Re: An alternative to remailer shutdowns (fwd)

[tcmay@got.net (Timothy C. May)]

At 3:33 AM 5/21/96, Hal wrote:
>From: Jim Choate <ravage@ssz.com>

>> There should be a section in there dealing with 'knowingly'. If not then we
>> should immediately bring charges against any and all newspapers who have
>> ever printer a ransom letter, or perhaps even the Unibomber Manifesto since
>> there is clear evidence of 'threat to injure the person of another'.
>
>I think Jim is right about the knowledge requirement, which although not
>stated explicitly in the statute, has been held by the courts to be an
>essential element.  My point in quoting is more to show an example of the
>kinds of clearly illegal postings which operators have to deal with.

"Scienter" is the legal term for having knowledge.

This is one reason we often talk about the dangers of remailers looking at
what flows through their systems. Not so much to establish "common carrier"
status, especially as that kind of status is just not something one sets
out to establish!, but because the protection of being ignorant gets tossed
out as soon as one admits to screening, or editing.

This is not perfectly accurate in all situations. A bookstore owner is
generally not held liable for the contents of the books in his store, even
though he makes certain choices about what to carry and what not to carry.
A magazine editor is more often held liable for content of articles (e.g.,
infringing materials, libel, etc.). We discussed this many times when I was
on the Cyberia list. As best I could figure things out, the bookstore owner
is excused from liability because we can't expect he'll have actually read
the books in his store, even if chooses which ones to carry, but we expect
that the editor of "The New Republic" has personally looked at all of the
articles, or had a staff of underlings do so.

BTW, I think that remailer operators don't fit either the publishing or
bookstore models. While it is tempting to compare them to telephones, I
think a better comparison is to *package delivery services* like the U.S.
Postal Service, UPS, Federal Express, Airborne, etc.

As we have discussed *so many* times (:-}), these package delivery services
cooperate in various ways with law enforcement investigations, e.g.,
shipping of drugs by FedEx, but they are not held liable for illegal
materials delivered or for crimes committed with the aid of their services.


(And these delivery services DO NOT always insist on valid return
addresses, in case anyone brings this up. Letters can be dropped in
mailboxes, obviously, and pre-paid mailers are available. When I've used
FedEx, I don't recall any checks of my identity.)

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Licensed Ontologist         | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."