legal question re anonymity online
Mahatma Kane-Jeeves
Let me pose a hypothetical case. On his way home from work one
evening, John Q. Publius stops at a newsstand and buys the latest
edition of his favorite quarterly journal, the Entire World
Redux. Inside, he finds an unobtrusive but inviting ad for an
electronic conferencing system called The BELL.
When he arrives home, he powers up his home PC and applies for an
account on the BELL. He informs the BELL's administrators that
he would prefer to use a pseudonym, and not reveal any personal
information about himself on-line. But the administrators deny
his request, stating:
"Since the BELL makes it clear that users are responsi-
ble for what they post on the BELL, we think it is
important that they be identifiable."
With a sigh, John proceeds to become a regular BELL user and
contributor under his real name.
Some time later, John participates in a debate on the BELL,
taking a clear stance on a very controversial issue. A lurking
rabid fanatic with emotional problems takes silent exception to
John's comments, gets John's name from a message header, and
somehow finds John's address and phone number. He makes phone
calls to John's answering machine, quoting from John's messages
on the BELL and threatening retaliation; later he drops by John's
house and lobs a molotov cocktail in through the window. John's
house is badly damaged, and John is injured, suffers great pain,
loses income and requires expensive medical treatment.
Infuriated and in desperate need of financial help, John sues the
BELL. My question: Does he have a case?
Suppose John can show that although the BELL management denied
pseudonymity to most users, they granted it to certain people
such as celebrities or others with special status. Would this
strengthen John's case? Could he argue that if the BELL takes
upon itself the authority to decide who may or may not protect
themselves with a pseudonym, they must also accept at least
partial responsibility for the consequences?
Suppose John can show that other BELL users have previously
suffered defamation, harassment or other problems as a result of
real-name exposure on the BELL, and that BELL management was
aware, or should have been aware, of at least some of these
problems. Would this strengthen John's case?
I realize that these questions may not have clear answers at this
time, but I am looking forward to informed speculation.
--- mkj
Mike Godwin
>Infuriated and in desperate need of financial help, John sues the
>BELL. My question: Does he have a case?
Absent more fact than this, almost certainly not.
>Suppose John can show that although the BELL management denied
>pseudonymity to most users, they granted it to certain people
>such as celebrities or others with special status. Would this
>strengthen John's case?
No.
>Suppose John can show that other BELL users have previously
>suffered defamation, harassment or other problems as a result of
>real-name exposure on the BELL, and that BELL management was
>aware, or should have been aware, of at least some of these
>problems. Would this strengthen John's case?
No.
Absent actual negligence on the BELL's part, it won't be held liable.
Merely imposing nonanonymity as a policy and as a condition of the
subscription contract does not make the BELL negligent. This is true
whether or not the policy is applied in the same way to everyone.
--Mike
--
Mike Godwin, |"I'm waiting for the one-man revolution
mnem...@eff.org| The only one that's coming."
(617) 864-0665 |
EFF, Cambridge | --Robert Frost
Mahatma Kane-Jeeves
>>Infuriated and in desperate need of financial help, John sues the
>>BELL. My question: Does he have a case?
>Absent more fact than this, almost certainly not.
Although I don't question your expertise (I'm not qualified to do so), your
answers seem to defy common sense. And although I do not generally welcome
increased liability for sysops (I've been one, and may be again), if true,
this particular lack of liability seems unfortunate to me.
Legal considerations aside for the moment, if I invite people into a situa-
tion which I know is dangerous, or knowingly impose dangerous policies upon
the innocent, it would certainly bother my conscience. For example, if I
keep inviting people to swim at my pool, even though I don't use enough
chlorine and some of them get sick from time to time, I would certainly
feel like a heel -- especially if I charged admission. And in general, if
anyone suffers unnecessarily as a result of any of my actions, I always
feel an ethical responsibility to make some amends.
This seems to me like such a fundamental moral minimum that I am surprised
to hear you say it is not reflected in the law. Can you elaborate on why?
Is this a general principle, or do you feel that BBSs are less liable than
other businesses in analogous situations?
>Absent actual negligence on the BELL's part, it won't be held liable.
Like I said, I'm no lawyer, but I happen to have a reasonably recent copy
of Black's Law Dictionary, so I decided to take a look at entries relating
to the term "negligence". According to Black's, "Doctrine of negligence
rests on duty of every person to exercise due care in his conduct toward
others from which injury may result". This appears to me to bode ill for
those who impose real-name policies. But elsewhere in Black's, I found
that the standard by which legal negligence is judged is "Failure to exer-
cise that degree of care ... which a man of ordinary prudence in the same
situation and with equal experience would not have omitted." Would I be on
the right track, therefore, in speculating that the reason why you feel
real-name policies cannot constitute negligence is simply that such poli-
cies are so widespread as to define "ordinary prudence"?
Thanks again for your attention.
--- mkj
Barry Shein
From: m...@world.std.com (Mahatma Kane-Jeeves)
>>>Infuriated and in desperate need of financial help, John sues the
>>>BELL. My question: Does he have a case?
>
>>Absent more fact than this, almost certainly not.
>
>Thank you for your response to my message. I find your answers disturbing.
>Although I don't question your expertise (I'm not qualified to do so), your
>answers seem to defy common sense.
What common sense is this? The "common sense" that you entered into an
agreement which was not forced on you in any way and clearly spelled
out to the point that you even asked about this particular beforehand
and got a straightforward answer and knowing this you proceeded anyhow
and still believe the other party is to be held responsible?
By this reasoning how big a leap would it be that anyone who suffered
any harm for their actions on such a board should be compensated by
the operators of the board, whether or not they inquired into
anonymity beforehand? C'mon, "oh I knew from a friend they would just
say no so I never asked...please make out the zillion dollar check
to..."
Do you expect the phone company to be liable under similar
circumstances? As I remember they make no guarantees for unlisted
numbers nor accept any liability, they merely offer them as a service
in the most superficial manner and under the stated conditions and
should there be a problem generally limit their responsibility to
giving you a new unlisted number.
>Legal considerations aside for the moment, if I invite people into a situa-
>tion which I know is dangerous, or knowingly impose dangerous policies upon
>the innocent, it would certainly bother my conscience. For example, if I
>keep inviting people to swim at my pool, even though I don't use enough
>chlorine and some of them get sick from time to time, I would certainly
>feel like a heel -- especially if I charged admission. And in general, if
>anyone suffers unnecessarily as a result of any of my actions, I always
>feel an ethical responsibility to make some amends.
But that is a negligence you are describing. There was at least some
sort of implied warranty of merchantability, a reasonable assumption
on the part of the purchaser that you operated healthy/safe
facilities. A person generally does not have to ask explicitly whether
or not the food s/he is being served is rotten, or if the pool they
are being sold admittance to has raw sewage pumped into it, it's a
reasonable assumption. The situations aren't analogous.
Anonymity on the BBS you described was not implied, it was in fact
explicitly stated otherwise and you had no doubt about the policy,
enough so that you asked to be excepted!
>This seems to me like such a fundamental moral minimum that I am surprised
>to hear you say it is not reflected in the law. Can you elaborate on why?
>Is this a general principle, or do you feel that BBSs are less liable than
>other businesses in analogous situations?
It is primarily because the BBS said "your identity will not be
hidden, take it or leave it". As Mike stated, there was no NEGLIGENCE,
and in general this is not a situation where the law would recognize
such conditions being imposed as being unreasonable.
You have to show something resembling negligence. Not offering a
service you wish they did is not in and of itself negligence. It may
stop you from purchasing the service, but so what? You can't really
claim you were forced to purchase the service or that you did not
know.
>Like I said, I'm no lawyer, but I happen to have a reasonably recent copy
>of Black's Law Dictionary, so I decided to take a look at entries relating
>to the term "negligence". According to Black's, "Doctrine of negligence
>rests on duty of every person to exercise due care in his conduct toward
>others from which injury may result". This appears to me to bode ill for
>those who impose real-name policies. But elsewhere in Black's, I found
>that the standard by which legal negligence is judged is "Failure to exer-
>cise that degree of care ... which a man of ordinary prudence in the same
>situation and with equal experience would not have omitted." Would I be on
>the right track, therefore, in speculating that the reason why you feel
>real-name policies cannot constitute negligence is simply that such poli-
>cies are so widespread as to define "ordinary prudence"?
Exactly. Disclosure of the terms and conditions is also a problem with
your argument, this is clearly a case where the customer fully
understood the terms and conditions and was able to judge whether or
not he or she was willing to pursue the service under those
conditions. One may not be able to foresee all circumstances, but what
you have laid out is not sufficient to be interpreted as negligence.
To draw an analogy, it's as if you went into a car dealership, asked
for a car which could not drive over 40MPH. They said no, they had no
such car.
So you asked if they could modify a car such that it would not go over
40MPH. They said no, they would not do that.
So you bought one of their cars anyhow (perhaps after the observation
that no one was willing to sell you the under 40MPH car), you drove it
over 40MPH, got into some sort of accident, and now feel they are
liable *merely* because they refused your request.
Now, no one would argue that driving over 40MPH is without any danger,
nor did the person who sold you the car make such a claim.
But it's quite another thing to think that because you asked that your
car be modified not to do that, were refused, but proceeded to
purchase the car anyhow, that someone else is liable. My, what an easy
trap that was!
If that were the case we could all dream up crazy things to demand of
products and services (could you please sell me a knife sharp enough
to cut roast beef but incapable of cutting my finger? No? Ok, then I
shall buy the knife but if I should cut my finger it will be your
fault, etc) and then try to claim later that the purveyor was somehow
negligent in meeting our expectations.
See, that's the balance in any negligence claim: Expectations versus
claims. Claims must be reasonably disclosed beforehand, (your)
expectations do not take precedence over (their) claims unless there
is some good reason to believe something odd is going on (e.g. it was
impossible for you to reasonably understand their claims.)
Obviously this is all much more complicated than this, by shuffling
various notions of what a person might reasonably understand or to
what extent they were free to not purchase a service one can no doubt
derive situations that devoid of their value weightings may appear
analogous to the one you describe, but I think under the circumstances
you describe the situation has no merit.
--
-Barry Shein
Software Tool & Die | b...@world.std.com | uunet!world!bzs
Purveyors to the Trade | Voice: 617-739-0202 | Login: 617-739-WRLD
Mike Godwin
>Thank you for your response to my message. I find your answers disturbing.
>Although I don't question your expertise (I'm not qualified to do so), your
>answers seem to defy common sense.
Really? If so, it is a common sense that is not very common.
> And although I do not generally welcome
>increased liability for sysops (I've been one, and may be again), if true,
>this particular lack of liability seems unfortunate to me.
Perhaps we should sue publishers of phone directories when some stalker
looks up a phone number or address while we're at it.
>Is this a general principle, or do you feel that BBSs are less liable than
>other businesses in analogous situations?
The general principle for nonintentional torts is negligence. What you
described is not negligence.
