Newsgroups: comp.org.eff.talk
Subject: Re: legal question re anonymity online
From: jsteiner@anwsun.phya.utoledo.edu (jason 'Think!' steiner)
Date: 10 Jan 93 00:32:00 EST
X-Newsreader: Tin 1.1 PL4

mkj@world.std.com (Mahatma Kane-Jeeves) 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
hurt the innocent & too costly to enforce. such a solution also
removes responsibility (and therefore privilege) from the individual.

> The arguments offered thus far fall into two main categories:
> 
>      (1)  The BELL's actions cannot be characterized as negligent, 
> and
>      (2)  Hypothetical user John Q. Publius, by consenting to the 
> real-name policy of the BELL, consented also to any risks thereof.
> 
> 
> Now on to the issue of consent, about which I would like to raise 
> a couple of related points.  
> 
> First, referring to my hypothetical case, it does not seem obvi-
> ous to me that in consenting to a real-name policy, John Q. 
> Publius clearly intended to consent to the level of risk he 
> ultimately found in that policy.  Also, Barry Shein brought up 
> the issue of reasonable expectations.  I think most people assume 
> a certain pervasive umbrella of legal protection; 

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.

> 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.

> It seems to me that conference system applicants cannot always be 
> presumed to fully understand what they are getting themselves 
> into.  For example, someone commenting on this issue expressed 
> doubt as to whether John Q. Publius's phone number and address 
> could actually be found, given only his name to go on.  And I 
> think that many people who would balk at delivering a speech 
> before an audience of tens of thousands, or who would die of 
> fright appearing on a global television broadcast, will nonethe-
> less blithely submit comments to network conferences, probably 
> without fully understanding the implications of that decision.

again, ignorance is no excuse.

> An experienced sysop will almost certainly have a significant 
> advantage over most users in evaluating the risks of this medium.  
> From this advantage I would expect certain responsibilities to 
> derive.

the risks are still taken by the users, not the sysop. as a result,
any results are the -user's- responsibility. if i gamble and lose
it is -my- responsibility, not the responsibility of the owners
of the gambling establishment, unless they mislead me in some way.
unless BELL has mislead John Q. Luser they are -not- liable.

> Second point: Can it really be that easy for each of us to waive
> our normal protections under the law?  Does a user's consent to 
> use a real name online actually end the inviter's duty to care 
> for that user's safety in this regard?  

the inviter has -no- duty. they are offering a service, with certain
terms, that the user is able to accept or decline as he/she wishes.

> 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.  

again, -what- protections of the law?

> 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.

apparently, common sense isn't so common. why do your instincts tell
you that individuals who provide tools be held responsible for the
uses to which their customers put them? the -customer- did the 
firebombing, not BELL. where is the real offender in the midst of all
this? why are we even considering BELL's liability when the -real-
wrongdoer is at large? because BELL is supposedly a "big bad corporation
with lots of money" just ripe for a lawsuit?

jason

--
`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`
`,`         "Read my lips: Utopia!" - Bill Clinton paraphrased          `,`
`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,`,` jsteiner@anwsun.phya.utoledo.edu ,`,`,`
Newsgroups: comp.org.eff.talk