From: mnemonic@eff.org (Mike Godwin)
Subject: Re: legal question re anonymity online
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Mon, 11 Jan 1993 00:06:10 GMT

In article <C0M7KB.A02@world.std.com> mkj@world.std.com (Mahatma Kane-Jeeves) writes:

>>Online services have never been held to be a "place" for the purpose of
>>transforming customers into business invitees.
>
>Your wording is ambiguous.  Have they ever been clearly held *not* 
>to be such a place?

My wording is hardly ambiguous. But there have never been any cases in
which online services have been held to be a "place" for the purposes of
defining customers as business invitees, and this is probably because no
one has thought it was a legal theory worth pursuing. The law of invitees
is grounded in protecting people from *physical* hazards on *physical*
premises that they might not otherwise know about. In your case, we have
a nonphysical "premise," and a hazard (nonanonymity) that the users know
about. 

>>Because the doctrine of duties to invitees derives from physical hazards
>>on physical premises.
>
>That appears to me to be a mere semantic red-herring, having no 
>foundation in the obvious intent of the doctrine.

I'm afraid you don't know what the intent of the doctrine is, then. What I
stated here about the doctrine of duties to invitees is entirely correct.

>Why would this 
>principle which is sound in a physical location be unsound in a non-
>physical one?

Look, if you want to create a new law regarding invitees, fine. But let's
not pretend there's any history to support this law, okay? You can't have
it both ways--either you're deriving law from precedent, or you're making
new law altogether. If you think it would be a good idea for such new law
to exist, fine, but the doctrine of duties to invitees derives from
precedents, and the precedents involve physical premises.

>  I am also curious as to why you say the doctrine is 
>limited to "physical hazards"; do you mean it doesn't apply to non-
>physical injuries suffered on physical premises?  How odd.

"Non-physical injuries?" Such as what?

>I assume by "no cases" you mean no court cases, and that may be 
>true.  But I myself have observed cases of users being stalked or 
>otherwise annoyed, myself not least among them.

Your hypothetical case was quite specific: A service denies anonymity,
then "somehow" manages to disclose address data about a user. The user is
stalked *physically* as the result of this disclosed data. Which cases 
like this have you observed? If you haven't observed any, and there
haven't been any court cases with this fact pattern, why should the law be
altered to address a problem that has not manifested itself?

>And although case 
>law is certainly important, I don't imagine you meant that it is our 
>only protection, did you?

If you are proposing new law, fine. But your consultation with Black's Law
Dictionary suggests that you were trying to say that *old* law supports
your theory.



--Mike




-- 
Mike Godwin,    |"I'm waiting for the one-man revolution
mnemonic@eff.org| The only one that's coming."
(617) 864-0665  |                           
EFF, Cambridge  |                   --Robert Frost 
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