On Wed, 5 Sep 2001 17:38:16 Tim May wrote:

On Wednesday, September 5, 2001, at 05:08 PM, Eric Murray wrote:

...

Tim, do you really mean to say that you now think that a remailer is a publisher, not a common carrier? Maybe I lost track in all the devil's advocate indirection...

I take no position one way or another. But "common carrier" status is not something that is automatically achieved. The telephone companies got it, to prevent phone companies from being shut down or from listening in on conversations. I'm not an expert in the history of "common carrier" legislation. (It may be described in Ithiel de sola Pool's seminal history of the telephone and liberty, though.)

I think "common carrier" status was orignally conceived to allow access by all to an asset which is a "natural monopoly". Thus the owner of the monopoly, in return for having it sanctioned by the government,is required to do business with all. He is not held liable for certain results because he is required to forego normal business judgement about with whom to do business. As remailers are not in any sense a "natural mononoply" the common carrier rational for not holding the remailer liable for the results of doing business with particular parties would not apply. Nor for that matter would the monopoly grounds for the government regulation of remailers exist. Though I supppose the government has expanded the concept of common carrier to expand its regulatory grasp I don't think it could be expanded so far as to include remailers, but I don't know current case law on this question.

My point was the claim some are making that government may "license all remailers" seems unlikely.

Agreed, its hard to imagine a grounds for government regulation here that doesn't infringe on the first amendment. Of course when it comes to defining concepts from economics and law I defer to Faustine and Aimee. Unfortunately they seem, like cops, to never be around when you need them. Jim Join 18 million Eudora users by signing up for a free Eudora Web-Mail account at http://www.eudoramail.com