>Like I said, I'm no lawyer, but I happen to have a reasonably recent copy
>of Black's Law Dictionary, so I decided to take a look at entries relating
>to the term "negligence". According to Black's, "Doctrine of negligence
>rests on duty of every person to exercise due care in his conduct toward
>others from which injury may result". This appears to me to bode ill for
>those who impose real-name policies.
It doesn't when you realize that "due care" does not mean "all possible
care."
>Would I be on
>the right track, therefore, in speculating that the reason why you feel
>real-name policies cannot constitute negligence is simply that such poli-
>cies are so widespread as to define "ordinary prudence"?
Nope. I base my conclusion on the fact that, in general, mere refusal to
offer a service anonymously is not considered negligence. Your plaintiff
always has the option of not contracting with the BELL.
jason 'Think!' steiner
against BELL instead of the perpetrator is an indication of just how
screwed up the current system is. if he -were- able to win such a
case it'd spell death for any number of online information services.
if John Q. Luser joined BELL knowing that the conditions were less
than what he might have liked, -he's- responsible for the fact that
his name got out. likewise, the molotov-tossing freak should be
responsible for his actions, not the communication entity that
allowed him contact with people with different opinions.
unfortunately, in today's climate, Mr. Luser probably -does- have a
case & BELL could quite probably get screwed. such a precident is
scary, to say the least...
jason
--
`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`
`,` "Renaissance Now! Think Universally, Act Selfishly" - Tim Starr `,`
`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,` jste...@anwsun.phya.utoledo.edu ,`,`,`
Steve Pope
>IMHO, John Q. doesn't have a case. the fact that he's bringing it
>against BELL instead of the perpetrator is an indication of just how
>screwed up the current system is.
But, there's some evidence that the BELL is already worried
about what their users might do with the system. (For example,
as an ass-covering move, the BELL doesn't let its users
telnet out to SMTP ports for fear that its users will create
mail forgeries and incur a liability.)
Obviously, the plaintiff in such a lawsuit would present
a case the BELL allowed criminal bombers to use
the BELL conferencing system for selecting targets. Picking
a target is an integral part of terrorist activity.
Seems to me the BELL lured in the unsuspecting John Q.,
tricked him into providing his real name, seduced him into
participating in one of their controversial conferences
and next thing you know, John Q. became Molotov fodder.
By aiding and abetting terrorist bombers in this
critical phase of their mission, the BELL could be
held to be in a position of "contributory negligence".
It is not necessary that the BELL have specific
knowledge that leftwing bomber types would use
their system for picking targets. It need only be
shown that the BELL "should have known" this was
likely. (Precedent: "Soldier of Fortune" was held
liable as being a forum used by killers-for-hire,
even though SOF had no specific knowledge of their
activities. The plaitiffs would similarly argue the BELL
is a forum for left-leaning Molotov-cocktail types!)
But in reality, John Q. would have lots of trouble
finding an attorney to represent him. As it turns
out, the BELL is flat broke, and has very few assets
to attach. (Can't get much cash for those old
Sequent superminis...)
Steve
Hans Lachman
>
>other businesses in analogous situations?
If I own an auditorium and you rent it from me, and you give
a controversial speech, and then someone vandalizes your house,
it's not my fault. If I own a store, and I allow you to
post a controversial notice in my shop window, but only under
the condition that your name appears on the notice, and you
agree, then it's not my fault if someone vandalizes your
house. If I own a soap factory, and you get a soap box
produced by me, and stand on it to deliver your message....
In any case, if someone attacks you because of a controversial
view, the person who provided you the means to express your
view does not, and should not, have any liability. It seems
like common sense to me.
Hans Lachman
lac...@netcom.com
Pete Hardie
>Do you expect the phone company to be liable under similar
>circumstances? As I remember they make no guarantees for unlisted
>numbers nor accept any liability, they merely offer them as a service
>in the most superficial manner and under the stated conditions and
>should there be a problem generally limit their responsibility to
>giving you a new unlisted number.
This brings up a question of mine.
Suppose I choose to have an unlisted phone number. The phone company (TPC)
charges me a monthly fee for this. Now Caller-Id is available in this area,
and I call someone who has this, and they get my number, without my knowing
they could.
Does this violate the unlisted number 'contract', since TPC itself released
my number to a third party w/o my consent? Or does 'unlisted' simply mean
'we won't print it in OUR phone book, or let OUR operators give it out, but
anyone else can'?
--
Pete Hardie: phardie@nastar (voice) (404) 497-0101
Digital Transmission Systems, Inc., Duluth GA
Member, DTS Dart Team | cat * | egrep -v "signature virus|infection"
Position: Goalie |
Elizabeth Schwartz
service which provides anonymity, or you could choose to not post
controversial opinions.
If a radio station airs a controversial interview, and the
interviewee is later shot at by a member of the enraged public, the
radio station isn't responsible. They might be if they broke a promise
of anonymity, or broadcast your address without your consent.
For that matter, you don't have to list your name in the phone book.
If you ask to have an unlisted address and that information is
released by some data bank, seems to me that you would have a case
against *them* (and lots of eager defenders...check out
comp.society.privacy as well as this group)
--
System Administrator Internet: bet...@cs.umb.edu
MACS Dept, UMass/Boston Phone : 617-287-6448
100 Morrissey Blvd Staccato signals
Boston, MA 02125-3393 of constant information....
Mahatma Kane-Jeeves
seems to be emerging that the BELL would have, and should have, no
liability. I said before that such a lack of liability appears to
me to defy "common sense"; obviously a poor choice of words! Let me
rephrase and say instead that it defies my instincts in the matter.
My instincts tell me (1) that the exposure of users to unnecessary
risks is wrong, and (2) that when such a wrong results in serious
harm to someone, there ought to be a legal remedy. Apparently I am
nearly alone in these feelings. I must say I'm surprised.
The arguments offered thus far fall into two main categories:
(1) The BELL's actions cannot be characterized as negligent,
and
(2) Hypothetical user John Q. Publius, by consenting to the
real-name policy of the BELL, consented also to any risks thereof.
I will take issue with both of these arguments, first one first. In
browsing through my copy of Black's Law Dictionary, I found a legal
concept which appears to correspond to my instincts in this matter.
It is an old concept in English law called "Invitation", concerning
the responsibilities of shopkeepers toward their customers, fair
organizers toward the fair's patrons, and so forth:
"... as to those who enter premises upon business which
concerns the occupier, and upon his invitation express
or implied, the latter is under an affirmative duty to
protect them, not only against dangers of which he
knows, but also against those which with reasonable
care he might discover."
Does this doctrine still have application today? If so, why
should it not be applicable to "premises" located in cyberspace?
Now on to the issue of consent, about which I would like to raise
a couple of related points.
First, referring to my hypothetical case, it does not seem obvi-
ous to me that in consenting to a real-name policy, John Q.
Publius clearly intended to consent to the level of risk he
ultimately found in that policy. Also, Barry Shein brought up
the issue of reasonable expectations. I think most people assume
a certain pervasive umbrella of legal protection; that is, when
dealing with a BBS or any other business, many people would
assume the policies of that business must be "safe", otherwise
they would not be "allowed" by law. This assumption may be
naive, but it is common, and relevant to informed consent.
It seems to me that conference system applicants cannot always be
presumed to fully understand what they are getting themselves
into. For example, someone commenting on this issue expressed
doubt as to whether John Q. Publius's phone number and address
could actually be found, given only his name to go on. And I
think that many people who would balk at delivering a speech
before an audience of tens of thousands, or who would die of
fright appearing on a global television broadcast, will nonethe-
less blithely submit comments to network conferences, probably
without fully understanding the implications of that decision.
An experienced sysop will almost certainly have a significant
advantage over most users in evaluating the risks of this medium.
From this advantage I would expect certain responsibilities to
derive.
Second point: Can it really be that easy for each of us to waive
our normal protections under the law? Does a user's consent to
use a real name online actually end the inviter's duty to care
for that user's safety in this regard? If so, many of the pro-
tections of law would seem to have no practical applications. I
would expect to see signs at the entrances to all businesses,
saying, "Abandon all hope, ye who enter here", and thereby ab-
solving the proprietors of all liability. Common sense -- er,
excuse me, I mean my instincts tell me that our duties to one
another under the law cannot be so easily put aside.
Finally, to muddy the waters just a bit further, let me raise a
new issue: What would the reaction have been if my hypothetical
case had featured a user below the age of consent? It seems to
me the doctrine of "attractive nuisance" has been invoked before
in prosecuting BBSs in connection with obscenity or pornography
charges. Would it have any application in a case like this?
--- mkj
Barry Shein
From: som...@some.where (Name Witheld By Request)
>My instincts tell me (1) that the exposure of users to unnecessary
>risks is wrong, and (2) that when such a wrong results in serious
>harm to someone, there ought to be a legal remedy. Apparently I am
>nearly alone in these feelings. I must say I'm surprised.
Re-work your instincts on a much more serious culprit: Automobiles. Or
crossing a busy intersection. Or a zillion other things.
Merely not providing anonymous accounts is not "exposure of users to
unnecessary risks". It is just "the deal" they are offering, and you
are free to choose it or not.
And what about the potential harm to other users *from* an anonymous
user? Is that not a quandary? Does that not, by a similar stretch of
the imagination, seem to hold the BBS somehow liable to the harmed
party?
Besides, the whole thing is more hypothetical than you might imagine.
Most such liability cases are of little value except for the lawyers
involved. It's one of those great american myths.
[begin tangent]
People may claim they sued someone and got $10K or $50K or whatever
but if you investigate further what they really mean you will find in
many many cases (particularly marginal ones, blatant ones are usually
a different story, but only really blatant ones), is that their
attorney took on the case, cajoled the other party somehow into
believing it would be cheaper to settle, and then managed to write up
a bill that about covered the settlement (oh, you think contingency
fees are all they can charge? No no no my friend, that is the minimum
they are guaranteed to charge!) But that's a lousy story to tell your
bar buddies, isn't it?!
Anyhow, that's off on a tangent, but justice has very little or
nothing to do with our current "justice" system, unfortunately. It's
been taken over by slimy operators with law degrees, and in fact much
of what I describe is considered absolutely good practice within the
law profession (i.e. if they take it on contingency, they take all the
financial risk, so why *shouldn't* they get virtually all of the
proceeds? You're just merchandise, the sooner people realize this the
sooner this dangerous myth will be squelched.)
For an interesting book on the subject try: "The Litigation
Explosion", Walter Olsen, Dutton, NY, 1991. You don't have to take my
word for it, you can find a dozen other reputable and recent books
which generally come to the same conclusion: The public is being duped
by the legal profession, and no one is doing anything about it
(they're all afraid they'll be sued, and besides, who ya gonna call? A
lawyer??? The rats guard the cheese.)
Anyhow, I realize it's fun to argue about some hypothetical legal
system that we all exist, like imagining what heaven must be like or
similar.
