Subject: Re: -- A Call For The Resignation Of Mike Anderson --

From: [email-masked] (Quirk)
Date: Tue, 19 Mar 1996 00:09:34 GMT

<<  posted & mailed  >>

On 16 Mar 1996 03:28:55 GMT, Robert Bonomi wrote:

+  >So they are NOT liable for violations that HAVE ACTUALLY occurred, but
+  >MAY BE liable for future actions that HAVE NOT occurred. Interesting
+  >reasoning.

+  Actually, in point of fact, they *may*indeed* have liability in the
+  original

What exactly do you mean by "in point of fact", I get the feeling you
mean "in your opinion", please present any facts.

+  act.  It is _unquestionable_, that:

Listen, you seem to have a marvelous talent for empty assertion, but
WHY is it _unquestionable_ -- because you say so?

+      A) having been formed of the person's original actions,
+      B) failing to take any actions to prevent recurrence,

+      and

+      C) that _another_ action of the same type, by the same person, *did*
+         occur,

+  That in such a circumstance they *would* be held liable.  "conspirator
+  before, during, and after the fact", for starters.

Your _unquestionable_ statement, is unquestionably incoherent, and
that is a fact.

What are you trying to say?

First you start with the assumption that their was any sort of breach
of law -- there was not, this is merely TFN's pinhead lawyer's highly
incompetent opinion.

Secondly, if a crime was in fact committed, taking "actions to prevent
recurrence" does not relieve you of liability for the original crime.

If TFN is an accomplice in the original crime, then killing Bob's
account does not remove ANY liability for the crime already committed.

So if TFN ever was liable for anything (which I doubt), they are still
liable.

This is why ISPs "take the position that they are a common carrier"
and are NOT responsible for the legality of messages passing through
their system -- the people who POST the articles are.

So the FACTS ARE, Mr. Bonomi, that TFN only BECAME liable WHEN they
ABANDONED the common carrier defense by taking editorial prerogative
and axing Bob's account.

+  There are about three _possible_ ways to prevent a recurrence:

Recurrence of what? The only thing established here is that Bob posted
a message, nothing else.

Why are you seeking to prevent the recurrence of article posting --
that's what usenet is for.

+      1) remove the offender

Ummm -- please give me the court case in which the "offender" was
convicted or stop using the term "offender".

All we've established is that Bob is a usenet "Poster".

So you, dear Robie are also an offender, no?

+      2) "review" -everything- that that person posts -before- letting it go
+         public

Which person?

Since by reviewing ANY posts, you are no longer a common carrier and
have now cast yourself as a publisher, you would have to review the
messages that every user posts and verify that they conform to even
the vaguest and most obscure of law.

I wonder if the TFN has the qualifications and resources to carry this
out?

+      3) deny that person 'posting' privileges.  

Again -- which persons?

Deny everybody's posting privileges?

Good Idea.

That would work -- trash usenet.

Your vision is remarkable
  
+  The manpower requirements, and costs associated therewith, of #2 render it
+  impractical.

True enough, sir.
  
+  #3 has the problem of having to block the -other- ways a person *might*
+  get a posting out.  e.g. no outgoing e-mail. no gopher, no web-browsing,
+  no telnet, and probably no FTP.   ends up being pretty much a 'functional 
+  equivalent of #1, by the time you get done plugging -all- the possible 
+  holes. Why bother, when there is an =equivalent= process that is much
+  simpler, -and- sure to be effective?

That's correct, can all the users. Close down the ISP, this is the
only solution as you have not illustrated how your "offender" is any
different than the rest of the users, except in that his article has
displeased some delusionary lawyer who has no judicial authority (or,
in this case, understanding for that matter).
 
+  -only- #1 is *guaranteed* to eliminate the liability.

Hear, hear! Close down the ISPs! Only by removing everyone's access
can we assure ourselves that they will not be liable.

Brilliant.

+  >I merely pointed out that if you believe as TFN claims, that Bob's
+  >action but them in a position of legal liability, then axing his
+  >account does not rid them of the liability and furthermore not
+  >contacting the authorities could be construed as aiding and abetting
+  >-- but that's if you believe they where EVER liable as TFN claims --
+  >which I do not accept.
+  
+  There _is_ a potential liability to TFN, from the original acts. They
+  *do* have a number of 'colorable' (to use the legal term) defenses 
+  available, however.

