EPMs, private enforcement, copyright, ouch. Was: Re: Regulation of Mixes under Postal Laws?

[Black Unicorn]

----- Original Message -----
From: "Tim May" <tcmay at got.net>
To: <cypherpunks at lne.com>
Sent: Saturday, August 04, 2001 11:06 AM
Subject: Regulation of Mixes under Postal Laws?


> (Title changed to reflect focus.)
>
> At 10:47 AM -0400 8/4/01, Declan McCullagh wrote:
> >On Sat, Aug 04, 2001 at 01:03:59AM -0500, Aimee Farr wrote:

> >>  I agree with you in sentiment, but direct your attention to the CMRA
> >>  (commercial mail drop) requirements for domestic mail agency in the
United
> >>  States in the USPS Domestic Mail Manual. I know you are aware of it.
> >
> >I'm not sure if much can be gained by comparing anonymous remailers
> >to commercial mail drops. USPS is a strange and weird beast, and guards
> >its territory ferociously. Activities that happen in its sphere are
> >logically and legally distinct from those happening online.

Mr. May replies:

> A "remailer" uses the term "mail" in it because "e-mail" is the
> obvious term we have been using for about 20 years now. Obviously
> e-mail can consist of all sorts of messages, including "instant
> messaging," messages picked up at POP sites, and Web-based messaging.
> Their is no bright line between "e-mail" and "chat" and "voice
> communications" and "article posts."
>
> I am unaware of any solid legislation (tested in the courts)
> attempting to regulate e-mail in the same way ordinary USPS and
> international mail is regulated. Certainly there are no postage
> requirements.

The only thing that comes to mind is the post office's "Electronic Postmark"
which, if you affix to an email, puts the same legal effects and protections
(e.g. mail fraud) on tampering and handling that document as first class mail
enjoys.  Admittedly this is a far stretch from the Post Office having any real
regulatory authority over non-EPM'd email, but it's an interesting aside.

> The "anti-spam" rules
> are close to telephone dialing and fax machine rules than they are to
> USPS junk mail rules (such as they are).

Given the weekly state of my mailbox I am very pleased the USPS has nothing to
do with spam control.

> It's not just a matter of "toilet plunger" and "The Court is not
> amused" ("Please don't make Mr. Happy Fun Court angry!") sorts of

"Don't taunt happy-fun-court."  I think you mean.

> (Note that neither Paladin Press nor Loompanics Press were ever shut
> down or enjoined from distributing the assassination manuals they
> used to sell. A civil suit and damages caused the titles to be
> pulled, but not a judge or regulatory body.)

Well, true, but 1. what's the difference if the end effect is the same and 2.
as I think the recent Adobe/E-Book silliness demonstrates- those kinds of
cases are going to see quite a lot of exposure now.  Ashcroft just hired
dozens of new "cyber-prosecutors" and it's apparently going to be the Swan
Song he hitches on to in order to propel his career- I suspect.  (Shades of
Microsoft/Bush mutual-fellatiating aside).

> If "The Progressive" is free from interference in how it chooses to
> publish H-bomb secrets, does even Aimee think a site which collects
> together submissions and publishes them is going to be regulated?

Yet we see sites shut down monthly based on "cease and desist" orders and I
think this is the point.  The line between government enforcement and private
enforcement is increasingly blurred (even gone) in a world where government
has realized it can no longer afford to enforce and prosecute these things.
Today Lawrence Livermore would have just hit the Progressive with a copyright
suit and easily gotten an injunction.  If they had put the H-bomb secrets in
an E-book then they'd arrest key people at the Progressive and they might
still be floating around the federal system wondering what happened.  (I think
it was Mr. May who cited the Xerox example- possibly quoting someone else.
Same thing here).  Anything from putting reporting and recordkeeping
requirements and costs on financial institutions and brokerages (for later
ease of investigation), the CTRs everyone has to fill out now (at their own
expense) to privately originated criminal actions under DMCA, Environmental
Protection Act, Antitrust and etc. etc. makes the distinction between private
and public enforcement increasingly meaningless.  This is concerning.  What
difference does it make if a controversial site is shut down by Mr. London as
a prosecutor or by the Church of Scientology?  Free speech is hindered the
same in either case.

Very worrisome.

This more than any other reason is why I hope that remailer operators will
exercise caution (NOT pre-emptively shut down, as some have alleged I intend
them to do).  I think it's pretty clear that free speech is besieged by forces
under the banner of private property rights, funded by a chest of corporate
gold (Adobe, MPAA, etc.) with entirely different interests- none of which have
much to do with free (or $ free) speech.  Copyright is dangerous today because
it is near its deathbed and yet so many fat profit models depend on it.  Do
you think MPAA or RIAA are spending the kind of cash they are because they
feel safely ensconced?  Do you doubt that for every dollar spent on the
Napster case there aren't 2 or 3 spent in lobbying, both overtly and in
backchannel ways?  (Ashcroft's announcements of late should pretty much remove
any doubt that the Bush administration's ear has been bent by the Adobe's of
the world).

Looking at this trend:

1.  Private enforcement actions with a government, not just a plaintiff,
stick.
2.  Increasing influence of industry groups and corporations in defining the
medium and content of speech.  (Microsoft XP, Adobe, MPAA, MPEG-4, ATA).
3.  Criminal elements to otherwise entirely civil issues.
4.  An increasing political will to enforce these elements by arresting
20somethings and threatening researchers.
5.  "Credentialing" requirements, official or in effect- of which Mr. May has
often mused.

I think it's time to be just as defensive about resisting compelled disclosure
orders (and making such orders obsolete) as it was to use IDEA instead of DES
back in PGP 1.0.

> And no lawyer would argue that Congressional regulation/ownership of
> some aspects of paper mail delivery then grants Congressional control
> of publishing, chat rooms, postings to Usenet and Web forums, and
> machine-to-machine connections.

Unless an EPM is attached.  Perhaps that's the dangerous hook, no?  Granted
there is no EPM _requirement_ today for email, nor can I see how one might
emerge, but several brokerages are in the process of implementing EPMs for
statement, pay stub and trade confirmation delivery as we speak.  AT&T has
started floating trial balloons about sending your statement by paper only if
you pay an extra fee, and doing the rest electronically.  Wouldn't take much
to see EPMs on all your phone bills before long (particularly if the post
office gets clever and tells congress it needs some regulatory correspondence-
say with the SEC as a starting point, to require EPMs in order to stay in
business - or it will have to raise postage instead).  Bingo, EPMs for
everyone!  At least, if I were USPS that's how I would start to try and build
an EPM monopoly.

Interesting times, if nothing else.