🚀 go-pugleaf

rgd@inforamp.net (Bob Daniel) wrote:

>In article <4s67fc$hco@news.interlog.com>, alchemy@interlog.com wrote:

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

>By this reasoning, if I declare my intention to use Istar's PPP connection
>to access an uncensored external news server, are they still on the dime
>for providing that access?  This question, by the way, does NOT constitute
>such a declaration (he said, covering his ass)

Only if they know that you are using their connection to access
criminal matter.  If you say "I want to use your PPP connection to get
some pictures of babys being raped", and then proceed to do so, iSTAR
is on the hook for being a party to the offence.

>Illegal material exists on the Internet and Istar provides
>access to the Internet.  Are they not BY DEFINITION providing access
>to illegal material?

Of course they are.  But the Crown must prove that they had knowlege
of the illegal material.  In a criminal prosecution the Crown must
show the actual image or text and prove that it is obscene.  They must
then go on to show that the accused knew about the image or text and
intentionally  (or at least recklessly) helped to distribute it.  The
newsgroups which were discontinued were dedicated channels of
criminally obscene matter; simply by their titles one should see that
they are probably carrying illegal images.  On the other hand,
although such images can appear elswhere on the net the isp is not
likely to come across them and therefore the mens rea, the mental
aspect of the crime, cannot be established.

>I thought "HOLDING the offensive material"  WAS in fact the issue....

Holding the offensive material constitues possession.  However, even
without holding the material the isp may facilitate the publication of
the material, making them a party to the offence.  Section 21 of the
Criminal Code provides:
Everyone is a party to an offence who (a) actually commits it; (b)
does or omits to do anything for the purpose of aiding any person to
commit it; or (c) abets any person in committing it.

If they help you get it into your computer they may be found guilty.

>-- 
>Bob Daniel              rgd@inforamp.net
>Toronto, Canada         http://www.inforamp.net/~rgd