Melon traffickers --> Soul traffickers

[Declan McCullagh]

[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.

A better analogy: Remailers are like a robotic Mailboxes Etc.-type service 
that opens a FedEx envelope and forwards the extracted contents to you at 
another address via FedEx. The robot arm, like a remailer, does not 
consider the content of the communication and acts like any other machine. 
Since this robot-mailer is by its very nature implicating interstate 
commerce and serves a compelling state interest of the highest order, the 
law is presumptively constitutional.

>(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

But I know of no publisher who would publish a truly anonymous letter. 
Newspapers and magazine request truenames. If given someone's truename, a 
publisher may anonymize the letter, but a subpoena or other legal means 
should be able to extract the information after the fact. Also, publishers 
are legally liable for what they print, so they make content-based 
judgments about its quality -- again, unlike your remailer analogy.

I'm not as familiar with the rules governing radio, but I suspect that 
radio hosts are liable for slander and so on if they keep a 
defamation-spewing guest on the line. Your argument proves too much: Do you 
really want remailers to be treated the same way -- and held liable for 
what people say through them?

>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.

To the contrary, a smart staffer can write legislation that only applies to 
remailers. I'll leave the details to my hypothetical legislative counsel, 
but identity-escrow-for-12-hour restrictions could apply only to "a 
computer hardware and/or software device that receives an electronic mail 
message sent through SMTP or a similar protocol, decodes the contents 
through its private key, and forwards the decoded contents to a recipient." 
Adjust as broadly or narrowly as you like.

-Declan