[end tangent]
>Also, Barry Shein brought up
>the issue of reasonable expectations. I think most people assume
>a certain pervasive umbrella of legal protection; that is, when
>dealing with a BBS or any other business, many people would
>assume the policies of that business must be "safe", otherwise
>they would not be "allowed" by law. This assumption may be
>naive, but it is common, and relevant to informed consent.
They are safe, and just as importantly they are reasonably disclosed.
Merely allowing your identity to be known is not generally considered
negligence unless some agreement has been made to not make your id
known.
There is nothing novel about BBS's in this regard. I can probably go
to your town hall or motor vehicle bureau or the IRS or a credit
agency (if I am a merchant, not a terribly exclusive club) and find
out a lot about you. If I do something untoward with that information
*I* am responsible, not the institution that provided that information
(in general, and so long as that harm did not arise out of incorrect
or malicious information which is generally the claim against credit
bureaus, not merely giving it out, your complaint is that the
information was correct!)
If you sign up for any number of services or publications I can buy
yours and everyone else's name and address for a fee (unless there is
some specific agreement not to sell it) in the form of mailing lists.
Again, I would be responsible for abusing that information, not the
people who sold it to me.
Etc etc. Universities are often sieves in this regard, Boston
University is notorious for selling their student's info to direct
mail houses (and they're a private institution, so if there's any
dispute about govt vs private this ain't one of them.)
You go to church on Sunday, I walk up to your pastor as you walk out
the door and say: Reverend, who is that fellow that just walked by? I
know I knew him in college, but can't for the life of me remember his
name! The rt rev obliges, I look you up, go to your house later and
kill you. Do you think the reverend is culpable? What about your boss
if you are in a position dealing with the public (what was the name of
that guy who was at the counter earlier, big fellow, blue hair, blonde
eyes?)
etc etc etc.
It's just not enough to pin culpability.
You can't just stretch the meaning of safety and responsibility to
such extremes. At least the courts do not seem to agree with your
characterizations.
>Second point: Can it really be that easy for each of us to waive
>our normal protections under the law?
What "normal" protections are these? I have never heard of any such
"normal" protections. Are you sure you're not hiding behind a
legalese-ish phrase here that actually has no meaning?
>If so, many of the pro-
>tections of law would seem to have no practical applications. I
>would expect to see signs at the entrances to all businesses,
>saying, "Abandon all hope, ye who enter here", and thereby ab-
>solving the proprietors of all liability. Common sense -- er,
>excuse me, I mean my instincts tell me that our duties to one
>another under the law cannot be so easily put aside.
No, this is called nihilism. Some things are ok, some aren't. It's a
matter of value weighting, the sense of the society, common standards,
etc.
You can't just equate everything with everything because you can
define a group general enough to include both items, just toss it all
under the rubric "safety" and be done with it. That isn't at all
enough to make an argument out of.
>Finally, to muddy the waters just a bit further, let me raise a
>new issue: What would the reaction have been if my hypothetical
>case had featured a user below the age of consent? It seems to
>me the doctrine of "attractive nuisance" has been invoked before
>in prosecuting BBSs in connection with obscenity or pornography
>charges. Would it have any application in a case like this?
Possibly, but only if one can prove that it was reasonable to expect
that this due care could be exercised. The anonymity of a BBS tends to
some extent (tho not entirely) to put them in a bit safer position
than say a storekeeper who can plainly see who s/he is dealing with.
For example, if a child gets a hold of a subscription card for a
sexually explicit magazine, fills it out (we don't have to assume a
small child, a 12 year old is sufficient) and even signs that s/he is
over 18 yrs of age and encloses the money properly would you expect
the magazine to be held liable?
It's really quite similar in many ways (now watch, the answer will be
"yes"...)
Mike Godwin
>I will take issue with both of these arguments, first one first. In
>browsing through my copy of Black's Law Dictionary, I found a legal
>concept which appears to correspond to my instincts in this matter.
It is always a bad idea to suppose that one can assemble a legal theory
from a law dictionary.
>It is an old concept in English law called "Invitation", concerning
>the responsibilities of shopkeepers toward their customers, fair
>organizers toward the fair's patrons, and so forth:
Online services have never been held to be a "place" for the purpose of
transforming customers into business invitees.
>Does this doctrine still have application today? If so, why
>should it not be applicable to "premises" located in cyberspace?
Because the doctrine of duties to invitees derives from physical hazards
on physical premises.
>First, referring to my hypothetical case, it does not seem obvi-
>ous to me that in consenting to a real-name policy, John Q.
>Publius clearly intended to consent to the level of risk he
>ultimately found in that policy.
What makes you think "clear" consent is required?
>It seems to me that conference system applicants cannot always be
>presumed to fully understand what they are getting themselves
>into.
So far, there have been no cases of conference-system users being stalked
on the basis of information given out by the system. So, it's unclear that
they're "getting themselves into" anything risky at all.
Moreover, at some point individuals do have to be held responsible for
their own actions and for the risks they take.
>It seems to
>me the doctrine of "attractive nuisance" has been invoked before
>in prosecuting BBSs in connection with obscenity or pornography
>charges.
I've never seen such a case.
Mahatma Kane-Jeeves
>And what about the potential harm to other users *from* an anonymous
>user? Is that not a quandary? Does that not, by a similar stretch of
>the imagination, seem to hold the BBS somehow liable to the harmed
>party?
Everyone always brings up this supposed risk of harm from anonymous
users. I don't get it. Imagine a BBS whereon everyone uses a
pseudonym; how can anyone harm anyone? Oh sure, they can talk nasty
to one another, but real harm only becomes possible when real names
are used, right? This seems to me like the ideal picture, and I've
never understood why anyone would object to it as a general model,
let alone why the objections are so universal.
Now if someone were to use their real name *despite* a BBS's general
policy, then they have created their own risk, or at least their
consent to that risk is far clearer.
>Besides, the whole thing is more hypothetical than you might imagine.
Not for me; my feelings about this are based largely on personal
experience. I've been involved in electronic conferencing of var-
ious sorts for about 15 years now. Early on, I observed several
unfortunate incidents involving friends who used their real names on
the air, or on BBSs; more than once, I experienced bad results
myself. These early experiences are the foundation of my current
thinking in the matter.
This is probably one of the most central issues in the discussion.
People tend to think of real-name policies as being pretty innocu-
ous. If I felt the same way, I would also probably feel that li-
ability for such a policy was ridiculous. But the more I've looked
into it, the more important the issue has seemed to me, for a whole
host of reasons. I won't go into it all here; I co-wrote a good-
sized article on the subject for Fidonews about a year ago, and if
anybody wants to read it, e-mail me (m...@world.std.com) and I'd be
glad to send you a copy. I'd have more to add if I wrote it today.
But back to the question of risks to safety. I don't know what the
statistics might be in regard to the risks of real-name exposure in
mass media, and in fact I can't conceive of any way to collect such
statistics. But it's interesting to note that computer conferencing
systems are now virtually alone among major media in refusing to
protect the identities of amateur participants, and that probably
says something. (I've often thought that talk radio, with its
policy of using only the first names of callers on the air, would be
a good model for network conferencing.)
>There is nothing novel about BBS's in this regard. I can probably go
>to your town hall or motor vehicle bureau or the IRS or a credit
>agency (if I am a merchant, not a terribly exclusive club) and find
>out a lot about you. If I do something untoward with that information
>*I* am responsible, not the institution that provided that information
>(in general, and so long as that harm did not arise out of incorrect
>or malicious information which is generally the claim against credit
>bureaus, not merely giving it out, your complaint is that the
>information was correct!)
You are quite right that this question can be construed to have
broad applications throughout our society. In fact, I suspect a
right to anonymity online may be crucial to preserving the slightest
shred of privacy in our not-too-distant future. See my article.
In a previous message you brought up the phone company ("should they
be liable for publishing the phone book?"), and now you raise the
issue of credit bureaus. Of course, each such example has its own
particulars, and I don't want to get too sidetracked into examining
each one. But it is interesting to note that both of your examples
are classic 600-pound gorillas, who have had the clout to shield
themselves from this kind of frequent liability. For example, if
you examine the Fair Credit Reporting Act, you will find a section
which specifically exempts commercial information bureaus from
normal liabilities for defamation when they circulate false informa-
tion about people. They lobbied for it, they got it.
My grandfather once told me that there was a lot of vocal opposition
to the publication of phone directories, too, before people got used
to it. I wouldn't be surprised if it was resolved in the same way.
It's funny how, once we get used to being abused, we start defending
everyone else's right to abuse us in the same ways. What we seem to
have here is a classic "slippery slope", with a dash of conditioned
submissiveness-to-authority thrown in. Kind of scary if you ask me.
And while you are certainly right in saying that anyone who misuses
available information is responsible for their actions, it does not
necessarily follow that no one else can have any liability.
>For example, if a child gets a hold of a subscription card for a
>sexually explicit magazine, fills it out (we don't have to assume a
>small child, a 12 year old is sufficient) and even signs that s/he is
>over 18 yrs of age and encloses the money properly would you expect
>the magazine to be held liable?
>
>It's really quite similar in many ways (now watch, the answer will be
>"yes"...)
Yes (I couldn't resist :). Well, actually I don't know, but isn't
it true in general that a merchant who sells sexually explicit
material, or any other prohibited material (such as cigarettes), to
a minor is liable, even if the minor misrepresents him/herself? I
remember that back in my youth, I had arguments with a number of
liquor store owners who thought my ID was false (it wasn't, I just
looked young, which made me a little testy). They were universally
convinced that if I was underage, and they sold me liquor, they
would be in trouble. Based largely on those experiences, I've
always been under the impression that the burden is on the merchant
to be certain that a sale is legal, period. I could be wrong
(liquor store owners are not generally recognized as reliable legal
authorities), but I might be right.
It's frustrating that neither of us has the time or resources to
discover concrete facts to back up our opinions. But it is inter-
esting to see how widely our instincts and impressions diverge.
--- mkj
Mahatma Kane-Jeeves
>It is always a bad idea to suppose that one can assemble a legal theory
>from a law dictionary.
I can't argue with you there. I realize that only a fool would
attempt to mount legal arguments given my limited resources, and
that is in fact the only qualification I claim to possess. It's
been fun, though, right? And educational, at least for me.
>>It is an old concept in English law called "Invitation", concerning
>>the responsibilities of shopkeepers toward their customers, fair
>>organizers toward the fair's patrons, and so forth:
>
>Online services have never been held to be a "place" for the purpose of
>transforming customers into business invitees.
Your wording is ambiguous. Have they ever been clearly held *not*
to be such a place?
>Because the doctrine of duties to invitees derives from physical hazards
>on physical premises.
That appears to me to be a mere semantic red-herring, having no
foundation in the obvious intent of the doctrine. Why would this
principle which is sound in a physical location be unsound in a non-
physical one? I am also curious as to why you say the doctrine is
limited to "physical hazards"; do you mean it doesn't apply to non-
physical injuries suffered on physical premises? How odd.
