From: "Perry E. Metzger" <pmetzger@lehman.com>
Date: Sat, 2 Oct 93 13:14:24 PDT
To: cypherpunks@toad.com
Subject: Re: PGP in FIDO
In-Reply-To: <199310021906.AA13098@xtropia>
Message-ID: <9310022011.AA19354@snark.lehman.com>
MIME-Version: 1.0
Content-Type: text/plain



anonymous@extropia.wimsey.com says:
> Anyway, the ECPA is basically irrelevant in the BBS world, as 1] almost
> every BBS states at log-on that there is no such thing as truly
> "private" e-mail on the system as the sysop can, will and does see
> messages in all areas, and 2] he is personally _liable_ for any illegal
> activity on his BBS, so he can reasonably be expected to keep an eye on
> e-mail for anything that will put his ass in a sling.

You haven't been listening at all to Mr. Godwin, have you?

1) The ECPA *DOES* apply to the BBSes whether they want it to or not.
   All the hoping in the world doesn't make a statute go away. Merely
   declaring that the ECPA doesn't apply to you doesn't work -- try
   declaring the tax laws don't apply to you some time and see if that
   works.
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.

In other words, jackasses pretending they understand the law have both
broken the law and made themselves more, not less, liable for anthing
left on their machines.

> There has been a very heated war in FIDOland over PGP and other
> encryption.  Considering the risk that sysops take on by permitting
> secure (?) communication on their BBSs,

They take NO risk. They are common carriers if they stop censoring
their mail. People don't seem to understand that the law on this is
very clear.

By the idiotic logic the FIDO operators are using, the phone company
could be siezed if two people have a conversation about a crime over
the phone. The notion is, of course, absurd, and so is the stupid
half-assed amateur lawyering the people who wrote the FIDO policies
used.

> Personally, _I_ would never stick my neck out like that, though I
> convinced many FIDOnet BBSs to do so for my own political and purely
> selfish reasons.

Actually, as I've just noted, you have not protected yourself. You
have opened yourself up for massive legal liability where you had none
before.

The depths of human folly never cease to amaze me. This case is as if
a group of bankers, deciding that they were scared that they might be
held liable if one of their clients were a drug dealer (which they
aren't) decides to embezzle all the client accounts instead to "keep
themselves safe".

Perry