[850] in Commercialization & Privatization of the Internet
Re: Carrier Liability Legislation
daemon@ATHENA.MIT.EDU (Lyle Seaman)
Tue Jun 18 17:12:22 1991
From: lws@capybara.comm.wang.com (Lyle Seaman)
To: com-priv@uu.psi.com, mkapor@eff.org
Date: Tue, 18 Jun 91 16:27:20 EDT
Mitch,
Obviously, the time has come for this sort of legislation.
I agree with most of the ideas outlined for the proposed legislation,
but I have one significant concern, and one minor concern which is
probably just a weakness in the wording of the outline, and a couple
of nits (itch,itch).
First, the major concern. The proposal states:
>There would be two exceptions to this general rule of freedom from
>liability. First, the rule would not apply to any forwarding or transmission
>of an electronic communication by a person who failed to comply with any
>legal obligation to disclose any known information that might assist in
>identifying the sender of the communication.
No problem yet...
>Second, it would also not apply to anyone who had failed to establish
>or enforce a policy requiring that the identity of the sender of such
>communication be ascertainable (or who possessed advance knowledge that
>such a policy has been violated with respect to such communication.)
>By conditioning the carrier's protection on the availability of the
>identity of the sender from some source, the statute would create an
>incentive for the carrier to preserve any victim's ability to impose
>responsibility for the contents of messages on the appropriate
>person -- the sender.
>
>Holding the sender of a message responsible for its contents is feasible
>only in those circumstances in which the sender of the message can be
>determined. Thus, if the transmitter knows that the identity of the sender
>of the message cannot be discovered even on proper demand, the protections
>afforded by the statute should not be available. This exemption is *not*
>designed, however, to require any forwarder or transmitter to screen
>messages to determine the identity of the sender -- or even to require that
>all messages contain explicit indicators of the sender's identity. The use
>of encryption or aliases is, thus, consistent with the purposes of the
>statute, so long as the forwarding or transmitting party has a policy
>requiring the identity of the sender to be accessible from some source (and
>does not have actual knowledge that the policy has been violated).
I am concerned that this would have the effect of eliminating anonymous
speech (in the network fora). This country has a history of legitimate
uses of anonymous speech ever since the 18th century. In many cases, this
was achieved by using fictitious identities in letters to newspapers.
The writer was protected from prosecution (really, persecution) because
his true identity could not be uncovered, and the publisher usually
escaped persecution for the same reason.
In other, more benign situations, people have used fictitious identities
when they believed that their ideas would not be given due consideration
by those who might be prejudiced against the writer because of his {age,
race,gender,religion,income,occupation...} (cf. Ben Franklin).
On the other hand, there have been court cases recently involving the
refusal of journalists to identify sources, and patient/client/parishioner
confidentiality, so perhaps this problem will not be limited to electronic
media.
And the second, minor, concern:
>Specifically, the statute would apply to any person or company that
>forwards electronic communications between electronic communications
>systems provided by other parties, as well as to a person or company that
>transmits private (that is, not readily accessible to the general public)
>electronic communications from a sender (other than itself) to an intended
>recipients not selected by the forwarder.
Where does a mailing list (such as this one) fit into the above classification?
It seems to me that the intended recipients are selected by the forwarder...
So if I posted defamatory remarks about you to this list, PSI might be held
liable? Under which category of defamation would my remarks fall, libel or
slander?
And finally, in the case where a provider (or speaker/writer/whatever)
fails to meet the criteria for protection, how will it be determined
whether criminal charges may be assessed or merely civil charges?
Perhaps that is beyond the scope of this legislation... ?
Lyle