>So far, there have been no cases of conference-system users being stalked
>on the basis of information given out by the system. So, it's unclear that
>they're "getting themselves into" anything risky at all.
I assume by "no cases" you mean no court cases, and that may be
true. But I myself have observed cases of users being stalked or
otherwise annoyed, myself not least among them. And although case
law is certainly important, I don't imagine you meant that it is our
only protection, did you?
With regard to whether conference users are getting themselves into
anything risky, as I said to Barry Shein, it is probably impossible
to assess the risk on a rigorous statistical basis. But my own
personal experiences and observations lead me to believe that the
risks are not altogether insignificant.
In any event, we are all aware of cases of stalking which have
resulted from exposure in other media. The nets may have been
relatively immune so far, because they have been accessible to only
a small audience. But this is changing rapidly; the nets are grow-
ing at an amazing pace, and will soon be on a par with other mass
media. I see nothing in principle which makes this medium less
risky than others in regard to stalking, do you?
--- mkj
jason 'Think!' steiner
>
> My instincts tell me (1) that the exposure of users to unnecessary
> risks is wrong, and (2) that when such a wrong results in serious
> harm to someone, there ought to be a legal remedy.
#2 is part of the root of your problem. it's a tendancy to legislate
away any wrongdoing or inconvenience. and it doesn't work. legislation
should -not- be treated as a cure-all. it is too easily perverted to
hurt the innocent & too costly to enforce. such a solution also
removes responsibility (and therefore privilege) from the individual.
> The arguments offered thus far fall into two main categories:
>
> (1) The BELL's actions cannot be characterized as negligent,
> and
> (2) Hypothetical user John Q. Publius, by consenting to the
> real-name policy of the BELL, consented also to any risks thereof.
>
>
> Now on to the issue of consent, about which I would like to raise
> a couple of related points.
>
> First, referring to my hypothetical case, it does not seem obvi-
> ous to me that in consenting to a real-name policy, John Q.
> Publius clearly intended to consent to the level of risk he
> ultimately found in that policy. Also, Barry Shein brought up
> the issue of reasonable expectations. I think most people assume
> a certain pervasive umbrella of legal protection;
as you've found from the level of objections to your original post,
such is not the case. those who argue for legal protection rarely
consider that such "protection" could one day be used to harm them in
the future. the many people on the net who hold unpopular opinions
-do- consider that a threat & react to suggestions like yours accordingly.
> that is, when dealing with a BBS or any other business, many people
> would assume the policies of that business must be "safe",
> otherwise they would not be "allowed" by law. This assumption may
> be naive, but it is common, and relevant to informed consent.
that it is common does nothing to make it less false. to paraphrase
Ben Franklin, "Those who give up liberty for security soon have
neither". the government should -not- take a parental role in
prohibiting anything that is not "safe". people who assume that it
is, or should be, are misinformed. and as we all know, ignorance is
no excuse.
> It seems to me that conference system applicants cannot always be
> presumed to fully understand what they are getting themselves
> into. For example, someone commenting on this issue expressed
> doubt as to whether John Q. Publius's phone number and address
> could actually be found, given only his name to go on. And I
> think that many people who would balk at delivering a speech
> before an audience of tens of thousands, or who would die of
> fright appearing on a global television broadcast, will nonethe-
> less blithely submit comments to network conferences, probably
> without fully understanding the implications of that decision.
again, ignorance is no excuse.
> An experienced sysop will almost certainly have a significant
> advantage over most users in evaluating the risks of this medium.
> From this advantage I would expect certain responsibilities to
> derive.
the risks are still taken by the users, not the sysop. as a result,
any results are the -user's- responsibility. if i gamble and lose
it is -my- responsibility, not the responsibility of the owners
of the gambling establishment, unless they mislead me in some way.
unless BELL has mislead John Q. Luser they are -not- liable.
> Second point: Can it really be that easy for each of us to waive
> our normal protections under the law? Does a user's consent to
> use a real name online actually end the inviter's duty to care
> for that user's safety in this regard?
the inviter has -no- duty. they are offering a service, with certain
terms, that the user is able to accept or decline as he/she wishes.
> If so, many of the pro-tections of law would seem to have no
> practical applications. I would expect to see signs at the
> entrances to all businesses, saying, "Abandon all hope, ye who
> enter here", and thereby ab-solving the proprietors of all
> liability.
again, -what- protections of the law?
> Common sense -- er, excuse me, I mean my instincts tell me that our
> duties to one another under the law cannot be so easily put aside.
apparently, common sense isn't so common. why do your instincts tell
you that individuals who provide tools be held responsible for the
uses to which their customers put them? the -customer- did the
firebombing, not BELL. where is the real offender in the midst of all
this? why are we even considering BELL's liability when the -real-
wrongdoer is at large? because BELL is supposedly a "big bad corporation
with lots of money" just ripe for a lawsuit?
jason
--
`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`
`,` "Read my lips: Utopia!" - Bill Clinton paraphrased `,`
Shawn K. Quinn
(lac...@netcom.com):
HL> If I own an auditorium and you rent it from me, and you give a
HL> controversial speech, and then someone vandalizes your house, it's not my
HL> fault. If I own a store, and I allow you to post a controversial notice in
HL> my shop window, but only under the condition that your name appears on the
HL> notice, and you agree, then it's not my fault if someone vandalizes your
HL> house. If I own a soap factory, and you get a soap box produced by me, and
HL> stand on it to deliver your message....
I wonder if anyone has ever sued a soap factory for that... But seriously, this
touches on another point I've wondered about: how are we going to stop abuses of
the legal system in these instances? The late 80s and early 90s are almost
becoming the "age of the lawsuit."
Shawn K. Quinn <skq...@urchin.fidonet.org>
PGP public key fingerprint: 9F A5 0B D1 3A FA 5A FF A5 FA 2E 6D 5E A5 8F 7A
Barry Shein
From: m...@world.std.com (Mahatma Kane-Jeeves)
>>And what about the potential harm to other users *from* an anonymous
>>user? Is that not a quandary? Does that not, by a similar stretch of
>>the imagination, seem to hold the BBS somehow liable to the harmed
>>party?
>
>Everyone always brings up this supposed risk of harm from anonymous
>users. I don't get it. Imagine a BBS whereon everyone uses a
>pseudonym; how can anyone harm anyone?
I don't understand, you are sure that harm can come from BBS users
when they know your name, but not when you don't know theirs? Huh?
Just turn your own example around which started this:
You get into a disagreement with mickey_mouse@bell. MM threatens to
nail your cat to your door. You don't give it any mind (but you save
the msg.) You get home that night and there's your cat nailed to the
door. So you call Bell and say "hey, who is this mickey_mouse guy I
want to report him/her/it to the police...etc". And they say "damned
if we know, he's one of those anonymous users you sued us over not
having last year so we changed our policy."
You don't find that analogous? I do.
At the very least hanging ones' real name out there might temper one a
bit, and I believe that's basically what, um, Bell's policies are
claimed to be motivated by.
(To The Net At Large: Let's not get into whether or not it's really
him who did this, that's a tangent, w/o his ID you can't even politely
ask him if he wants his nails back, anyhow, there's certainly enough
there that it would be worth looking into.)
>but real harm only becomes possible when real names
>are used, right?
So we just give in and encourage a paranoid society where no one dare
let anyone know who s/he is?
>>Besides, the whole thing is more hypothetical than you might imagine.
>
>Not for me; my feelings about this are based largely on personal
>experience.
I was referring to the concept of getting justice from the courts for
something like you described.
>You are quite right that this question can be construed to have
>broad applications throughout our society. In fact, I suspect a
>right to anonymity online may be crucial to preserving the slightest
>shred of privacy in our not-too-distant future. See my article.
I'm not sure I buy your equation of anonymity with privacy. I don't
believe we can run a society where one's personal security hangs
entirely on their anonymity, and that's what you are really saying.
Oh, some things, surely I don't want people to know everything about
me, and I want to keep channels for that info controlled (e.g. the
whole flap about the videotapes that congressman rented.)
I think tho what you are actually talking about is FREE anonymity. Do
you agree that you can have all the anonymity you want *at a price*?
Perhaps anonymity as you describe is merely a commodity, and the only
real issue here is that you believe its cost is too high (yet you
certainly seem to recognize its value)?
>>For example, if a child gets a hold of a subscription card for a
>>sexually explicit magazine, fills it out (we don't have to assume a
>>small child, a 12 year old is sufficient) and even signs that s/he is
>>over 18 yrs of age and encloses the money properly would you expect
>>the magazine to be held liable?
>>
>>It's really quite similar in many ways (now watch, the answer will be
>>"yes"...)
>
>Yes (I couldn't resist :). Well, actually I don't know, but isn't
>it true in general that a merchant who sells sexually explicit
>material, or any other prohibited material (such as cigarettes), to
>a minor is liable, even if the minor misrepresents him/herself?
Yes, but that is exactly the distinction I was drawing, that's why I
used the example of sending in a subscription card to an explicit
magazine. I believe there is some distinction that in the case of a
retailer s/he can plainly see that the person is (or might be) a
minor, while in the case of certain types of mail-order one recognizes
that it's just not that easy. If anything I would tend to use that as
an argument to ease up on the retailer's responsibility, if the same
material can be had via mail by a minor with almost no chance of
prosecution then why pick on the retailer? Well, I guess because
retailers make it a tad too easy, comparatively.
So I think you just missed my point on that last example.
P.S. Point of Information - It is true that Compuserve is basically
anonymous, right?
Barry Shein
From: jste...@anwsun.phya.utoledo.edu (jason 'Think!' steiner)
>> My instincts tell me (1) that the exposure of users to unnecessary
>> risks is wrong, and (2) that when such a wrong results in serious
>> harm to someone, there ought to be a legal remedy.
>
>#2 is part of the root of your problem. it's a tendancy to legislate
>away any wrongdoing or inconvenience. and it doesn't work. legislation
>should -not- be treated as a cure-all.
You're being too knee-jerk libertarian. He didn't say anything about
legislation, he was asking who has the civil liability (i.e. torts.)
[more party-line stuff elided...]
Barry Shein
From: Shawn.K..Quinn@f7550.n106.z1.fidonet.org (Shawn K. Quinn)
>I wonder if anyone has ever sued a soap factory for that... But
>seriously, this touches on another point I've wondered about: how are
>we going to stop abuses of the legal system in these instances? The
>late 80s and early 90s are almost becoming the "age of the lawsuit."
As the word gets out that the only ones who ever make any money on
these silly suits are each party's lawyers the public will lose
interest. With luck someone, someday will realize to what extent the
legal profession by its total failure to self-regulate encouraged this
abuse of the public and something will be done. But I think the
natural back-pressure I mentioned first will help.
If you (anyone) ever get the urge to pursue one of these silly suits
(or even not-so-silly), as you walk into an attorney's office who's
broad-beamed smile welcomes you in and you are plied with fresh coffee
and donuts and your outrage empathized with and encouraged, repeat
these words to yourself over and over again:
Step into my parlor, said the spider to the fly...
