From: Theodore Ts'o <tytso@Athena.MIT.EDU>
Date: Wed, 3 Mar 93 13:28:39 PST
To: Eric Hughes <hughes@soda.berkeley.edu>
Subject: Re: You Aren't [I'm Not]
In-Reply-To: <9303031939.AA26579@soda.berkeley.edu>
Message-ID: <9303032127.AA19605@SOS>
MIME-Version: 1.0
Content-Type: text/plain


   Date: Wed, 3 Mar 93 11:39:32 -0800
   From: Eric Hughes <hughes@soda.berkeley.edu>

   >So in this model, how can you provide personal responsibility?  Well, I
   >would argue that the buck should stop at the remailer site.  They are
   >the closest link to the chain of liability, and they have intentionally
   >performed measures which make it impossible find the next link in the
   >chain of liability.  So, let the liability rest with the remailer site!

   I interpret you to mean that it is not personal responsibility for
   speech that you want, but the existence of someone to sue.

Sorry for not being clear; I was merely speculating on how the Real
World might react to the presense of remailers.  I actually think this
might be a reasonable response, and perhaps even a likely one.

Let's cast this into a physical world example.  Suppose someone has
developed a system which will allow someone to broadcast, over a
bullhorn, at 150db, in your neighborhood.  Suppose further that said
system will allow anybody to broadcast over that source, at either free
or at 10 cents a minute, in such a way that it is impossible to track
down the source.  Now suppose that this bullhorn (which is located on
private property) starts spewing announcements and other people
exercising their right of free speach, at all hours of the day and
night.

Now, then, let us explore the this example.  In this example, is it
reasonable to presume that it is each individual houseowner's
responsibility to put up soundproofing, to protect themselves from
unwanted noise?  If so, why?  Why not?  And if the people of the
neighborhood decided to get together and sue someone, who would be the
likeliest target?

Does this example apply to the remailer issue?  Well, their are
certainly examples that go both ways.  For example, if you receive junk
mail, you just throw it out.  On the other hand, if you receive crank
calls, you are entitled to call your phone company, and they will make
an attempt track down the crank caller and turn over his identity to the
police, with the charge of harassment.

   Now, you haven't directly stated that you think that strong anonymity
   shouldn't exist.  If this is what you think, plase say so directly.
   You can then make whatever argument you wish to support this position,
   but I, for one, would like to argue against clearly stated positions.

Whether or not it "shouldn't exist" is somewhat irrelevant, don't you
think?  If people really want to put them up, they're going to exist.

In retrospect, it was a mistake for me to point out that it might be a
bad idea to make that sort of services available, since I doubt any of
the anonymity salwarts have been listening to me anyway.  (It sometimes
certainly as seemed like no one has really be listening to me, as some
of the accusations of my being a censorship lover and being associated
with some evil cabal (tm) seem to attest.)  Some of my less than
thoughtful outbursts were caused by my exasperation at how people were
obviously not listening, and who were responding by name-calling and
arguments that were completely beside the point.  I apologize for those
outbursts.

In any case, I don't believe the benefits of strong anonymity are worth
the negative consequences, and that most of the benfits of strong
anonymity are also provided by weak anonymity.  Hopefully, if strong
anonymity does have the bad effects I fear, there will be ways for our
society to correct for them --- for example, holding the administrators
of the remailers liable for the damage caused by the remailers.  This
may not be the case, given things like international boundaries.  But it
is probably unproductive to argue about whether or not this will or will
not happen.  Time alone will tell.

	   "Speech made anonymously will carry a presumption of falsity
	   in all consideration of tort resulting from said speech."

One can pass legislation proclaiming this to be the case; legislation
has been passed declaring PI to be 3.  The question is whether or not
this is a really a true statement the way the human mind works in
general.  While tort law often seems to bear little or no resemblence to
the outside world, it is supposed to based on the real world.

This is why when someone is suing someone else for Libel, English Common
Law states that you have meet three standards: (a) the statements must be
false, (b) the speaker must have know the statements were false, and
spoke them with malicious intent, and (c) real damages were incurred.
(And that is what the plaintiff is sueing to recover for.)

If what you say is true, that human beings have a presumption against
believing statements made anonymously, then test (c) will fail
automatically; no real damage would have occurred.  In this case, the
legislation is simply not needed.  

On the other hand, if it is true that people will believe statements
made anonymously, and so real damage can be done as a result, then the
person who has been wronged should have every right to obtain
compensation for those damages.  That's what the tort system is all
about.

						- Ted