From: bzs@world.std.com (Barry Shein)
Subject: Re: legal question re anonymity online
Organization: The World
	<C0IBzw.MH8@world.std.com>
Date: Fri, 8 Jan 1993 02:24:52 GMT


From: mkj@world.std.com (Mahatma Kane-Jeeves)
>>>Infuriated and in desperate need of financial help, John sues the
>>>BELL.  My question:  Does he have a case?
>         
>>Absent more fact than this, almost certainly not.
>         
>Thank you for your response to my message.  I find your answers disturbing.  
>Although I don't question your expertise (I'm not qualified to do so), your 
>answers seem to defy common sense.

What common sense is this? The "common sense" that you entered into an
agreement which was not forced on you in any way and clearly spelled
out to the point that you even asked about this particular beforehand
and got a straightforward answer and knowing this you proceeded anyhow
and still believe the other party is to be held responsible?

By this reasoning how big a leap would it be that anyone who suffered
any harm for their actions on such a board should be compensated by
the operators of the board, whether or not they inquired into
anonymity beforehand? C'mon, "oh I knew from a friend they would just
say no so I never asked...please make out the zillion dollar check
to..."

Do you expect the phone company to be liable under similar
circumstances? As I remember they make no guarantees for unlisted
numbers nor accept any liability, they merely offer them as a service
in the most superficial manner and under the stated conditions and
should there be a problem generally limit their responsibility to
giving you a new unlisted number.

>Legal considerations aside for the moment, if I invite people into a situa-
>tion which I know is dangerous, or knowingly impose dangerous policies upon 
>the innocent, it would certainly bother my conscience.  For example, if I 
>keep inviting people to swim at my pool, even though I don't use enough 
>chlorine and some of them get sick from time to time, I would certainly 
>feel like a heel -- especially if I charged admission.  And in general, if 
>anyone suffers unnecessarily as a result of any of my actions, I always 
>feel an ethical responsibility to make some amends.

But that is a negligence you are describing. There was at least some
sort of implied warranty of merchantability, a reasonable assumption
on the part of the purchaser that you operated healthy/safe
facilities. A person generally does not have to ask explicitly whether
or not the food s/he is being served is rotten, or if the pool they
are being sold admittance to has raw sewage pumped into it, it's a
reasonable assumption. The situations aren't analogous.

Anonymity on the BBS you described was not implied, it was in fact
explicitly stated otherwise and you had no doubt about the policy,
enough so that you asked to be excepted!

>This seems to me like such a fundamental moral minimum that I am surprised 
>to hear you say it is not reflected in the law.  Can you elaborate on why?  
>Is this a general principle, or do you feel that BBSs are less liable than 
>other businesses in analogous situations?

It is primarily because the BBS said "your identity will not be
hidden, take it or leave it". As Mike stated, there was no NEGLIGENCE,
and in general this is not a situation where the law would recognize
such conditions being imposed as being unreasonable.

You have to show something resembling negligence. Not offering a
service you wish they did is not in and of itself negligence. It may
stop you from purchasing the service, but so what? You can't really
claim you were forced to purchase the service or that you did not
know.

>Like I said, I'm no lawyer, but I happen to have a reasonably recent copy 
>of Black's Law Dictionary, so I decided to take a look at entries relating 
>to the term "negligence".  According to Black's, "Doctrine of negligence 
>rests on duty of every person to exercise due care in his conduct toward 
>others from which injury may result".  This appears to me to bode ill for 
>those who impose real-name policies.  But elsewhere in Black's, I found 
>that the standard by which legal negligence is judged is "Failure to exer-
>cise that degree of care ... which a man of ordinary prudence in the same 
>situation and with equal experience would not have omitted."  Would I be on 
>the right track, therefore, in speculating that the reason why you feel 
>real-name policies cannot constitute negligence is simply that such poli-
>cies are so widespread as to define "ordinary prudence"?

Exactly. Disclosure of the terms and conditions is also a problem with
your argument, this is clearly a case where the customer fully
understood the terms and conditions and was able to judge whether or
not he or she was willing to pursue the service under those
conditions. One may not be able to foresee all circumstances, but what
you have laid out is not sufficient to be interpreted as negligence.

To draw an analogy, it's as if you went into a car dealership, asked
for a car which could not drive over 40MPH. They said no, they had no
such car.

So you asked if they could modify a car such that it would not go over
40MPH. They said no, they would not do that.

So you bought one of their cars anyhow (perhaps after the observation
that no one was willing to sell you the under 40MPH car), you drove it
over 40MPH, got into some sort of accident, and now feel they are
liable *merely* because they refused your request.

Now, no one would argue that driving over 40MPH is without any danger,
nor did the person who sold you the car make such a claim.

But it's quite another thing to think that because you asked that your
car be modified not to do that, were refused, but proceeded to
purchase the car anyhow, that someone else is liable. My, what an easy
trap that was!

If that were the case we could all dream up crazy things to demand of
products and services (could you please sell me a knife sharp enough
to cut roast beef but incapable of cutting my finger? No? Ok, then I
shall buy the knife but if I should cut my finger it will be your
fault, etc) and then try to claim later that the purveyor was somehow
negligent in meeting our expectations.

See, that's the balance in any negligence claim: Expectations versus
claims. Claims must be reasonably disclosed beforehand, (your)
expectations do not take precedence over (their) claims unless there
is some good reason to believe something odd is going on (e.g. it was
impossible for you to reasonably understand their claims.)

Obviously this is all much more complicated than this, by shuffling
various notions of what a person might reasonably understand or to
what extent they were free to not purchase a service one can no doubt
derive situations that devoid of their value weightings may appear
analogous to the one you describe, but I think under the circumstances
you describe the situation has no merit.

-- 
        -Barry Shein

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