You are the merchandise, you are today's lunch, your chances of ever
seeing a nickel versus your chances of paying this attorney thousands
(or just turning it all over to the attorney if they, not you, happen
to win something) are about as good as that fly's chances of getting
home on time tonight.
If lawyers were doctors then hospitals would be places where one of
them injects your arm with a disease and the other with the cure, and
both will expect to be paid.
Mahatma Kane-Jeeves
>> My instincts tell me (1) that the exposure of users to unnecessary
>> risks is wrong, and (2) that when such a wrong results in serious
>> harm to someone, there ought to be a legal remedy.
>
>#2 is part of the root of your problem. it's a tendancy to legislate
>away any wrongdoing or inconvenience. and it doesn't work. legislation
>should -not- be treated as a cure-all. it is too easily perverted to
The thought I had in my mind was of a phrase which I believe comes
from old English common law: "No wrong without a remedy". This is
obviously a mere ideal, which can never be achieved as a practical
goal. But it reflects the philosophy that one purpose of law is to
remove the need -- and therefore the justification -- for people to
fight amongst themselves in attempts to achieve their own "justice".
You seem to be of the opinion that, at least in certain cases, we
should have the freedom to harm one another without fear of legal
recourse. I find this a poor ideal.
>as you've found from the level of objections to your original post,
>such is not the case. those who argue for legal protection rarely
>consider that such "protection" could one day be used to harm them in
>the future. the many people on the net who hold unpopular opinions
>-do- consider that a threat & react to suggestions like yours accordingly.
I find it ironic and incomprehensible that you consider my
suggestion (if it can be characterized as such) to be a threat to
those who hold unpopular opinions. How does that work? Unless, of
course, the unpopular opinion you happen to hold is that "never give
a sucker an even break" is a legitimate business philosophy!
As a frequent holder of unpopular opinions, I myself find real-name
policies to be the real threat. In fact, the primary practical
purpose of real-name policies is to suppress unpopular speech,
although sysops usually couch this goal in more palatable terms.
Take for example the words of Cliff Figallo in this conference
regarding his real-name policies on The WELL. In a message of Thu,
17 Dec 1992 20:32:33 GMT, he wrote:
> Since the WELL makes it clear that users are responsible for what
> they post on the WELL, we thought it important that they be
> identifiable.
> ... by having a real name associated with every account, there is
> less tendency for users to be abusive of other users.
If this isn't a euphemistic way of saying that they suppressed
unpopular speech by creating a pervasive threat of retaliations
among users, I don't know what it is. (No offense meant, Mr.
Figallo; I'm sure your intentions were benign, but in my opinion,
your policy wasn't.)
>> that is, when dealing with a BBS or any other business, many people
>> would assume the policies of that business must be "safe",
>> otherwise they would not be "allowed" by law. This assumption may
>> be naive, but it is common, and relevant to informed consent.
>
>that it is common does nothing to make it less false. to paraphrase
>Ben Franklin, "Those who give up liberty for security soon have
>neither". the government should -not- take a parental role in
>prohibiting anything that is not "safe". people who assume that it
>is, or should be, are misinformed. and as we all know, ignorance is
>no excuse.
The one freedom which lawful liberty must NOT protect is the freedom
to harm others unnecessarily. This includes the "freedom" of the
majority to persecute those of us who hold unpopular opinions.
I agree with you in one thing: I am very much against any "parental"
philosophy of government, such as drug or helmet laws. I believe we
have the moral right to take whatever risks we choose -- as long as
we make that choice freely and with full understanding. But it does
not necessarily follow that we have the right to lead others into
danger; nor do I believe that everything which looks like consent is
always sufficient to be consent for purposes of the law.
>the inviter has -no- duty.
This does not correspond to the law as I understand it.
> ... they are offering a service, with certain
>terms, that the user is able to accept or decline as he/she wishes.
As I've already said, I think there's also an issue of *informed*
consent. Otherwise, why do we see so many warning labels all over
everything? If the BELL had put a warning message on their login
screen, detailing the worst-case drawbacks of real-name policies,
I'd have less objection. (I think they'd also have fewer users, and
we'd soon see fewer boards with real-name policies.)
>> If so, many of the pro-tections of law would seem to have no
>> practical applications. I would expect to see signs at the
>> entrances to all businesses, saying, "Abandon all hope, ye who
>> enter here", and thereby ab-solving the proprietors of all
>
>again, -what- protections of the law?
Since you are the second person to ask this, it is obvious I was not
clear. I intended to refer to the normal protections provided by
the duties traditionally imposed on an inviter.
--- mkj
Mike Godwin
>>Online services have never been held to be a "place" for the purpose of
>>transforming customers into business invitees.
>
>Your wording is ambiguous. Have they ever been clearly held *not*
>to be such a place?
My wording is hardly ambiguous. But there have never been any cases in
which online services have been held to be a "place" for the purposes of
defining customers as business invitees, and this is probably because no
one has thought it was a legal theory worth pursuing. The law of invitees
is grounded in protecting people from *physical* hazards on *physical*
premises that they might not otherwise know about. In your case, we have
a nonphysical "premise," and a hazard (nonanonymity) that the users know
about.
>>Because the doctrine of duties to invitees derives from physical hazards
>>on physical premises.
>
>That appears to me to be a mere semantic red-herring, having no
>foundation in the obvious intent of the doctrine.
I'm afraid you don't know what the intent of the doctrine is, then. What I
stated here about the doctrine of duties to invitees is entirely correct.
>Why would this
>principle which is sound in a physical location be unsound in a non-
>physical one?
Look, if you want to create a new law regarding invitees, fine. But let's
not pretend there's any history to support this law, okay? You can't have
it both ways--either you're deriving law from precedent, or you're making
new law altogether. If you think it would be a good idea for such new law
to exist, fine, but the doctrine of duties to invitees derives from
precedents, and the precedents involve physical premises.
> I am also curious as to why you say the doctrine is
>limited to "physical hazards"; do you mean it doesn't apply to non-
>physical injuries suffered on physical premises? How odd.
"Non-physical injuries?" Such as what?
>I assume by "no cases" you mean no court cases, and that may be
>true. But I myself have observed cases of users being stalked or
>otherwise annoyed, myself not least among them.
Your hypothetical case was quite specific: A service denies anonymity,
then "somehow" manages to disclose address data about a user. The user is
stalked *physically* as the result of this disclosed data. Which cases
like this have you observed? If you haven't observed any, and there
haven't been any court cases with this fact pattern, why should the law be
altered to address a problem that has not manifested itself?
>And although case
>law is certainly important, I don't imagine you meant that it is our
>only protection, did you?
If you are proposing new law, fine. But your consultation with Black's Law
Dictionary suggests that you were trying to say that *old* law supports
your theory.
Mike Godwin
>Take for example the words of Cliff Figallo in this conference
>regarding his real-name policies on The WELL. In a message of Thu,
>17 Dec 1992 20:32:33 GMT, he wrote:
>
>> Since the WELL makes it clear that users are responsible for what
>> they post on the WELL, we thought it important that they be
>> identifiable.
>> ... by having a real name associated with every account, there is
>> less tendency for users to be abusive of other users.
>
>If this isn't a euphemistic way of saying that they suppressed
>unpopular speech by creating a pervasive threat of retaliations
>among users, I don't know what it is.
Apparently, then, you don't know what is. No one on the WELL worries about
retaliation. Nonanonymity simply means that if you act nastily or
foolishly, your nasty or foolish statements will be remembered, and that
this will tend to cause shame in the present and lack of credibility in
the future.
Now, Mahatma, perhaps you come from a place where the only thing that
makes people nice is the threat of physical violence, but the WELL is a
little bit more civilized than that.
Mike Godwin
>The thought I had in my mind was of a phrase which I believe comes
>from old English common law: "No wrong without a remedy".
This explains your mistake. The phrase is "No right without a remedy."
That is, if there's no remedy, then there's no enforceable right.
Hans Lachman
>
>You seem to be of the opinion that, at least in certain cases, we
>should have the freedom to harm one another without fear of legal
>recourse. I find this a poor ideal.
Wake up dude, nobody has or wants that kind of freedom. We
already have laws that give you a legal recourse against
those who harm you. Where have you been?
You've been trying real hard to argue that you should be able
to sue not only the party who harmed you, but anyone who is
even peripherally involved in the circumstances in which the
harm occured. Are you a card-carrying member of the "Committee
to Increase Litigiousness in America"? I still want to know
(refer to my earlier post) whether you would sue the soap
manufacturer if you got attacked after standing on one of
their soap boxes to deliver a controversial speech. I hope
you are starting to realize how absurd this discussion is.
Hans Lachman
lac...@netcom.com
Clayten Hamacher
>everyone else's right to abuse us in the same ways. What we seem to
>have here is a classic "slippery slope", with a dash of conditioned
>submissiveness-to-authority thrown in. Kind of scary if you ask me.
It's funny how anytime someone is trying to convince people that everything
done by the government or by a corporation of more than 3 people is bad that
they go on about how much people are being conditioned for
'submissiveness-to-authority'.
I don't know why they can't just accept the fact that certain people don't
think it's a corporations fault if someone using a service of theirs is an
idiot! If you don't want to use a service where someone has your info then
don't, they tell you that you can not be annonymous so you go to a service
that will let you be annonymous. If you accept their offer of service then
anything resulting from lack of anonymity should be your fault!
This is totally different if they knew a weird was stalking their customers,
then if they didn't tell their applicants I would find THEM liable.
P.S. If a credit agency reports false data then they should be charged for
whatever problems arise.. That is a stupid law that gives corporations too
much power. If they want to sell your info then they better make sure it's
correct!.
--
Clayten_...@Mindlink.bc.ca Land of the rising snow.
Clayten Hamacher
>
>You get into a disagreement with mickey_mouse@bell. MM threatens to
>nail your cat to your door. You don't give it any mind (but you save
>the msg.) You get home that night and there's your cat nailed to the
>door. So you call Bell and say "hey, who is this mickey_mouse guy I
>want to report him/her/it to the police...etc". And they say "damned
>if we know, he's one of those anonymous users you sued us over not
>having last year so we changed our policy."
>
>You don't find that analogous? I do.
>
>At the very least hanging ones' real name out there might temper one a
>bit, and I believe that's basically what, um, Bell's policies are
>claimed to be motivated by.
You've got it wrong.. BELL would have the name of annonymous users, otherwise
how would they bill them? By annonymous people meant that BELL would put
Mickey_Mouse@Bell on all messages from John_Smith@Bell..
Mahatma Kane-Jeeves
>>users. I don't get it. Imagine a BBS whereon everyone uses a
>>pseudonym; how can anyone harm anyone?
>
>
>You get into a disagreement with mickey_mouse@bell. MM threatens to
>nail your cat to your door. You don't give it any mind (but you save
>the msg.) You get home that night and there's your cat nailed to the
>door. So you call Bell and say "hey, who is this mickey_mouse guy I
>want to report him/her/it to the police...etc". And they say "damned
>if we know, he's one of those anonymous users you sued us over not
>having last year so we changed our policy."
