Date: Tue, 22 Apr 1997 21:37:25 -0400 From: Sysadmin <danlaw@rust.net> To: Michael Dillon <michael@memra.com> Cc: isp@freebsd.org Subject: Re: How many customers read news (was Re: News...) Message-ID: <335D67D5.583D@rust.net> References: <Pine.BSI.3.93.970422135307.20794I-100000@sidhe.memra.com>
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Michael Dillon wrote: > > On Tue, 22 Apr 1997, Sysadmin wrote: > > > What country is this you live in? In the United States, we have civil > > liberty laws prohibiting such behaviour by law enforcement officials, > > of course I am not aware of the situation where you live, but I don't > > see why Usenet should be governed based on the activities of a police > > state where a distributor is treated as a publisher of information. > > In the United States it is illegal to distribute child pornography or > illegal copies of software. There are numerous cases where store owners or > BBS operators in the USA have been jailed for doing this. Now, is an ISP a > distributor and thus liable under the law? Or are they merely the operator > of a communications channel and therefore exempt from the law like telcos > and trucking companies. So far this has not been fully decided, but one > thing is for sure. USENET looks a lot more like distributing than beiong a > comm channel and that's where the danger lies. Noone can be sure how the > courts and the lawmakers will decide this one. But we can assess the risks > and since the penalties are pretty severe, I think it makes sense to be > conservative in assessing these risks. I don't want to see the entire > independent ISP industry wiped out because of a police sweep for child > pornography. And the danger of that is very real. There are rumblings and > rumors, some of which are coming from people who have contacts inside > various police forces. Frankly, I doubt that there has been any significant percentage of child pornography ever distributed on Usenet - even in the groups that are specifically designated for that and nothing else. Straw man. I don't think there has been *any* case where a person has been jailed for distributing illegal copies of software - this is SPA fearmongering, though I have heard of some fines. No, _distributors_ of documents, like bookstores, are _not_ liable as a rule - _publishers_ are. And the fact is the legal precedents already protect ISP's against liability for uncensored Usenet distribution (though not the content-selected kind, apparently). The unsupported report of "rumblings and rumors" doesn't even deserve an answer. On this you base the conclusion that the "Entire Independent [as opposed to?] ISP industry" will be "wiped out"? That "the danger of this is very real?" Some great secret police god department that rules all the others is going to somehow organize them for a "sweep"? Snigger. Black heliocopters indeed. > I can't be sure if the rumors are true and I am not a lawyer. But I think > it would be wise for every ISP to consult their own lawyers on this and to > make whatever moves they think are necessary to stay out of jail. I know a > lot of ISP's think it is a catch-22 situation because they wrongly believe > that removing any single USENET posting opens them up to charges, but > leaving it alone makes them somehow invincible. I don't believe either is > true. Because...? Your belief, evedently based on little other than speculation, is what the ISP world should go by? I did see my lawyer. And she told me exactly what you disbelieve to be the case. But I would advise you to not only disbelieve in rumors from such sources but even to take their official announcements with a ton of salt. > And since USENET is not intended to be a file transfer mechanism and Usenet is nothing _but_ a file transfer system. Most groups intended for text files. > since the volume of files travelling through USENET is now creating > *OPERATIONAL* *DIFFICULTIES* for ISPs, I think it is a wise move to simply > get rid of all binary files period regardless of what newsgroup tag is on > them and regardless of what their actual or claimed content is. Ah, now we get to the _real_ motivation. Hey, everyone! Someone's afraid he'll lose customers unless he can persuade most of his competitors to drop the same inconvenient-to-provide but popular service! > > I would think that the question is "is there a preponderance > > of actually illegal vs nude or other legitimate material". > > One single illegal image is enough to send you to jail. And I haven't even > said anything yet about the pirated software which may not send you to > jail but will cause a severe hit in the pocketbook. Do you really want the > SPA to become the country's largest ISP by virtue of forfeit? "One illegal image is enough to send you to jail?" Maybe once, twice, among many tens of thousands of ISPs and BBSes? Have you ever heard of the word "anomaly"? You really have got to be freaking joking... (wait a minute, to people troll in mailing lists?) The SPA doesn't get _anywhere_ in courts. They rule by pure unfounded threat, misinformation, and press release bluster. > > > As for the "drug dealer" junk, I don't understand. To try to fit > > reality into the analogy you make, If your whole business is sending > > packages, which you do not have the time to open or examine in detail, > > do you become liable if someone slips such a package in among the > > others? > > You are quite right. But USENET is not about delivering packages. With > USENET the packets stop at your news server. And the buck stops there as > well. If people can browse your news server looking for illegal porn > images to download then you have problems because now you are the content > provider every bit as much as the magazine store on the corner. How many > magazine stores carry child porn? Why don't they carry it? Well, if they stopped at your server, they stopped at your newsfeed ISP's too. And they had to start up again and be asked for by someone to be read. And the simple fact is the majority of the stuff, including the majority of the fraction of Usenet that are binaries and the fraction of those that are images and the fraction of those that are erotic images, are lawful. Perhaps disgusting, but mostly lawful. There is one legal problem I do see: The Federal Sherman Anti-trust Act clearly prohibits businesses and their agents, such as ISPs, from conspiring or attempting to conspire with others in order to limit competition, _not_ limited to fixing prices but also as to restricting the availability of services. Want to talk (literally) million-dollar fines? Want to talk triple damages? Try to threaten or otherwise persuade competing ISPs into dropping the parts of Usenet you don't want your customers to be able to get. Remember persons other than the Government's employees can file such suits. That's a more real threat than non-functioning laws or overofficious constables (not a threat from me, but a method of doing business the aforesaid consulted lawyer warned me strongly against).
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