🚀 go-pugleaf

In article <1992Nov10.074320.5826@ais.com> bruce@ais.com (Bruce C. Wright) writes:

   As for the original topic, given the current laws in the US it's
   probably only a matter of time until one site or another on the
   alt.net gets into some trouble over copyrighted or `pornographic'
   material, especially if the sysadmin doesn't make any effort at all
   to remove such questionable material.  (Which doesn't necessarily
   mean a major effort to screen the material, just keeping an eye out
   and removing articles that claim to be from copyrighted sources or
   that are identified as questionable -- say in discussions such as
   this one -- would probably be sufficient to prevent prosecution.
   Ignoring the potential for problems would likely _not_ be sufficient).

Telephone companies are not required to listen in on conversations and
disconnecting circuits which are carrying illegal ones.  In fact they
are prohibited from monitoring conversations, with few exceptions.
Why should that be any different for me?  I am perfectly willing to
respond to a complaint from any of my news users about illegal
material, just like a phone company, but I should not have to screen
all my incoming news to avoid prosecution.
-- 
Ed McGuire                   1603 LBJ Freeway, Suite 780
Systems Administrator/       Dallas, Texas 75234
 Member of Technical Staff   214/620-2100, FAX 214/484-8110
Intellection, Inc.           <ed@intellection.com>

In article <EMCGUIRE.92Nov11161022@fuller.intellection.com>, emcguire@intellection.com (Ed McGuire) writes:
> In article <1992Nov10.074320.5826@ais.com> bruce@ais.com (Bruce C. Wright) writes:
> 
>    As for the original topic, given the current laws in the US it's
>    probably only a matter of time until one site or another on the
>    alt.net gets into some trouble over copyrighted or `pornographic'
>    material, especially if the sysadmin doesn't make any effort at all
>    to remove such questionable material. [...]
>    Ignoring the potential for problems would likely _not_ be sufficient).
> 
> Telephone companies are not required to listen in on conversations and
> disconnecting circuits which are carrying illegal ones.  In fact they
> are prohibited from monitoring conversations, with few exceptions.
> Why should that be any different for me?

"`If the law supposes that' said Mr. Bumble ... `the law is a ass, a
idiot'" -- Charles Dickens.

_Personally_ I don't disagree with you.  But that's not the attitude of
many in law enforcement.  Legally, neither usenet nor any particular
site has the same status as the telephone company.  And I'm not even
sure we'd want it;  that would mean having to answer to PUC's (Public
Utility Commission) and so forth.

There are many situations in US law where _possession_ of something,
even unknowingly, is considered to be presumptive evidence of trafficing
in it.  Child pornography is one of them.  So are drugs or large amounts
of money (presumed to be evidence of drug dealings).  If I take a friend
out on my boat, and he happens to have some marijuana in his pocket that
I don't know about, _my_ boat can be confiscated because I'm considered
to be trafficing in marijuana.  Likewise, computer hardware can be
confiscated if various evidence of criminal activity is found on it,
even if it was not known or approved of by the hardware's owners.

I'm not arguing that this is fair or just or right -- in fact in most
cases I think it's not.  I'm simply saying that it IS, and that it's one
of the parameters we have to work within to avoid trouble with the cops.

Bruce C. Wright

bruce@ais.com (Bruce C. Wright) writes:

[...]
>If I take a friend out on my boat, and he happens to have some
>marijuana in his pocket that I don't know about, _my_ boat can be
>confiscated because I'm considered to be trafficing in marijuana.
>Likewise, computer hardware can be confiscated if various evidence of
>criminal activity is found on it, even if it was not known or
>approved of by the hardware's owners.
[...]

I think you are confusing civil forfeiture, where the government
claims ownership of the "drug boat", with impounding of evidence,
where the government holds possible evidence of a crime for a while.
I've never heard of the government applying civil forfeiture to
computer crimes. Also, I believe that after the Steve Austin incident
the government is being more careful with what it impounds.

- Carl
-- 
Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign

Carl> == Carl M. Kadie <kadie@cs.uiuc.edu> 

 Carl> Also, I believe that after the Steve Austin incident the
 Carl> government is being more careful with what it impounds.

I certainly would, too; can you imagine what the Six Million Dollar Man
*did* to those poor Secret Service agents? :)

[You mean the Steve Jackson Games case, in Austin, TX, of course.]
--
Christopher K. Davis      | ``Usenet seems to run much like the Kif (or,
<ckd@eff.org>   EFF #14   |   for the TV generation, Klingon) high command.
System Administrator, EFF |   Whoever takes action and can be heard wins.''
+1 617 864 0665  [CKD1]   |   --Peter da Silva <peter@ferranti.com>

In article <EMCGUIRE.92Nov11161022@fuller.intellection.com> emcguire@intellection.com (Ed McGuire) writes:
>Telephone companies are not required to listen in on conversations and
>disconnecting circuits which are carrying illegal ones.  In fact they
>are prohibited from monitoring conversations, with few exceptions.

