According to legal analysts, there is a law being passed which could in theory make many types of affiliate marketing a federal felony. In theory, many types of marketing, which don’t fall under the terms and conditions of sites and social networks, could be prosecuted under the Department of Justice, for as much as three years in federal prison for each instance.
The issue here has to do with the Computer Fraud and Abuse act of 1986, which was originally made to prosecute and convict hackers, has been expanded over the years to include almost any type of “unauthorized access.” While this is currently just a misdemeanor, and the DOJ ignores these cases unless they are in combination with “real” crimes, that might be changing. Well, congress is about to expand this law to make it a felony, and make any “excess unauthorized access” a federal felony.
Pushing for congress to enact this is companies like Microsoft and… well, Facebook. The problem with this is that this law will make it ILLEGAL to do anything that is in violation of the terms and condition when you sign up for example Facebook. That means if you are one of those marketers who use Facebook to promote your business, and the terms and conditions prohibits you from posting commercial messages on other people’s pages, or perhaps sending out commercial messages via the message function, you could be arrested for “excess unauthorized access.”
Think this is not possible? Well, in 2009 it turns out that the DOJ actually did prosecute a woman who violated the Terms of Service of Myspace for using a “fake photo” on her profile. Why was this illegal? Because the TOS required her to only use real photos of her.
You should read the Facebook TOS, there are several things that you could be prosecuted for.
You will not engage in unlawful multi-level marketing, such as a pyramid scheme, on Facebook.
In theory, if you ever mention a MLM product on Facebook, you could now go to jail. If you mention it 10 times, you could spend 30 years in prison?
You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.
You want to make another profile for your business, and one for your personal use to keep people separate? Well, that’s illegal.
You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
Want to promote a free gift card product, go to jail if you don’t have rights to the TM. Just some of the examples. In theory, many, many CPA networks are violating the law when they use facebook to promote their network in any fashion, or an offer and do not use the facebook advertising system.
You will not send or otherwise post unauthorized commercial communications (such as spam) on Facebook.
What is Spam? What is unauthorized? This means if you use facebook to market any product, or even reach out to a potential customer, is that illegal? Do we want to criminalize this?
What’s even worse, if your company engages in unauthorized marketing on any forum, any social network or any site (that means even comment spam, which I hate), you could be also prosecuted as organized criminals under the changes in the law.