On Tue, 21 May 1996, Ben Holiday wrote:
On Tue, 21 May 1996, Daniel R. Oelke wrote:
The second is to simply include the consent-code along with the encrypted peice of mail and a legal notice stating that decryption of the mail constitutes your consent to receive the mail, as well as your agreement to hold the remailer-operator harmless
By reduction - you could just do a rot13 on the message and append the "legal notice". If all the information for decoding a message is present in that message, is a different encoding mechanism really any different from straight ASCII text? (i.e. Netscape 9.13 might have auto decoding built it....) Then, the user doesn't do anything "extra" - does this invalidate the notice?
Donno. IANAL. :)
A person has notice of a fact if he knows the fact, has reason to know it, should know it, or has been given notification of it. Restatement, Second, Agency section 9. The important issue here is what constitutes constructive or implied notice (the second example above). Constructive notice exists where a party could have discovered a fact by proper diligence and where the situation casts a duty on him to inquire into the matter. A person who has _actual_ notice of circumstances which would set of the "alarm bells" of a prudent person has constructive notice of the issue itself where a notice clause was available and easily referenced. See F.P. Baugh, Inc. v. Little Lake Lumber Co., 297 F.2d 692, 696. Also comes the question what notice is adequate? Notice reasonably calculated, in all circumstances, to apprise all interested parties of actionm and opportunity to present their objections, says U.S. v San Juan Lumber Co., 313 F.Supp. 703, 709. I'm not going to discuss what constitutes a legal agreement here for the purposes of waiving rights to hold the remailer operater harmless. These are traditionally unnegotiated agreements that courts are not likely to want to enforce. (Back of a ski lift ticket, notice that the garage is not responsible for theft). If a court feels that the remailer operator is being negligent or some such, a notice like you are talking about is not likely to be very effective. I find that making the user decrypt the message as acceptance of the mail is clever, but what exactly does it accomplish? The user can still have his copyrights violated in the text, what does it matter that he did or did not accept the mailing?
This would accomplish two things: We could source block an address without knowing the source; and if push came to shove an address could be backtracked to its original source, provided a complaint was made in time, and that the Bad Guy sent another mail from the same address. I think that legally there would be a good argument that the remailer ops had made a reasonable attempt and holding lawbreakers accountable, while still preserving the anonymity of non-abusers
Let's call this the "hash policy." I'd be interested to see what the ration of volume between mailers with a hash policy and mailers without a hash policy would be. Simply the perception that records are being kept could have a chilling effect. The user is in no position to verify how secure those records are, or that they are indeed hashed at all. While the same is true with regards to logging at all (hash or no) I think the feeling that the existance of records somehow makes it more likely the the remailer operator will (with resistance) cooperate with the authorities is amplified. Either you do or do not believe that a remailer operator is keeping full and unhashed records. If you KNOW that records are being kept, well, to the user, what's the difference between this and the mailer logging all traffic fully and putting the information in a "Secure" directory? How precisely does hashing protect the user?
Just a thought..
Ben.
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