The best defense -- common carrier -- is all that they need.
  
+  And, it _is_ true that closing the account does -not- relieve them of
+  that liability.

Correct.
  
+  What closing the account does is eliminate FUTURE liability.  In the
+  event of a 'repeat', and where they had PRIOR FACTUAL KNOWLEDGE that
+  the individual was likely to do this, and they provided the 'means', 
+  then that *would* be "aiding and abetting".   In such an event, none
+  of the defenses available with regard to the original action would
+  be available.

The above is true it does relieve of FUTURE liability FOR THAT ONE
USER, but now that they have made themselves into a publisher, they
have ASSUMED liability for EVERY OTHER members posts.

SO I would say, there potential liability is now far greater.

+  Side note:   When information comes to your attention _after_the_fact_
+  about a criminal act, failure to pass that information on to the 
+  'authorities', _in_and_of_itself_, does *not* constitute aiding and
+  abetting.

Oh -- so therefore Bob did not, as they claim, put them in any sort of
danger right?

What side of the issue are you on?

+  An -overt- act of commission or omission is _also_ required.
+  In order for this 'non-report' to be an overt act of omission, it 
+  would have to be established that the party had the general practice
+  of reporting any and all suspected violations of law to the authorities.
+  *IF*, and *only* if, that can be established, can 

I agree with the above, this further illustrates that TFN should have
done NOTHING.

TFN claims that Bob committed an ILLEGAL act, only the authorities can
determine that to be the case.

So TFN is saying that they have the right to censor ANY article THEY
BELIEVE to be illegal, regardless of how ludicrous that belief is.

+  Additional note: One might want to consider the *potential* risk that
+  TFN was being exposed to.  Assume they did -nothing-, and that a
+  repeat event *did* occur. 

A regular usenet contributor, posting yet another usenet article?

Shocking. Shivers.

You continue to operate under the assumption that Bob's post WAS
ILLEGAL -- you do not know this.

+  'Contributory' liability is clear-cut. 

How?

+  And, if it gets to the attention of the 'authorities', there is a _real_
+  probability of _confiscation_ of the TFN equipment that 'enabled' the
+  criminal act.

Not if they stick to the common carrier defense, then only the posters
equipment would be confiscated.

+  Somehow, I doubt that they would survive _that_.

They would.

+  And, given that their charter is 'to provide services to the community',
+  as it were, if someone is in engaging in acts that imperil their 
+  ability to _continue_ to do that, they are -compelled- to take action.

You seem to have a strong knowledge of legal terminology, but your
point of view and assumptions in this matter are severely twisted,
please consider the following;

...

If you start making every link in the chain into one of the publishers
then every single link in the chain can be leaned on with threats of
legal liability and bullied into taking editorial prerogative, this
will eventual bring in moderators and editors and usenet will be dead,
the internet will be just another censored medium for the mass media
corporate empire where your article will have to be approved by an
ever narrowing circle of information providers. 

Is this your vision of the future of usenet? 

No thanks.

Usenet is revolutionary BECAUSE it makes the USER the PUBLISHER
(that's where the name 'usenet' comes from) thus it opens the media up
to the grass roots, to the voices of advocacy and the arts, to
thinkers and writers who do not have the corporate information machine
behind them, to people who could not otherwise get their message out.

The concept that the user is the ONLY publisher on usenet is the key
to the future of a vibrant and uncensored internet.

Any Private ISP that does not understand this is digging it's own
grave, as they can not compete with the big boys in the mass media
kingpin game. Once the telecom interests have moved in to the market,
they will crush the ISPs, the only ones that will survive are the ones
that will come to be know as "Alternative ISP" (AISPs?) and who cater
to a progressive and radical membership that would not be welcomed by
the major service providers.

Any FreeNet board of directors that does not understand this is
committing an act of hostility against the very people they are funded
to support and must be relieved of their authorities immediately.

.....

Dmytri Kleiner -- Quirk

P.S.  Oh, Nevermind.                  
                            [email-masked]
                            http://www.lglobal.com/~dmytrik
    "Gravity lets           (c) 1996 Idiosyntactix (tm) Toronto
      you down"