Melon traffickers --> Soul traffickers

[Eric Murray]

On Wed, Sep 05, 2001 at 05:26:43PM -0400, Declan McCullagh wrote:
> [I'm not saying I believe these arguments, of course.]
> 
> At 05:17 PM 9/4/01 -0700, Tim May wrote:
> >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.
> 
> The flaw in your analogy is that there is human selection involved in even 
> a vanity press. The publisher will weigh, among other factors, whether the 
> work is libelous, whether it contains any trade secrets or other 
> potentially illegal items that could get him in trouble, whether the work 
> is too controversial ("The Misunderstood Hitler") to publish, whether the 
> writer will pay on time, consult with the writer over fonts, cover art, and 
> so on.
> 
> Since a remailer, on the other hand does not exercise any independent 
> editorial judgment about the content of the work, the burden should 
> properly be on you to argue that a law restricting it is unconstitutional.



This was discussed long ago on cypherpunks, in fact the cyphernomicon says:

    8.9.7. Possible legal steps to limit the use of remailers and
            anonymous systems
           - hold the remailer liable for content, i.e., no common
              carrier status
           - insert provisions into the various "anti-hacking" laws to
              criminalize anonymous posts
 
(all of 8.9 is worth re-reading for this discussion).

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 think that being a publisher, while it gives many rights, is not nearly
as good as being a common carrier.  My understanding of "common carrrier"
in this context is that the common carrier is not held responsible
at all for the traffic that it carries.  It  can lose its common
carrier status by editing-- then it's acting like a publisher, and
is responsible for the material that it edits and publishes...

"Prodigy was found liable for defamation as a publisher of a defamatory
statement that had been posted on its bulletin board by an unknown
user. The basis of Prodigy's liability was that it was using software
to monitor and delete "offensive" messages and those in "bad taste." "
(http://www.radiation.com/ideas/liability/)

(follow the links inthat article to find that teh CDA gives some
safe harbor for "provider or user of an interactive computer
service" for editing content to get rid of obscene, etc. material.)


I'm not up on the current state of this.
Is it no longer possible to consider a remailer (or an ISP or
BBS) a common carrier and thus "publisher" is the best to hope for?
Or is it that "publisher", while carrying fewer rights, is much
less likely to be held invalid?



Eric