Re: Remailer Musings

17 Dec 2003

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Jamie Lawrence writes:
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From: juola@bruno.cs.colorado.edu
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On the other hand, part of the rules of being a common carrier are that
one is *required* to cooperate with appropriate authorities to prevent
this sort of abuse and to catch said abusers if/when it happens.  I
suspect that Mr. Templeton's lawyer could make a case that by setting
up a remailer where one cannot "trace calls," one is violating the
requirements of being a common carrier, and thus is responsible for
content.
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I wonder how this would jive with the factoid someone on this list (don't
have the original handy) found a while back about the court ruling in favor
of the right to operate under an alias in (constitutionally?) protected, at
least in terms of publishing, etc.? I remember the case happening in L.A.,
I think. Anyway, what are the odds a case could be made that my 'anonymous
identity' "fooperson" is a legal pseudonym? Stretching it some, but a
possibility, and one case where similarities with publishing can work in
favor of privacy.
This sounds like the quote/cite I posted recently. (Talley v. Calif., 362 US
60, 64-65). The LA City Attorney suggested that the ordinance (which 
prohibited distribution of handbills without a "true name and address")
was intended to prevent fraud, false advertising, and libel - but
the ordinance was not drafted to mention those evils, and there was no
legislative history presented to support that reading. The majority opinion
and Harlan's concurrence explicitly declined to rule on the constitutionality
of a more narrowly drawn ordinance which would have addressed those 
concerns while protecting publishers/distributors from fear of reprisal
against unpopular opinion.

In any event, the opinion is 34 years old, and I don't know shit about the
First amendment. I passed that on to the list not as a statement about what
the law is today, but as something to keep in mind next time Detweiler
or one of his cohorts mentions that "only criminals think anonymity is good."

On the other hand, I'm curious about Brad Templeton's little excursion
into the [limits of] liability for electronic publishers. I wonder if he'd
consider himself liable if he unwittingly published copyrighted material
without permission. 

Does anyone have a cite to support the notion that common carriers are
obligated to assist in the identification of users of their services? 
I received annoying phone calls for a period of time, and the local phone
company (US West) said they'd only get involved once I had an "incident 
number" (or some such) from the police department, and that information
gathered would only be released to the police. I suppose if I actually
filed a civil suit against the harassing party (even as a John Doe?) I
could then use the discovery process to compel them to release their
relevant records - but that's not really the scenario that Brad and
'kitten' seem to imagine.

Also, seems like Mike Godwin mentioned last time we talked about the
common carrier stuff that one doesn't just become a common carrier by
virtue of wanting to be one, or even by acting like one - I think some
sort of legislative/administrative action was necessary ..? It's been
tossed around on the net that 'UUNET is a common carrier' - a semi-recent
post from Tamara Bowman, UUNET staff member, said that UUNET has
"enhanced service provider" status, which is not the same thing.

greg＠ideath.goldenbear.com

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