This is so simple I'm not sure how to make it clearer. I postulated
a BBS where *everyone* was pseudonymous by default. If "mickey"
doesn't know who I am, how the hell did he find my address? (OK,
before some of you ultra-hackers out there decide to show me, I know
there are ways, but the people who are capable of it are rare.)
Furthermore, I never suggested that the system administrators
shouldn't know the users' real names. In fact, I think most systems
probably should keep a list of the real names -- on a secure offline
system, available only in case of emergency or a legal warrant.
What they definitely should NOT do is to broadcast the information
to the whole @#$%&*! network as a matter of policy!
Now, if I decide on my own to use my real name on the nets, that's
my problem, nobody else's. But if a system encourages or entices or
pressures people into that kind of exposure -- for example, by
inviting people to use the system, perhaps even advertising or
promoting it, and then imposing a real-name policy without insuring
that new users know all the ramifications -- then the system becomes
at least partially responsible for any unfortunate results. That's
my whole thesis in a nutshell.
>So we just give in and encourage a paranoid society where no one dare
>let anyone know who s/he is?
It's not a question of letting "anyone" know; it's a question of
letting EVERYONE know! Remember, there's something like 20,000
readers in many newsgroups; the last time I looked at Brian Reid's
stats, the most popular groups were each seen by over 200,000 peo-
ple! In an audience that large, you are bound to find examples of
every personality type: agents of various governments, religious
fanatics, the mentally ill, con artists, assorted nuts and predators
et al ad infinitum. When you post here under your real name, you
are handing out potential invitations to ALL of them! As a recent
tagline noted, total paranoia is total clarity.
Celebrities and other media professionals give up a lot of privacy
in exchange for the rewards of their careers, but even they retain
the right to use stage names and to try to protect their real iden-
tities, their homes and families, as best they can. Amateur confer-
ence participants should have at least as much right to do the same.
Al Pacino has a good line in his newest flick; something like,
"There are two kinds of people in this world, those who run and
hide, and those who stand up and face the music. Hiding is better".
>I'm not sure I buy your equation of anonymity with privacy. I don't
>believe we can run a society where one's personal security hangs
>entirely on their anonymity, and that's what you are really saying.
>Oh, some things, surely I don't want people to know everything about
>me, and I want to keep channels for that info controlled (e.g. the
>whole flap about the videotapes that congressman rented.)
You are right on the money, and this rapidly becomes a very deep
subject. I don't have all the answers. But consider the role the
networks are likely to play in our future -- banking, entertainment,
purchases, personal communications, things we can't even dream of.
Widespread personality profiling will become automated, cheap and
ubiquitous. How will we maintain the privacy of even our innermost
thoughts, unless we can shield ourselves with anonymity here?
Moreover, I think you are wrong if you think that we can keep the
channels for ANY info controlled in the absence of anonymity. They
certainly aren't controlled now, and the "privacy legislation" that
everyone is clamoring for will provide little but a false sense of
security. This may be why the info bureaus support it.
But there are rational ways to run a society with a substantial
amount of anonymity. David Chaum's article in a recent Scientific
American (Aug 92?) on an anonymous transaction protocol, using
"smart cards" and public encryption and signature techniques, is a
good example. Will society ever actually adopt such protections? I
doubt it, but I'm not ready to entirely give up.
>I think tho what you are actually talking about is FREE anonymity. Do
>you agree that you can have all the anonymity you want *at a price*?
>
>Perhaps anonymity as you describe is merely a commodity, and the only
>real issue here is that you believe its cost is too high (yet you
>certainly seem to recognize its value)?
Perhaps the question is whether we will commoditize privacy on the
nets or anywhere else. It is certainly valuable, and as its value
becomes better known, there will be those who will attempt to sell
it. We should evaluate what is in the best interests of society.
Currently, privacy does not seem to be available for any monetary
price. The only people who have any privacy left are those who do
not participate normally in society, i.e. minors, the homeless,
criminals, etc.
>>it true in general that a merchant who sells sexually explicit
>>material, or any other prohibited material (such as cigarettes), to
>>a minor is liable, even if the minor misrepresents him/herself?
>
>Yes, but that is exactly the distinction I was drawing, that's why I
>used the example of sending in a subscription card to an explicit
>magazine. I believe there is some distinction that in the case of a
>retailer s/he can plainly see that the person is (or might be) a
>minor, while in the case of certain types of mail-order one recognizes
>that it's just not that easy. If anything I would tend to use that as
>an argument to ease up on the retailer's responsibility
Once again, if we make it that easy for merchants to sidestep their
responsibilities, there is no sense trying at all. If a liquor or
cigarette or adult book merchant wants to sell to minors, by your
logic he could just hire a blind clerk, or set up his business in
some way to easily sidestep the responsibility. If the legal re-
sponsibilities of a merchant are worth creating in the first place,
it is certainly worth enforcing them better than this.
>P.S. Point of Information - It is true that Compuserve is basically
>anonymous, right?
I've heard that you can finger people on Compuserve, and get their
real names that way, but I've never tried it. Dunno.
--- mkj
Karl Denninger
>>>And what about the potential harm to other users *from* an anonymous
>>>user? Is that not a quandary? Does that not, by a similar stretch of
>>>the imagination, seem to hold the BBS somehow liable to the harmed
>>>party?
>>
>>Everyone always brings up this supposed risk of harm from anonymous
>>users. I don't get it. Imagine a BBS whereon everyone uses a
>>pseudonym; how can anyone harm anyone?
>
>I don't understand, you are sure that harm can come from BBS users
>when they know your name, but not when you don't know theirs? Huh?
>
>Just turn your own example around which started this:
>
>You get into a disagreement with mickey_mouse@bell. MM threatens to
>nail your cat to your door. You don't give it any mind (but you save
>the msg.) You get home that night and there's your cat nailed to the
>door. So you call Bell and say "hey, who is this mickey_mouse guy I
>want to report him/her/it to the police...etc". And they say "damned
>if we know, he's one of those anonymous users you sued us over not
>having last year so we changed our policy."
Now wait a second.
TRUE anonymous user IDs are going to be damn difficult if BELL is taking
money for this service.
PSEUDONYMS, commonly known in the publishing trade as "pen names" are a
different matter entirely. I have allowed these on my system (MCSNet) at
times if I feel there is a good reason for it. That "good reason" does not
include the fact that someone feels like picking electronic fights.
However, I know who those people are. If you show up at my door with a
court order which demands the release of that information you'll get a
copy of the subscriber's signup form.
Therefore, there isn't a TRUE anonymous user capability. I suspect that
anyone who takes money from a person for a service is going to have a
difficult time having actual anonymous access going on; they have to know
who you are to bill you!
>>Not for me; my feelings about this are based largely on personal
>>experience.
>
>I was referring to the concept of getting justice from the courts for
>something like you described.
Which is certainly available if you have a "pen name", OR if you have a real
name. The point is that the "pen name" is in and of itself a bitch to
administer, AND it destroys accountability for those who don't have a court
case to press.
Therefore, my exceptions are few and far between. Same with most other
systems.
>I'm not sure I buy your equation of anonymity with privacy. I don't
>believe we can run a society where one's personal security hangs
>entirely on their anonymity, and that's what you are really saying.
You cannot possibly have an anonymous account unless you're walking into
someone's offices and paying cash for it. Preferrably in unsequenced small
pieces of paper with President's faces on them.
MOST providers will not provide that service at ANY price. The reason
should be obvious; if you do something that causes my machine to get
seized, I'm damn well going to know how to find you and put you thorough
the meat grinder in the legal system.
>So I think you just missed my point on that last example.
>
>P.S. Point of Information - It is true that Compuserve is basically
>anonymous, right?
No. If you present them with a court order, you can get the name <> user ID
correspondance. They do allow you to have a "Pen Name".
--
Karl Denninger (ka...@ddsw1.MCS.COM, <well-connected>!ddsw1!karl)
Data Line: [+1 312 248-0900]
Barry Shein
From: m...@world.std.com (Mahatma Kane-Jeeves)
>>You get into a disagreement with mickey_mouse@bell. MM threatens to
>>nail your cat to your door. You don't give it any mind (but you save
>>the msg.) You get home that night and there's your cat nailed to the
>>door. So you call Bell and say "hey, who is this mickey_mouse guy I
>>want to report him/her/it to the police...etc". And they say "damned
>>if we know, he's one of those anonymous users you sued us over not
>>having last year so we changed our policy."
>
>This is so simple I'm not sure how to make it clearer. I postulated
>a BBS where *everyone* was pseudonymous by default. If "mickey"
>doesn't know who I am, how the hell did he find my address? (OK,
>before some of you ultra-hackers out there decide to show me, I know
>there are ways, but the people who are capable of it are rare.)
You got it, I mean, who cares how he got it, that's not your problem
right now is it, you have to get your cat off the door, ugh, blech.
And it is a heckuva coincidence, isn't it?
>Furthermore, I never suggested that the system administrators
>shouldn't know the users' real names. In fact, I think most systems
>probably should keep a list of the real names -- on a secure offline
>system, available only in case of emergency or a legal warrant.
>What they definitely should NOT do is to broadcast the information
>to the whole @#$%&*! network as a matter of policy!
Well, Ok, that would fix it, I'll grant that.
>Now, if I decide on my own to use my real name on the nets, that's
>my problem, nobody else's. But if a system encourages or entices or
>pressures people into that kind of exposure -- for example, by
>inviting people to use the system, perhaps even advertising or
>promoting it, and then imposing a real-name policy without insuring
>that new users know all the ramifications -- then the system becomes
>at least partially responsible for any unfortunate results. That's
>my whole thesis in a nutshell.
Yes, but it rests on the assumption you state above, that the
individual had much less choice than in fact s/he did. It's based on a
fallacy. You lose the "case" Prima Facie, you haven't established what
you claim your case rests on, so there's no need to examine the
conclusions.
>Celebrities and other media professionals give up a lot of privacy
>in exchange for the rewards of their careers, but even they retain
>the right to use stage names and to try to protect their real iden-
>tities, their homes and families, as best they can. Amateur confer-
>ence participants should have at least as much right to do the same.
Yes, they do, and they do. Celebrities give up the ability to do a lot
of things you and I wouldn't think twice about doing. They don't hold
a department store or restaurant responsible because they get mobbed
when they walk thru the door and are recognized. C'mon, this point is
irrelevant, celebrities can create no special rights or liabilities to
help them. They might be able to curry favor, but what has that got
to do with anything?
>Al Pacino has a good line in his newest flick; something like,
>"There are two kinds of people in this world, those who run and
>hide, and those who stand up and face the music. Hiding is better".
You have every right to follow that personal philosophy, but why do
you expect the courts and the law to go to a heckuva lot of trouble,
and at someone else's expense, to uphold that view? Particularly in
all those cases where you can so easily take care of it yourself, even
if it is at some cost, certainly the mere cost is not a reason.
