Common Carriers and Illicit Shipments

[tcmay@netcom.com (Timothy C. May)]

Spencer Mullen writes:

> It would seem that remailers shouldn't be anymore accountable for
> passing on illicit pornography than the postal services are today.
> 
> ??

I'll take the "??" as an invitation for comment.

Package delivery services like UPS and Federal Express *do* have
immunity from prosecution based on what they carry, but this is in
exchange for allowing inspection of packages under specified
circumstances. Thus, if the DEA suspects a package contains cocaine,
it can be inspected, and the shipper will most likely cooperate in
resealing the package and continuing the shipment.

This is part of "common carrier" status. (I don't have any cites for
this, as I'm not a lawyer. But this topic has come up many times on
the Net, and the consensus of knowledgeable people is that
"participation in legitimate law enforcement investigations" is part
and parcel, so to speak, of being a common carrier.)

Caveat: I'm not claiming any of this is as it should be, etc. Just
stating facts as I understand them.

The implications for crypto are unknown, but between the Digital
Telephony Bill mandating easy tapping access and the various key
escrow schemes, I expect that a remailer network which cannot possibly
cooperate may face legal problems.

(One scenario: Digital Telephony III, in 1997, mandates that all mail
sites must keep records of incoming and outgoing packets, and where
they mailed them to, and must keep explicit mapping between incoming
and outgoing packets. These records must be available for inspection,
with a $10,000 a day fine fro noncompliance. With such a mandate, the
authorities could go to each and every remailer they find and demand
these records. A wrinkle: what about *offshore* remailers? Ah, things
then get very interesting.)

--Tim May


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Timothy C. May         | Crypto Anarchy: encryption, digital money,  
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