On Tuesday, September 4, 2001, at 04:33 PM, Declan McCullagh wrote:
At 12:28 PM 9/4/01 -0700, Tim May wrote:
Either one runs seriously afoul of the First Amendment.
Remailers are publishers. Publishers cannot be "licensed," nor can they simply be closed down.
Let me play Devil's Advocate a bit and try to challenge this conventional cypherpunk wisdom.
Unlike remailers, publishers exercise editorial discretion over what they print or distribute or broadcast. They do this by considering the content of the communication and judge, among other things, whether it is timely, newsworthy, informative, accurate, complete, relevant, interesting -- in other words, whether the content will succeed in the marketplace or not.
A remailer does none of those things. Instead of a person judging articles, books, or multimedia clips as worthy of being published, a remailer simply forwards. To that end, it is far more like a mechanical device: a conveyor belt that moves an item from one place to another, perhaps taking off a layer of packaging along the way.
And let me play Devil's Advocate to this DA position: Not to sound overly Choatian, but there is nothing in the First Amendment which says anything about government getting to decide when "enough" editorial processing has occurred so that First Amendment protections kick in. A publisher who published a publication consisting of _all submissions_ would still be protected, even if he exercised _zero_ editorial discretion. In fact, such things exist: they are called "vanity presses." They publish for a fee, no differently than a paid remailer publishes for a fee. Is a vanity press not protected by the First Amendment? There is no requirement in the First that a press prove that it altered or selected some threshold percentage of bits before First Amendment protections exist. In fact, the Bill of Rights is not about rights granted by government at all, it's about limits on what government may do. And, as I will cover below, any kind of "know your customer" rules run into other problems. (By they way, publishers of anonymous letters are not required to "know their customers." Ditto for collectors of anonymous suggestions, radio talk show hosts accepting calls from anonymous dialers, etc. These publishers and radio talk show hosts do _not_ have to "justify" their failure to collect taceability information, nor do they have to meet any threshold test for how much editorial control they exercised. The First simply does not give government the authority to restrict a publisher this way.)
Obviously I'm not trying to argue that Congress *should* enact such a law -- I think they should stay the hell away from this area -- but what if they do? How about if they try, as someone else suggested, to compel ISPs or network providers to be the _de facto_ cops?
I'm not trying to scare off cypherpunk-types from coding or discussing these things. If anything, I'd argue that the next few years are the time to deploy mixes more widely, and weave them into popular products, so restrictions would meet with not just theoretical privacy-themed opposition, but lots of peeved users as well. I'm also not saying, to repeat my last message, that OECD or G8-wide legal restrictions would put remailers out of business, but I suspect such rules would make it much less likely they'd be mainstream.
Something I wrote about a very long time ago, before Cypherpunks even, was the "trick" (Happy Fun Court will not be amused) of using a "religious confessional" as a cover for remailers. Or of using an "anonymous tip line" as a cover. (This was discussed much in the first few years of remailer operation.) If the government demands that remailer shut down, or somehow obtain meatspace identities, confessionals and anonymous pschiatric/sex hotlines will presumably also be shut down. This was the motivation for much of the Kremvax early remailing service, which Julf later took over the code for. Sexual abuse, incest, rape, shame, etc., drove these early systems. It may be time to dust off these services as "covers." Anyone now running a remailer could consider explicity announcing their religious or psychiatric motivations. Melon traffickers --> Soul traffickers. Happy Fun Court will not be amused that such "tricks" are being used to head off an outlawing of anonymity tools. Fuck 'em. --Tim May