>Moreover, I think you are wrong if you think that we can keep the
>channels for ANY info controlled in the absence of anonymity.
Even with anonymity...
>But there are rational ways to run a society with a substantial
>amount of anonymity. David Chaum's article in a recent Scientific
>American (Aug 92?) on an anonymous transaction protocol, using
>"smart cards" and public encryption and signature techniques, is a
>good example. Will society ever actually adopt such protections? I
>doubt it, but I'm not ready to entirely give up.
Yes, in some spheres I don't disagree. I am not even 100% sure I
disagree with you on the rest of this (I disagree with the civil
liability aspect, but that doesn't mean I am sure the sentiment is
completely wrong.)
>Once again, if we make it that easy for merchants to sidestep their
>responsibilities, there is no sense trying at all. If a liquor or
>cigarette or adult book merchant wants to sell to minors, by your
>logic he could just hire a blind clerk, or set up his business in
>some way to easily sidestep the responsibility.
Well, it's not my logic, I believe it is how the laws etc currently
stand (my example was a minor mailing in a sub card for a magazine
s/he couldn't have if s/he walked into a retail store.) If I am wrong
I'd be glad to be corrected.
I suspect the area is grey and only practicality tends to protect the
mail-order type, this is not a perfect world, and chasing someone out
of state vs making a stink at your local PTA or church meeting are
far, far different kettles of fish. So the distant guy tends to get
away with it because, in effect, no one can pursue prosecuting him
except in the most outrageous cases (i.e. he's subject to the same
laws, but it is much harder to enforce.)
>If the legal re-
>sponsibilities of a merchant are worth creating in the first place,
>it is certainly worth enforcing them better than this.
Hey, you know, wish in one hand, s**t in the other, see which fills
first...(I'm in a cynical mood I admit.)
Barry Shein
From: Clayten_...@mindlink.bc.ca (Clayten Hamacher)
>You've got it wrong.. BELL would have the name of annonymous users, otherwise
>how would they bill them? By annonymous people meant that BELL would put
>Mickey_Mouse@Bell on all messages from John_Smith@Bell..
Maybe, maybe not, I know for a fact that this is not necessarily the
case, people who want to be anonymous can pay in cash. Remember, I
run/own a large service of this sort (The World, >2200 active, paying
customers), I know what of I speak...
jason 'Think!' steiner
> jste...@anwsun.phya.utoledo.edu (jason 'Think!' steiner) writes:
>
> >> My instincts tell me (1) that the exposure of users to
> >> unnecessary risks is wrong, and (2) that when such a wrong
> >> results in serious harm to someone, there ought to be a legal
> >> remedy.
> >
> >#2 is part of the root of your problem. it's a tendancy to
> >legislate away any wrongdoing or inconvenience. and it doesn't
> >work. legislation should -not- be treated as a cure-all. it is too
> >easily perverted to
>
> The thought I had in my mind was of a phrase which I believe comes
> from old English common law: "No wrong without a remedy". This is
> obviously a mere ideal, which can never be achieved as a practical
> goal. But it reflects the philosophy that one purpose of law is to
> remove the need -- and therefore the justification -- for people to
> fight amongst themselves in attempts to achieve their own "justice".
ok. what was the wrong here? assault. we already have laws against
assault. use them. don't assign the liability to someone who did
no wrong at all.
> You seem to be of the opinion that, at least in certain cases, we
> should have the freedom to harm one another without fear of legal
> recourse. I find this a poor ideal.
no, i am not of that opinion. i am of the opinion that innocent parties
should not be held responsible for the actions of others.
> I find it ironic and incomprehensible that you consider my
> suggestion (if it can be characterized as such) to be a threat to
> those who hold unpopular opinions. How does that work? Unless, of
> course, the unpopular opinion you happen to hold is that "never give
> a sucker an even break" is a legitimate business philosophy!
how does this work? let's say we have laws such as the ones you suggest,
where people can be punished or held liable for providing others with
information with which to carry out their crimes. with such a tangle
of laws -everyone- becomes a criminal and it becomes very easy to
bring charges against someone you don't like.
example: Agatha Christie had it in for her husband. so she engineered
her own "murder", and disappeared. the evidence all pointed to her
husband, so he was accused, tried and about to be hanged. fortunately,
someone noticed the (supposedly dead) Agatha in the town she had taken
off to and the execution was canceled. such a scheme would be even easier
if you don't need a manufactured murder to seriously inconvenience someone.
simply ask them which one of your neighbor's houses belongs to the
Joneses, firebomb it, and sue them for providing you with the information
to carry out the deed.
> As a frequent holder of unpopular opinions, I myself find real-name
> policies to be the real threat. In fact, the primary practical
> purpose of real-name policies is to suppress unpopular speech,
> although sysops usually couch this goal in more palatable terms.
>
> Take for example the words of Cliff Figallo in this conference
> regarding his real-name policies on The WELL. In a message of Thu,
> 17 Dec 1992 20:32:33 GMT, he wrote:
>
> > Since the WELL makes it clear that users are responsible for what
> > they post on the WELL, we thought it important that they be
> > identifiable.
> > ... by having a real name associated with every account, there is
> > less tendency for users to be abusive of other users.
>
> If this isn't a euphemistic way of saying that they suppressed
> unpopular speech by creating a pervasive threat of retaliations
> among users, I don't know what it is. (No offense meant, Mr.
> Figallo; I'm sure your intentions were benign, but in my opinion,
> your policy wasn't.)
some retaliations are good. it's known as positive peer pressure, and
it works. even if some of them were criminal the WELL still isn't
liable, as the actions are entirely the responsibility of the individual.
BTW, thank you for posting this. i had suspected you were just another
person disgruntled with the WELL's policies all along... if you don't
like it, don't use it.
> The one freedom which lawful liberty must NOT protect is the freedom
> to harm others unnecessarily. This includes the "freedom" of the
> majority to persecute those of us who hold unpopular opinions.
who harmed who here? again, we're completely skipping the actions of
the person who committed the -real- crime in order to go after someone
who merely upheld their end of a contract. sounds fishy to me.
> I agree with you in one thing: I am very much against any "parental"
> philosophy of government, such as drug or helmet laws. I believe we
> have the moral right to take whatever risks we choose -- as long as
> we make that choice freely and with full understanding.
ONCE AND FOR ALL: DID JOHN Q LUSER HAVE FULL KNOWLEDGE OF THE CONTRACT
HE MADE OR DIDN'T HE?!?! in any case, it's a moot point. he signed it,
he accepted it.
> But it does not necessarily follow that we have the right to lead
> others into danger; nor do I believe that everything which looks
> like consent is always sufficient to be consent for purposes of the
> law.
have a fun time living in a world where nobody can really be sure if
their partners have really consented or not. this should really make
things interesting. "Oh honey, I'm pregnant. But I didn't -think- it
could happen, and wouldn't have consented if I had, so what you did
was rape! Officer, arrest this man!"
> >the inviter has -no- duty.
>
> This does not correspond to the law as I understand it.
what duty do they have except providing full knowledge of the terms
of the contract?
> > ... they are offering a service, with certain
> >terms, that the user is able to accept or decline as he/she wishes.
>
> As I've already said, I think there's also an issue of *informed*
> consent. Otherwise, why do we see so many warning labels all over
> everything?
*BINGO* because of the litigous atmosphere that pervades this country
today, the very same one you're trying to spread. it's a strange, strange
world where someone who uses a lawnmower as a hedge trimmer & gets his
fingers cut off can sue the company because they didn't warn him not
to do that with his lawnmower.
> If the BELL had put a warning message on their login screen,
> detailing the worst-case drawbacks of real-name policies, I'd have
> less objection. (I think they'd also have fewer users, and we'd
> soon see fewer boards with real-name policies.)
this is parental. an adult should always assume the worst can happen.
unless you were somehow deceived there is no case.
> >> If so, many of the pro-tections of law would seem to have no
> >> practical applications. I would expect to see signs at the
> >> entrances to all businesses, saying, "Abandon all hope, ye who
> >> enter here", and thereby ab-solving the proprietors of all
> >
> >again, -what- protections of the law?
>
> Since you are the second person to ask this, it is obvious I was not
> clear. I intended to refer to the normal protections provided by
> the duties traditionally imposed on an inviter.
anonymity is not guaranteed anywhere.
jason
--
"I think all right thinking people in this country are sick and tired
of being told that ordinary decent people are fed up in this country
with being sick and tired. I'm certainly not, and I'm sick and tired
of being told that I am!" - Monty Python
Barry Shein
From: ka...@ddsw1.mcs.com (Karl Denninger) [responding to me]
>>You get into a disagreement with mickey_mouse@bell. MM threatens to
>>nail your cat to your door. You don't give it any mind (but you save
>>the msg.) You get home that night and there's your cat nailed to the
>>door. So you call Bell and say "hey, who is this mickey_mouse guy I
>>want to report him/her/it to the police...etc". And they say "damned
>>if we know, he's one of those anonymous users you sued us over not
>>having last year so we changed our policy."
>
>Now wait a second.
>
>TRUE anonymous user IDs are going to be damn difficult if BELL is taking
>money for this service.
That's not true Karl, I assume you have heard of cash? Or cash
equivalents that have no name other than the payee on them?
Trust me on this one.
>PSEUDONYMS, commonly known in the publishing trade as "pen names" are a
>different matter entirely. I have allowed these on my system (MCSNet) at
>times if I feel there is a good reason for it. That "good reason" does not
>include the fact that someone feels like picking electronic fights.
>
>However, I know who those people are. If you show up at my door with a
>court order which demands the release of that information you'll get a
>copy of the subscriber's signup form.
Right, fine, I agree on this point.
>Therefore, there isn't a TRUE anonymous user capability.
Well, no (QNED).
>>>Not for me; my feelings about this are based largely on personal
>>>experience.
>>
>>I was referring to the concept of getting justice from the courts for
>>something like you described.
>
>Which is certainly available if you have a "pen name", OR if you have a real
>name.
Wow, people don't follow the threads: I WAS (ahem, pardon me for
shouting), I was referring to the fact that the civil court system
doesn't work, or put better, it doesn't work in the interests of the
clients. It sure makes lawyers rich tho.
See, it's a big fallacy, oh it happens, but we all postulate this
system of justice where if we're right and they're wrong we sue and we
get our due. Well, sorry, there ain't no Santa Claus, and there ain't
this one either. You're lucky if you walk away with your regular
hourly rates for the time you put in. Hell, you're lucky if you don't
find you OWE after a judgement in your favor.
What usually (or at least too damn often) happens is that *your*
lawyer bilks *you* out of a few thousand to go thru the motions for a
while and then tells you, so sorry, it's not worth pursuing further,
better give it up before you throw more good money after bad.
