From: Black Unicorn <unicorn@access.digex.net>
Date: Thu, 26 May 94 15:43:17 PDT
To: cypherpunks@toad.com (Cypherpunks List)
Subject: Liability and Anonymous Systems
Message-ID: <199405262242.AA14725@access3.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


Sorry about the blank post before this one....


Mike Duvos scripsit


> 
> 
> As I understand it, Mr. Unicorn and Mr. Tmp, their true identities safely
> concealed behind their respective handles, engaged in a minor flame war
> and major ass-kicking contest related to the topics of crypto, privacy,
> and nasty authoritarian governments.  Mr. Tmp, following his usual modus 
> operandi, engaged in some reasonably clever hand-waving, out-of-context 
> quoting, misdirection, and misrepresentation at the expense of a number 
> of people, including Mr. Unicorn.

Basically correct.

> All this would have been water under the bridge were it not for the fact 
> that Mr. Unicorn, who is wont to travel in circles considerably more 
> conservative than most of his political writings, inadvertantly disclosed 
> his identity in the thread while showing a friend how to use Usenet.  
> Certainly this blunder was no fault of Mr. Tmp.

Basically correct.
Inadvertent disclosure is perhaps inaccurate. 
Said friend was privy to my identity by choice.  You seem to want to dismiss 
tmp's liability because he assumed that my identity was secure.

> Ultimately, as a consequence of this leak, certain business associates of
> Mr. Unicorn, with no knowlege of Usenet or the context of the discussion,
> were exposed to portions of it and the identity of Mr. Unicorn was
> disclosed.  Again no fault of Mr. Tmp.

Not sure I quite agree with your assessment here.

It was indeed tmp's fault that my business associates were exposed to 
tmp's statements.  He released them to the world at large.  The net is 
not the end of the story.  It interacts with the outside world actively.  
To assert that tmp could not have known that associates of mine might have 
gotten a hold of his statements is just to ignore the facts.

He is directly at fault for anything he releases to the general public.  
Just because someone else did some forwarding of what appeared to be a 
published characterization does not lift liability from the origin of the 
statements.  To hold otherwise would eliminate accountability of the 
press because the newspaper stand was the last distributor.

> Said business associates, being relatively anal upper-class European 
> types with a great respect for authority, were singularly unamused by
> Mr. Unicorn's political views and the even worse things falsely 
> attributed to him by Mr. Tmp in the heat of discussion.

Basically correct.  Your emotional appeal to "the heat of discussion" 
really does not do much to reduce liability.

> Mr. Unicorn 
> became worried that his business might suffer as a consequence.  Since I 
> personally believe that one should not discriminate in doing business 
> based on someones political beliefs, I would certainly characterize this 
> as a moral failure on the part of Mr. Unicorn's business associates, and 
> not the fault of Mr. Tmp.

True.  Why the basic narrowness of the rest of the world should stand for 
some bar to my suit is somehow beyond me however. 

It is precisely because people are prone to be swayed by rumor and hearsay
that protection against defamation is required.  Had tmp no reason to believe 
that anyone would attribute a negative meaning to his characterizations, I
might agree with you.  Are you going to assert that he thought he was
complimenting me?

How I wish the rumor that a dentist had AIDS would never affect said 
practitioners business.  How realistic is this in practice however?

Do you really assert that it is the stupidity of the public that limits the 
liability of the individual wrongly spreading the rumor?

I should be able to do business unimpaired with whoever I like, whenever 
I like, and with whatever reputation I have earned.  This includes stuffy, 
uptight, anal Europeans, who happen to have the money right now I might add.

> Finally, Mr. Unicorn, mustering all the legal and financial resources at
> his disposal, threatens to skewer Mr. Tmp for alleged libel, and Mr. Tmp,
> lacking similar resources and unable to risk a courtroom defeat, is forced
> to go on Usenet and publicly eat you-know-what with a large wooden spoon. 

Basically correct, with the departure that he was free to seek pro-bono 
representation or perhaps assistance from the ACLU or EFF.  Those without 
the ability to defend themselves with a money-is-no-object approach probably 
should not be so quick to defame either.

> Since Mr. Tmp is not well-liked in the Cypherpunk community, response to 
> this sorted tale consists mostly of praise for Mr. Unicorn, and silence 
> by those who might have been critical, but who don't want Mr. Unicorn to 
> treat them the same way.

tmp is disliked in the Cypherpunk community because of his often 
slanderous conduct.  This is hardly my fault or anyone else's.  
I don't think you can attribute the response to my news simply to this in any
event.  Are you asserting that because I sued someone, others are too stunned
into silence to be critical of my suit?  I think this is silly.  If it deters
anyone from defaming, it was a positive thing.  How it would curb reasoned
debate (like your post for example) is beyond me.

Part of the purpose of a legal system in any form is predictability.  If 
you hurt Alice so, you will be punished so.  If you resort to defamation, 
you should expect to be held accountable at one point or another.  This 
is the incentive to instead conduct reasoned debate.

> I don't think there are any heros in this story.  I think it is a dark 
> day for freedom of expression in general and Usenet in particular.  

So your position will be that the laws of defamation and libel are an 
infringement on the first amendement?  I'm not interested in anyone 
calling anyone else a hero.  There are two sides to every dispute, the 
winner is merely a reflection on the moral makeup of the day.