Actually, they routinely monitor conversations for "signal quality"
checking, last I heard.  (Of course, they have neither the manpower nor
the inclination to monitor more than a tiny fraction of them.)  I think
you're confusing authority to monitor with authority to disclose.  The
phone company can listen all it wants; it just can't tell anyone else
what it hears.  Things heard during signal-quality monitoring are supposed
to go in one ear and out the other.

>Why should that be any different for me?

Because the phone company is a "common carrier", and you are not.  It
would make sense for Usenet and similar entities to be common carriers,
but nothing short of a court decision would establish that.  Until that
happens, nobody knows quite what your legal status is.  (The recent
Compuserve case points in the right direction, but doesn't settle all
the angles by any means.)
-- 
MS-DOS is the OS/360 of the 1980s.      | Henry Spencer @ U of Toronto Zoology
              -Hal W. Hardenbergh (1985)|  henry@zoo.toronto.edu  utzoo!henry

Henry Spencer (henry@zoo.toronto.edu) writes:
> [stuff deleted]
> It would make sense for Usenet and similar entities to be common carriers,
> but nothing short of a court decision would establish that.

Why should all services on Usenet and similar entities be common carriers?
Email - sure. Moderated newsgroups or mail distribution lists - not. Routing
a message is one thing, storing a message for public access is another.

---
Haakon Styri 			*** std. disclaimer applies ***
Norwegian Telecom Research

In article <1992Nov16.163545.5382@nntp.nta.no> styri@nta.no writes:
>> It would make sense for Usenet and similar entities to be common carriers,
>> but nothing short of a court decision would establish that.
>
>Why should all services on Usenet and similar entities be common carriers?
>Email - sure. Moderated newsgroups or mail distribution lists - not. Routing
>a message is one thing, storing a message for public access is another.

You've covered two cases -- ordinary mail, and moderated groups/lists --
but not the interesting one, unmoderated groups/lists.  Common carriers are
often *not* free to carry illegal traffic once they know it exists (indeed,
such traffic is usually sufficient grounds for them to discontinue service
to you).  Moderators would (probably) remain responsible for their postings
even if the network involved was formally a common carrier.  It's the
unmoderated groups whose legal status is very unclear.

The question is not whether a network can ignore illegal traffic when it's
brought to their attention, but whether they are responsible for it even
if they weren't aware of it.  Publishers are; they can't get out of (say) an
obscenity charge just by claiming that they didn't know what their staff
was doing.  They are legally obliged to pay attention and make sure that
they publish no illegal material.  Common carriers typically must act on
illegal traffic when they become aware of it, but are not responsible for
seeking it out.
-- 
MS-DOS is the OS/360 of the 1980s.      | Henry Spencer @ U of Toronto Zoology
              -Hal W. Hardenbergh (1985)|  henry@zoo.toronto.edu  utzoo!henry

henry@zoo.toronto.edu (Henry Spencer) writes:

>[...].  Publishers are; they can't get out of (say) an
>obscenity charge just by claiming that they didn't know what their staff
>was doing.  They are legally obliged to pay attention and make sure that
>they publish no illegal material.
[...]

At least in the U.S., the law distinguishs between a "Publishers", who
have editorial control on material, and "Distributors/Faciliators",
who do not. An example of a publisher is a newspaper. Examples of
distributors and faciliators are books stores, printers, and
auditorium owners.  Publishers are reponsible for material;
distributors/faciliators generally are not. This protection comes from
the general right of freedom of expression (as protected by the First
Amendment); it does not depend on legislated previleges ala "common
carriers".

- Carl

ANNOTATED REFERENCES

(All these documents are available on-line. Access information follows.)

=================
law/cubby-v-compuserv
=================
* Expression -- Liability -- Cubby v. Compuserv

Report of a federal district court case which said CompuServe could
not be held liable for the defamatory content because it exercised no
editorial control.

=================
law/student-publications.misc
=================
* Expression -- Offensive -- Student Publications -- Misc

Quotes from the book _Law of the Student Press_ by the Student Press
Law Center (1985,1988). They say that four-letter words are protected
speech, that public universities are not likely to be liable for
publications that they for which they do not control the contents, and
that the _Hazelwood_ decision does not apply to universities.

=================
=================

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   gopher gopher.eff.org

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method) and by email. To get the file(s) via ftp, do an anonymous ftp
to ftp.eff.org (192.88.144.4), and get file(s):

  pub/academic/law/cubby-v-compuserv
  pub/academic/law/student-publications.misc

To get the file(s) by email, send email to archive-server@eff.org.
Include the line(s) (be sure to include the space before the file
name):

send acad-freedom/law cubby-v-compuserv
send acad-freedom/law student-publications.misc


-- 
Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign