From: mkj@world.std.com (Mahatma Kane-Jeeves)
Subject: Re: legal question re anonymity online
Organization: The World Public Access UNIX, Brookline, MA
Date: Sat, 9 Jan 1993 03:49:23 GMT

With regard to the hypothetical case I posted yesterday, a consensus 
seems to be emerging that the BELL would have, and should have, no 
liability.  I said before that such a lack of liability appears to 
me to defy "common sense"; obviously a poor choice of words!  Let me 
rephrase and say instead that it defies my instincts in the matter.

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.

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.

I will take issue with both of these arguments, first one first.  In 
browsing through my copy of Black's Law Dictionary, I found a legal 
concept which appears to correspond to my instincts in this matter.  
It is an old concept in English law called "Invitation", concerning 
the responsibilities of shopkeepers toward their customers, fair 
organizers toward the fair's patrons, and so forth:

     "... as to those who enter premises upon business which 
     concerns the occupier, and upon his invitation express 
     or implied, the latter is under an affirmative duty to 
     protect them, not only against dangers of which he 
     knows, but also against those which with reasonable 
     care he might discover."

Does this doctrine still have application today?  If so, why 
should it not be applicable to "premises" located in cyberspace?

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; 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.

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.

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.

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?  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.

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?

                                   ---  mkj


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