> In the past, I have engaged in lots of heated discussions on many 
> hot-button topics, on Usenet and in many other forums, sometimes under my 
> own name, and occasionally under a pseudonym.  I have been called many 
> vile things along the way, and have had my views on occasion 
> misrepresented far more cleverly than Mr. Tmp could imagine or articulate.
> 
> Nonetheless, if I found myself losing work because an unpopular view of
> mine came to light, filing a lawsuit against another Usenet poster would
> be just about the last thing I would think of doing.  Particularly if the
> discussion took place under a pseudonym and I was the person who had 
> broken my own anonymity.


I think you confuse the issue here.  It was not my unpopular view that 
caused the damage, but an incorrect characterization of my view.  Truth is 
an absolute defense to libel.  Had tmp been correct in characterizing my 
political views, he would have been vindicated.  Instead he leveled 
baseless accusations which also happened to be false. 
Such being the case, your statement to the effect that I was merely "losing
work because of an unpopular view of mine" is poorly worded, and 
misleading.

You seem to allege here that it is my responsibility to post anonymously 
to the internet to guard against defamation and false accusation?  Is it 
strict liability here?  If you post, you are engaging in a hazardous 
activity and thus you bear the risk that someone might defame you?
Is it the poster's responsibility to assure anonymous postings?

Such would be a very curious legal standard.

Should I have wanted to insure myself flawlessly, I should have posted
entirely through an anonymous remailer.  The reverse is not necessarily true,
that unless I post anonymously I deserve what I get.

Utility of anonymous posting v. Requirement of anonymous posting seems to 
be the distinction you are blurring.

> Antics like this threaten the entire concept of Usenet as a 
> reputation-based cooperative anarchy.  The solution to Mr. Tmp is to put 
> him in your killfile, not sue him into submission.  

A kill file would be most effective if it stopped the spread of damaging 
rumor or somehow proved it false.  It does not do so.

> -- 
>      Mike Duvos         $    PGP 2.6 Public Key available     $
>      mpd@netcom.com     $    via Finger.                      $
> 
> 



Some Reflections on Anonymous Posting and Legal Systems:

How does one construct protections to the individual who conducts 
business in an environment of absolute anonymous potential?

If I am to be able to do business with who I like, be they upper-crusted 
Europeans with anal political bents or what, there must be some 
protections.  I have worked hard to cultivate a reputation of what passes 
for "respectability" in my business circles.  The potential to post with 
total and untraceable anonymous attributation is a dangerous one in this 
context.  It would be nice if completely reputation barren anonymous 
posters were given no sway in the scheme of things, other than what could 
be verified from their posts.  This is unfortunately not the case.

It would also be nice if one could conduct business with zero knowledge 
reputations and zero transaction costs.  This is also, unfortunately, not 
the case.  (I'm hoping however).  It seem to me that this technological 
advance accomplishes what decades of civil rights legislation could 
not.  A truly color blind world.

This is why I will assert that total anonyminity, when costless, or 
nearly so, is a GOOD THING.

Currently there are no provisions for this sort of transaction.  My 
postings, were they made through difficult to operate and not highly 
reliable encrypted remailers, would probably not be able to gain the 
reputation that this account has.

So what of libel in a true anonymous world?  How can it exist?  tmp may 
make accusations as he likes against a reputed anonymous poster known 
only as "Reputation rating: 65."  I suffer no harm, he incurs no 
liability, and each is welcome to judge who's points are more reliable 
based merely on message content, and some idea of each posters 
reliability and history. 

I may conduct business with stuffy Europeans as I like, and not even have 
to worry about, or know, what their political hang ups are, or what tmp 
might say about me publically.


The danger lies instead, not in a totally anonymous world, but in a 
partially anonymous one.  It is in this hybrid world that I cannot 
rationalize putting the burden of anonymous assurance on the poster, as 
Mr. Duvos would have.

Where some users are more anonymous than others there exists a powerful 
potential for harm.  My hope is that eventually this will create a market 
for anonymous transactions, black market transactions in the eyes of some, 
with little or transaction cost.  As suits like mine become difficult to 
conduct because of the use of strong anonymous remailers by defamers 
or posters or what not, parties will begin to defend themselves with 
anonymous accounts as well.

Of course the catch, or the feature, is that taxation and regulation 
becomes, not curtailed, but almost impossible.

You will not hear me assert that no-taxation is a good thing per se, but 
rather that an authority could be beneficial to subsidize market failures.  I 
note that this does NOT include today's concept of "market failure" nor 
fabricated externalities like "national security" or "the health care 
crisis."  I also note that such an "authority" would be much curtailed 
from today's concept of "government."

It is my experience that those who tend to the "law and order" mentality 
are really looking for a means to provide for ease of transactions, not 
the over regulation that results instead.  In my book ease of 
transactions is what it's all about.

On the other side of the political spectrum, the utilitarian / redistribution
of wealth types always seem to me to be struggling in a hopelessly circular
effort to make up for the failure of markets by regulating them further and
further into collectivism, instead of giving them the means to expand and 
bud into privatization.


-uni- (Dark)


-- 
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!