologically-pure sanctum for corporate property rights. The powerful will always use try to use their influence to get the government enforcing rules that are to their benefit.

If you think it's absurd for Target to be able to issue a blanket ban on Walmart employees shopping in their stores in order to "protect their intellectual property", you should think this is absurd too. "But, Target could've sold information about their stores to Walmart! Walmart employees are stealing by going in there without their Walmart hats on!" Give me a break.

You're speaking in favor of treating intellectual property identical to real property. It doesn't work that way. Information can co-exist without diminishing or blocking anything, whereas occupation or usage of real property cannot.

Some IP rights are reasonable, but contrary to real property laws that merely codify the natural human behavior to protect and preserve physical property, IP contradicts the natural human impulse to spread information far and wide. "Information wants to be free" and all that. IP is a government-granted monopoly on information, and it's something we should be very wary about.

>None of these regulation relate to liability of potential thieves, but to public safety.

That's because no theft is occurring. Theft requires illegally taking something. Uber hasn't taken anything or caused any actual deprivation. The theory that they maybe COULD HAVE sold it to Uber is ridiculous. We can't protect everything based merely on its hypothetical, untested market value; the fact is that Lyft was giving this away.

>The nature of that deal is codified in the terms of service. While most terms of service may be seen unfair towards customers, in this case, 1) Uber is not a customer and 2) the aspects of the terms that were violated are hard to consider unfair.

I disagree, I think they're easy to consider unfair, and I think people would readily agree if the parties had swapped positions.

>Uber's action fits none of these legitimate uses, and is actually a good example of why CFAA was introduced in the first place.

The CFAA was introduced after a panic caused by the Matthew Broderick film War Games. "The internet" was not something that the public had even heard about, let alone had in their homes. It was intended to prevent hacking into military, industrial, and financial computer systems.

So, since you're saying public good requires companies to access their competitors' internal data, should the government require of Uber to release, e.g. their mail archive ? Their business deals ? Any of the data they have ? This would be a move giving market equality. Merely allowing Uber to penetrate their competitors' information system is allowing industrial spying, not making data available for public use.

Should we accept that, e.g. Lyft send some of their employees to be recruited at Uber and then leak the info back to Uber ? That's, afaik, illegal.

You must realize that, while you criticize CFAA for promoting big business, a small company will never have decent means to resist an unrestricted corporate warfare.

By creating a clear delimitation between what in your information system is public, and what is private, CFAA allows smaller companies to protect information critical to their business (not IP, private info), so that they don't have to invest in oversized devensive methods.

> the fact is that Lyft was giving this away.

Lyft was giving this away to business partners with whom they had contractual relations. Uber impersonated contractors, and violated these contractual relations.