From: bzs@world.std.com (Barry Shein)
Subject: Re: legal question re anonymity online
Organization: The World
	<BETSYS.93Jan8125312@ra.cs.umb.edu> <C0KIMB.HIv@world.std.com>
Date: Sat, 9 Jan 1993 04:40:39 GMT


From: someone@some.where (Name Witheld By Request)
>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.  Apparently I am 
>nearly alone in these feelings.  I must say I'm surprised.

Re-work your instincts on a much more serious culprit: Automobiles. Or
crossing a busy intersection. Or a zillion other things.

Merely not providing anonymous accounts is not "exposure of users to
unnecessary risks". It is just "the deal" they are offering, and you
are free to choose it or not.

And what about the potential harm to other users *from* an anonymous
user? Is that not a quandary? Does that not, by a similar stretch of
the imagination, seem to hold the BBS somehow liable to the harmed
party?

Besides, the whole thing is more hypothetical than you might imagine.

Most such liability cases are of little value except for the lawyers
involved. It's one of those great american myths.

[begin tangent]

People may claim they sued someone and got $10K or $50K or whatever
but if you investigate further what they really mean you will find in
many many cases (particularly marginal ones, blatant ones are usually
a different story, but only really blatant ones), is that their
attorney took on the case, cajoled the other party somehow into
believing it would be cheaper to settle, and then managed to write up
a bill that about covered the settlement (oh, you think contingency
fees are all they can charge? No no no my friend, that is the minimum
they are guaranteed to charge!) But that's a lousy story to tell your
bar buddies, isn't it?!

Anyhow, that's off on a tangent, but justice has very little or
nothing to do with our current "justice" system, unfortunately. It's
been taken over by slimy operators with law degrees, and in fact much
of what I describe is considered absolutely good practice within the
law profession (i.e. if they take it on contingency, they take all the
financial risk, so why *shouldn't* they get virtually all of the
proceeds? You're just merchandise, the sooner people realize this the
sooner this dangerous myth will be squelched.)

For an interesting book on the subject try: "The Litigation
Explosion", Walter Olsen, Dutton, NY, 1991. You don't have to take my
word for it, you can find a dozen other reputable and recent books
which generally come to the same conclusion: The public is being duped
by the legal profession, and no one is doing anything about it
(they're all afraid they'll be sued, and besides, who ya gonna call? A
lawyer??? The rats guard the cheese.)

Anyhow, I realize it's fun to argue about some hypothetical legal
system that we all exist, like imagining what heaven must be like or
similar.

[end tangent]

>Also, Barry Shein brought up 
>the issue of reasonable expectations.  I think most people assume 
>a certain pervasive umbrella of legal protection; 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.

They are safe, and just as importantly they are reasonably disclosed.

Merely allowing your identity to be known is not generally considered
negligence unless some agreement has been made to not make your id
known.

There is nothing novel about BBS's in this regard. I can probably go
to your town hall or motor vehicle bureau or the IRS or a credit
agency (if I am a merchant, not a terribly exclusive club) and find
out a lot about you. If I do something untoward with that information
*I* am responsible, not the institution that provided that information
(in general, and so long as that harm did not arise out of incorrect
or malicious information which is generally the claim against credit
bureaus, not merely giving it out, your complaint is that the
information was correct!)

If you sign up for any number of services or publications I can buy
yours and everyone else's name and address for a fee (unless there is
some specific agreement not to sell it) in the form of mailing lists.
Again, I would be responsible for abusing that information, not the
people who sold it to me.

Etc etc. Universities are often sieves in this regard, Boston
University is notorious for selling their student's info to direct
mail houses (and they're a private institution, so if there's any
dispute about govt vs private this ain't one of them.)

You go to church on Sunday, I walk up to your pastor as you walk out
the door and say: Reverend, who is that fellow that just walked by? I
know I knew him in college, but can't for the life of me remember his
name! The rt rev obliges, I look you up, go to your house later and
kill you. Do you think the reverend is culpable? What about your boss
if you are in a position dealing with the public (what was the name of
that guy who was at the counter earlier, big fellow, blue hair, blonde
eyes?)

etc etc etc.

It's just not enough to pin culpability.

You can't just stretch the meaning of safety and responsibility to
such extremes. At least the courts do not seem to agree with your
characterizations.

>Second point: Can it really be that easy for each of us to waive
>our normal protections under the law?

What "normal" protections are these? I have never heard of any such
"normal" protections. Are you sure you're not hiding behind a
legalese-ish phrase here that actually has no meaning?

>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 liability.  Common sense -- er, 
>excuse me, I mean my instincts tell me that our duties to one 
>another under the law cannot be so easily put aside.

No, this is called nihilism. Some things are ok, some aren't. It's a
matter of value weighting, the sense of the society, common standards,
etc.

You can't just equate everything with everything because you can
define a group general enough to include both items, just toss it all
under the rubric "safety" and be done with it. That isn't at all
enough to make an argument out of.

>Finally, to muddy the waters just a bit further, let me raise a 
>new issue: What would the reaction have been if my hypothetical 
>case had featured a user below the age of consent?  It seems to 
>me the doctrine of "attractive nuisance" has been invoked before 
>in prosecuting BBSs in connection with obscenity or pornography 
>charges.  Would it have any application in a case like this?

Possibly, but only if one can prove that it was reasonable to expect
that this due care could be exercised. The anonymity of a BBS tends to
some extent (tho not entirely) to put them in a bit safer position
than say a storekeeper who can plainly see who s/he is dealing with.

For example, if a child gets a hold of a subscription card for a
sexually explicit magazine, fills it out (we don't have to assume a
small child, a 12 year old is sufficient) and even signs that s/he is
over 18 yrs of age and encloses the money properly would you expect
the magazine to be held liable?

It's really quite similar in many ways (now watch, the answer will be
"yes"...)




-- 
        -Barry Shein

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