That's where the gold is (for the attorneys), you can't judge his or
her work really (but a judge can, and that's where s/he's not letting
you get in front of with his/her work, too risky), it's anyone's guess
whether you got good advice for your $5K or whatever, it'll cost you
another $5K to get everything reviewed by another attorney if you
don't like the answer and more to challenge it, and you gotta put the
cash up, and besides if you go to another attorney they'll charge you
$500 to tell you that the other lawyer probably did a responsible job
and *this* isn't worth pursuing (fell for it again, dincha suckah!),
take a deep breath and get on with your life (i.e. you've been
plucked, learn to live with it.)
If they do go to court on contingency then that's because they're
investing *their* money in your case. You can kiss the settlement
goodbye, it's *their* merchandise (oh they'll pay you a few bucks for
your troubles, lessee, we got $50K, hmm, after contingency fees,
expenses, etc, lessee, you got $5K, oh, that's what you put up in the
first place? Well, hey, didn't cost you a thing, and you got that
bastard, that's what was important RIGHT? right.)
[Anyhow, the rest of your note works forward from the assumption that
there cannot be cash-only anonymous accounts.]
Brad Templeton
ie. you the operator don't even know who the posters are, I think you
run a risk of assuming liability for defamation and other materials you
publish from these truly anonymous users.
If you offer pseudonums, and know who the people are in your secret records,
then you might reduce your liability, if you're not ruled to be a publisher.
Publishers in general are co-liable with authors, whether they print the
author's name or not.
I can see the value of truly anonymous services, but I fear the law will
not look kindly on them. I could easily see people viewing a truly
anonymous BBS (of which there are still many today) as nothing but
a facilitator for speech without accountability. As such there is a danger
that courts could rule that all liability falls on the operator of a
truly anonymous system for copyright violation, libel, threats, obscenity
or violation of official secrets laws. This could just about ban such
systems if there were such a ruling.
Which is bad, because the world sometimes needs these channels, though
lord knows that I wouldn't want to read them most of the time.
When you've been in the online world, you know that anonymity and
pseudonyms are great fun in their place, and great facilitators for
certain types of discussion. However you also realize that for
serious discussion, people act more responsibly when their true name
appears on their posts, and the resulting forums are more pleasant.
--
Brad Templeton, ClariNet Communications Corp. -- Sunnyvale, CA 408/296-0366
Mahatma Kane-Jeeves
>Look, if you want to create a new law regarding invitees, fine. But let's
>not pretend there's any history to support this law, okay? You can't have
>it both ways--either you're deriving law from precedent, or you're making
>new law altogether. If you think it would be a good idea for such new law
>to exist, fine, but the doctrine of duties to invitees derives from
>precedents, and the precedents involve physical premises.
Our communication seems to be getting a bit confused. I never said,
nor did I intend to imply, that there is any historical precedent
for applying the doctrine of inviter/invitee in an online context.
In fact, cyberspace being as new as it is, I would be very startled
to find any historical precedents at all! What little guidance we
have in this new context seems to me to be derived from making
analogies with old contexts, and old precedents.
And there is plenty of precedent, in general, for applying old laws
and principles to new contexts and technologies. Freedoms of speech
and press have certainly found broad application beyond the realms
of ink, paper and tongues for which they were designed. Cubby v.
Compuserve was all about finding an appropriate model; strict li-
ability was argued, but Judge Leisure wisely ruled that the princi-
ples governing bookstores were more appropriate. And even the EFF,
if memory serves me, has risen to the defense of freedoms of press,
association and assembly in online contexts.
So it did not seem to me altogether outlandish to speculate on the
application of inviter/invitee in this context as well. If you say
that it is not transferable, I'll take your word for it; you're
certainly better qualified to know than I am.
What you seem to be implying is that any doctrine deriving from
precedent must be applied only within the contexts of the precedents
themselves; and by extension, that only principles deriving from
statute or Constitutional law may be transferred by analogy to a new
context. That being so, we would need new legislation, or a Consti-
tutional amendment, in order to transfer any principles deriving
from precedent into the context of cyberspace. Have I got it right?
Is this what Prof. Tribe's proposed amendment was all about? Wasn't
there some disagreement as to whether this amendment was necessary?
Is there disagreement about the "transferability" of doctrines
deriving from precedent? Am I asking too damn many questions?
>> I am also curious as to why you say the doctrine is
>>limited to "physical hazards"; do you mean it doesn't apply to non-
>>physical injuries suffered on physical premises? How odd.
>
>"Non-physical injuries?" Such as what?
You know, extreme emotional trauma, pain and suffering, that sort of
thing. I can't think of a perfect example, but the electric kool-
aid acid test comes to mind. Or maybe some of the stories we've
heard about commercial airplanes diving or rolling in mid-flight,
leaving no physical injuries but leading to nervous conditions and
persistent psychological disabilities in some of the passengers.
Perhaps very traumatic psychological harassment could lead to an
injury in this category.
>Your hypothetical case was quite specific: A service denies anonymity,
>then "somehow" manages to disclose address data about a user. The user is
>stalked *physically* as the result of this disclosed data.
To be perfectly accurate, I did not say that the system disclosed
the address data. Once you know someone's name, it is often quite
easy to discover their address from public sources of information.
(And once you've obtained that much, with a little creative effort,
there's virtually nothing you can't find out about them.)
But I am certainly willing to concede that my hypothetical case may
not have been perfectly constructed to suit the purposes for which I
intended it. I think subsequent discussion has clarified my intent.
>>Take for example the words of Cliff Figallo in this conference
>>regarding his real-name policies on The WELL. In a message of Thu,
>>17 Dec 1992 20:32:33 GMT, he wrote:
>>
>>> Since the WELL makes it clear that users are responsible for what
>>> they post on the WELL, we thought it important that they be
>>> identifiable.
>>> ... by having a real name associated with every account, there is
>>> less tendency for users to be abusive of other users.
>>
>>If this isn't a euphemistic way of saying that they suppressed
>>unpopular speech by creating a pervasive threat of retaliations
>>among users, I don't know what it is.
>
>Apparently, then, you don't know what is. No one on the WELL worries about
>retaliation. Nonanonymity simply means that if you act nastily or
>foolishly, your nasty or foolish statements will be remembered, and that
>this will tend to cause shame in the present and lack of credibility in
>the future.
>
>Now, Mahatma, perhaps you come from a place where the only thing that
>makes people nice is the threat of physical violence, but the WELL is a
>little bit more civilized than that.
First of all, Mike, I doubt either one of us can say with authority
what everyone on the WELL does or doesn't worry about. If the
WELL's membership is large, I would be willing to bet that there's
somebody on there who worries about it. But of course, those of us
most likely to worry about it are unlikely to become WELL members.
Secondly, the question of whether anyone worries about or not it is
irrelevant to the question of whether they should. When the subject
of the WELL's anonymity policies first came up in this conference,
you kept saying that "nobody on the WELL has complained about it",
as if that were relevant. I couldn't help but think, that's the
same crap I get from every clueless store clerk when I refuse to
give them my social security number: "Gee, none of the other custom-
ers ever complain...". That doesn't make it OK!
Third, the purported "civilized" consequences of non-anonymity as
you describe them above are realized equally well if consistent
pseudonyms are used. So this is NOT a plausible characterization of
the purposes of real-name policies, on the WELL or anywhere else.
It just doesn't wash.
Fourth, I never said that retaliation is necessarily synonymous with
violence. There are many forms of retaliation, and with real name
policies, you open the door to all of them indiscriminately.
Fifth and finally, I come from Earth, where a lot of people are
nice, and a lot of people aren't. Is the WELL open to the public?
Does the WELL do background checks on all its members? Do WELL
users participate in a network with an estimated 10 million users
worldwide? Are you seriously asking me to believe that in all those
millions, there is no one who might be dangerous? Get real.
>>The thought I had in my mind was of a phrase which I believe comes
>>from old English common law: "No wrong without a remedy".
>
>This explains your mistake. The phrase is "No right without a remedy."
>That is, if there's no remedy, then there's no enforceable right.
Wow. I guess I couldn't have been more wrong. I never would have
imagined a principle such as you describe. No rights, nor any
freedom to protect ourselves, except as granted by specific
enumeration in the law? Sounds like a serious bummer.
Despite the humiliation and disappointment, I thank you for setting
me straight on this point.
--- mkj
Mark A Biggar
>Yes (I couldn't resist :). Well, actually I don't know, but isn't
>it true in general that a merchant who sells sexually explicit
>material, or any other prohibited material (such as cigarettes), to
>a minor is liable, even if the minor misrepresents him/herself? I
>remember that back in my youth, I had arguments with a number of
>liquor store owners who thought my ID was false (it wasn't, I just
>looked young, which made me a little testy). They were universally
>convinced that if I was underage, and they sold me liquor, they
>would be in trouble. Based largely on those experiences, I've
>always been under the impression that the burden is on the merchant
>to be certain that a sale is legal, period. I could be wrong
>(liquor store owners are not generally recognized as reliable legal
>authorities), but I might be right.
There is legal precident the other way for missrepresentation of age.
The most notorious case is the Errol Flynn Statuatory Rape Case in which
he got off by proving that the girl (and her companions) lied before
witnesses that she was over age and the court decided that Flynn had no duty
to inquire further. This is where the phrase "In like Flynn" comes from.
--
Mark Biggar
m...@wdl1.wdl.loral.com
Elizabeth Schwartz
True example: a system I was on had a user who sent death threats to a
former professor. The user name turned out to be a fake. There was
some reason to believe that the threats might have been serious
(memory fails; I think it was the degree of detail in the threats.)
Now, aside from the fact that sending death threats is itself a
crime, finding the person would have helped the police resolve the
threat and determine whether the recipient was in real danger.
--
System Administrator Internet: bet...@cs.umb.edu
MACS Dept, UMass/Boston Phone : 617-287-6448
100 Morrissey Blvd Staccato signals
Boston, MA 02125-3393 of constant information....
Elizabeth Schwartz
a few local BBS's that allow anonymous accounts, and a fun time is had
by all. One problem is that the Internet is *one big* net, and those
of us who are on through our jobs are sharing space with those who are
on for education(formal or independant) and those who are on for pure
amusement.
There *are* anonymous areas on the net, and there are anonymous
servers that are publicly accessible and cater to specific needs such
as personal ads. Any message that goes through an anonymous server is
clearly identified, so any user who strikes up a correspondence or
business deal with an anonymous person *knows* that they are dealing
with an alias, and can do so by choice and at their own risk.
I don't really care if a system allows "handles" or not, personally,
and I think a private BBS, however large, can do what they like. For
that matter, I don't see anywhere in the guidelines (correct me if I'm
wrong) that says I can't give an internet account to a user with a
fake name. For my own purposes, and to be responsible to my employers,
*I* want to know who all of my users are. No user is anonymous to me.
As long as we're sharing the wires and the groups with business,
professional and academic organizations, I think the "play" space will
have to be separate from the "work" space. In the PC BBS world, most
systems started out allowing handles, but had to go to real names to
reduce the "noise" level. If the Internet allowed handles, I think we
would see True Chaos (Imminent Death of the Net Averted....)