Several months ago, several Coding the Wheel readers got an email from PokerStars.
We at PokerStars have noticed that recently you have tried out a program called "XPokerBot" by "Coding The Wheel". We would like you to know that among this program's features are automated robot playing that makes it against the rules of Poker Stars.
It's not the first time the PokerStars secret police have condemned a piece of software, nor will it be the last. The PokerStars Prohibited Software blacklist currently calls out some fifty (50) prohibited applications, of which nine (9) are prohibited while the PokerStars client is running, and forty-one (41) are prohibited at all times.
Let's be clear: according to the above document, you're not allowed to run prohibited software even if you shut PokerStars down first. Whether PokerStars is actually running doesn't matter! Once you install the PokerStars software, your machine, at least partially, belongs to PokerStars.
Of course, the piece of software in question, XPokerBot, isn't mentioned anywhere on the PokerStars blacklist. But the email goes on to wag the finger of warning:
Please don't protest that you didn't use XPokerBot, or that it did not actually play any poker. We are aware that codingthewheel.com has not yet published a complete working bot capable of poker logic. Even the degree of experimentation you have done thus far is against our terms of service, and cannot be permitted. Therefore, any reply that doesn't include something like "I understand that bots are against the rules and I won't use or experiment with them on PokerStars" will only delay the re-opening of your account.
However, I prefer the slightly more poisonous version PokerStars sent me, the XPokerBot author, directly:
I regret that we cannot "fail to notice" your activity going forward, nor that of your readers. We will continue to detect and warn users of your software, to the point of seizure and confiscation of funds from those who choose not to heed the warnings, or who choose to try to "cloak" the bot process by using various methods to which you alluded, of which we are well aware, and through such veil we are able to pierce.
The implicit (or not-so-implicit) threat here is: Do something we don't like, and we'll banish you, and we might even steal your money! After all, you have no legal recourse! Ha-ha-ha!
That, I guess, is our reward for buying in at PokerStars: an occasional deposit bonus, plus violation of electronic privacy through authoritarian snooping. And it all happens behind the scenes, without the informed consent of the user—unless you consider informed consent to be shapeless verbiage buried in the fine print of a Terms of Service nobody ever reads:
5.7. You agree that PokerStars may take steps to detect and prevent the use of prohibited EPA Programs. These steps may include, but are not limited to, examination of software programs running concurrently with the PokerStars Software on the User's computer.
5.7 is the only clause under "Prohibited Uses" which isn't given a bold, capitalized heading. The wording is purposefully vague:
Compare and contrast those behaviors with the definition of informed consent:
Informed consent is a legal condition whereby a person can be said to have given consent based upon a clear appreciation and understanding of the facts, implications and future consequences of an action. In order to give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts at the time consent is given.
Now ask yourself this question: when you give an online poker site your money and your action, do you expect to be spied on and investigated by their software, in a way that's never clearly documented or explained? Does that sound like the practice of a legitimate company?
No?
Because in every other walk of life, collecting sensitive information on the sly from your customers is considered unethical, dangerous, and possibly illegal.
What makes PokerStars exempt?
Let's not pretend PokerStars is legit in the sense of "stamped and branded with the word of law". That time has not yet arrived. While it may be legal for you and I to play online poker, the people who operate online poker do so from a position of extreme legal ambiguity. Party Poker golden boy Anurag Dikshit was recently fined over a quarter billion dollars for his role in the formation of the U.S.-facing side of the Party Poker business, and Party Poker withdrew from the U.S. market two years ago.
PokerStars, smelling blood in the water, stayed.
And in order to protect windfall profits, they've forced on their users a Terms of Service which demands powers no sane court would ever grant, even assuming PokerStars had a shred of legal legitimacy...which they don't. What they do have, are all the powers of a bank: they manage hundreds of millions of dollars in player deposits, they operate a general ledger, they maintain privileged financial information. Yet they enjoy zero effective oversight or liability, and they pay zero taxes in the countries where they take the lion's share of their profits.
Kind of an ideal situation, really. For PokerStars, that is.
But what do you think? Is it ever acceptable for a company to prohibit their users from running software on private home computer hardware? Is it ever acceptable for a company to snoop on their users in order to enforce compliance? What if the prohibited software isn't used for cheating, hacking, or defrauding purposes? What if it is? What if the company operates from a legal gray area? What if the prohibition of software is completely ineffective?
Former Sun CEO Scott McNealy once said:
You have zero privacy anyway. Get over it.
Was he right?
Posted by James Devlin 45 comment(s)
