From: mkj@world.std.com (Mahatma Kane-Jeeves)
Subject: Re: legal question re anonymity online
Organization: The World Public Access UNIX, Brookline, MA
Date: Sun, 10 Jan 1993 22:08:22 GMT

jsteiner@anwsun.phya.utoledo.edu (jason 'Think!' steiner) writes:

>> My instincts tell me (1) that the exposure of users to unnecessary
>> risks is wrong, and (2) that when such a wrong results in serious
>> harm to someone, there ought to be a legal remedy.
>
>#2 is part of the root of your problem. it's a tendancy to legislate
>away any wrongdoing or inconvenience. and it doesn't work. legislation
>should -not- be treated as a cure-all. it is too easily perverted to

The thought I had in my mind was of a phrase which I believe comes
from old English common law: "No wrong without a remedy".  This is
obviously a mere ideal, which can never be achieved as a practical
goal.  But it reflects the philosophy that one purpose of law is to
remove the need -- and therefore the justification -- for people to
fight amongst themselves in attempts to achieve their own "justice".

You seem to be of the opinion that, at least in certain cases, we
should have the freedom to harm one another without fear of legal
recourse.  I find this a poor ideal.

>as you've found from the level of objections to your original post,
>such is not the case. those who argue for legal protection rarely
>consider that such "protection" could one day be used to harm them in
>the future. the many people on the net who hold unpopular opinions
>-do- consider that a threat & react to suggestions like yours accordingly.

I find it ironic and incomprehensible that you consider my
suggestion (if it can be characterized as such) to be a threat to
those who hold unpopular opinions.  How does that work?  Unless, of
course, the unpopular opinion you happen to hold is that "never give
a sucker an even break" is a legitimate business philosophy!

As a frequent holder of unpopular opinions, I myself find real-name
policies to be the real threat.  In fact, the primary practical
purpose of real-name policies is to suppress unpopular speech,
although sysops usually couch this goal in more palatable terms.

Take for example the words of Cliff Figallo in this conference
regarding his real-name policies on The WELL.  In a message of Thu,
17 Dec 1992 20:32:33 GMT, he wrote:

> Since the WELL makes it clear that users are responsible for what
> they post on the WELL, we thought it important that they be
> identifiable.
> ... by having a real name associated with every account, there is
> less tendency for users to be abusive of other users.

If this isn't a euphemistic way of saying that they suppressed
unpopular speech by creating a pervasive threat of retaliations
among users, I don't know what it is.  (No offense meant, Mr.
Figallo; I'm sure your intentions were benign, but in my opinion,
your policy wasn't.)

>> that is, when dealing with a BBS or any other business, many people
>> would assume the policies of that business must be "safe",
>> otherwise they would not be "allowed" by law.  This assumption may
>> be naive, but it is common, and relevant to informed consent.
>
>that it is common does nothing to make it less false. to paraphrase
>Ben Franklin, "Those who give up liberty for security soon have
>neither". the government should -not- take a parental role in
>prohibiting anything that is not "safe". people who assume that it
>is, or should be, are misinformed. and as we all know, ignorance is
>no excuse.

The one freedom which lawful liberty must NOT protect is the freedom
to harm others unnecessarily.  This includes the "freedom" of the
majority to persecute those of us who hold unpopular opinions.

I agree with you in one thing: I am very much against any "parental"
philosophy of government, such as drug or helmet laws.  I believe we
have the moral right to take whatever risks we choose -- as long as
we make that choice freely and with full understanding.  But it does
not necessarily follow that we have the right to lead others into
danger; nor do I believe that everything which looks like consent is
always sufficient to be consent for purposes of the law.

>the inviter has -no- duty.

This does not correspond to the law as I understand it.

> ... they are offering a service, with certain
>terms, that the user is able to accept or decline as he/she wishes.

As I've already said, I think there's also an issue of *informed*
consent.  Otherwise, why do we see so many warning labels all over
everything?  If the BELL had put a warning message on their login
screen, detailing the worst-case drawbacks of real-name policies,
I'd have less objection.  (I think they'd also have fewer users, and
we'd soon see fewer boards with real-name policies.)

>> If so, many of the pro-tections of law would seem to have no
>> practical applications.  I would expect to see signs at the
>> entrances to all businesses, saying, "Abandon all hope, ye who
>> enter here", and thereby ab-solving the proprietors of all
>
>again, -what- protections of the law?

Since you are the second person to ask this, it is obvious I was not
clear.  I intended to refer to the normal protections provided by
the duties traditionally imposed on an inviter.

                                    ---  mkj