From: "Perry E. Metzger" <pmetzger@lehman.com>
Date: Sun, 3 Oct 93 10:24:32 PDT
To: cypherpunks@toad.com
Subject: Re: PGP in Fidonet
In-Reply-To: <199310030409.AA15860@xtropia>
Message-ID: <9310031721.AA26808@snark.lehman.com>
MIME-Version: 1.0
Content-Type: text/plain



anonymous@extropia.wimsey.com says:
>  * Reply to msg originally in CYPHERPUNKS
> 
>  > You haven't been listening at all to Mr. Godwin, have you?
> 
> Frankly, no.

The rest of your posting is therefore 100% irrelevant.

> Let me make sure I understand your
> point; are you saying that:
> 
> 1]  On a privately-owned computer...
> 2]  Operating a noncommercial BBS without monetary compensation...
> 3]  On which a repeating log-on notice informs users that all messages
>     are subject to sysop viewing...
> 4]  Sysop/sole owner viewing of non-public (as opposed to "private")
>     messages during system maintenance or monitoring for unlawful
>     activity...
> 5]  Is prosecutable under ECPA?

Gee, you are starting to catch on, aren't you? 

>  > 2) The BBS operators are NOT liable UNLESS they censor the mail. If
>  > they censor the mail, they are liable for anything they fail to
>  > censor. If they do not censor, they are common carriers, and have
>  > no liability.
> 
> It is my understanding that noncommercial FIDOnet participants are not
> in fact common carriers

Lets say that you operate a magazine, and decide what can and can't be
placed in it. You are then liable for the contents.

Lets say that instead you operate a courier service, and censor
nothing. You are then not responsible for what your clients.

Forget the common carrier question. If you actively decide what can
and cannot go through, then any time you fail to stop something you
are liable. If, on the other hand, you exercise no control, you have
no legal liability.

> In any case, I am informed hobby sysops have been arrested and their
> systems seized for allegedly illegal traffic on their systems 

Mike Godwin, council to the EFF, has never heard of such a case. If
you believe one has occured, why don't you tell us precisely where and
when it occured?

Perry