🚀 go-pugleaf

mjlevy@delete_this.interlog.com (Michael Levy) wrote:


>Since you are a lawyer, what is your comment on the viewpoint that the ISP
>is actually only one step in the continuous transport of data from one
>user's computer to another. 

>The ISP is in fact only offering a transportation system like the telcos
>and that the users are the only creators, modifiers of the content being
>transported. ISP's only hold (not review, modify nor create it) this data
>for a finite period of time so that the receiving user can get the senders
>input.... because unlike telephones they are not direct connections between
>users.

Whether they are holding the offensive material or merely transporting
it is irrelevent.  They are providing a service which may be used for
propogating illegal obscenities.  If they recklessly by facilitate the
propogation of illegaly pornography they are guilty of being a party
to the offence.

>My lay view is that by taking responsibility for the content of news groups
>on their servers as iStar has done; how can they defend against like
>material in email held on their POP3 servers?

The newsgroups are self-described as existing for the purpose of
posting child pornography and other offensive material.  Unless iSTAR
had some specific knowlege of a particular email account they would
not be responsible for its content.  If someone were to say to iSTAR
"I need an email account to distribute pictures of someone raping a
child" they would be criminally liable for assisting the person by
providing the account. 

In an earlier posting I wrote:

In order to obtain a conviction under the criminal code, at least for
most offenses, the minimum  necessary state of mind of the accused is
one of recklessness.  The intent to commit a criminal act  is
construed where the accused knew that there was a substantial
likelyhood that his activity was a criminal one and proceeded with the
activity anyway.   In this matter,  iSTAR, from the names and charters
of the banned newsgroups, knows that there is a substantial likelyhood
of the groups being used to publish criminal material.  "Knowingly" is
proven sufficiently if the Crown shows that the accused had knowlege
of the nature of the item: R. v. McFall (1975), B.C.C.A.  The very
best illucidation of the law regarding the intent aspect of the
offence is found in R. v. Metro News Ltd, (1986) Ont. C. A.

The mere presence of the offensive images and texts on a server is not
enough to inculpate the internet provider.  As with the possession of
illicit drugs, the offence only exists if the accused knew of its
existence or was willfully blind to its existence. The provider  must
know of the presence of the images and text and also intend to store
or  transmit them with the server.

>Maybe iStar will have to only offer WWW surfing connections that are not
>cached on their machines!  IMO that is the next logical step they may have
>to take, making themselves a pipeline only.

Even as a pipeline they may be criminally liable.  The question of
whether they are knowingly assisting in an offence is the only
relevent one.

Morton M. Goldmacher
Barrister and Solicitor