From: Black Unicorn <unicorn@access.digex.net>
Date: Mon, 23 May 94 19:01:18 PDT
To: cypherpunks@toad.com (Cypherpunks List)
Subject: I sued tmp@netcom.com....
Message-ID: <199405240201.AA20714@access1.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


 
I ask humbly that no one redistribute this post.
 
I would prefer it to remain within the "family" of cypherpunks, and not 
filter out to the Usenet community or anyone else for that matter.
In addition, please do not bait or harass tmp@netcom.com, who is under 
non-disclosure obligations and has been through quite a lot.
 
As trust is key in our proto-community here, I have little reservation 
in revealing what is not restricted by non-disclosure agreements to you 
all.
 
Please do not make me regret it.
 
-uni- (Dark)
 
In early May I incited a flame war of significant proportions in the 
newsgroups of alt.security.pgp, sci.crypt, and most of the crypto-
politics groups on Usenet.  I responded to a post by everyone's favorite 
net personality, tmp@netcom.com.  Mr. tmp had written a scathing and 
somewhat damning review of the politics and goals of the 
"cryptoanarchists," a term lifted from Mr. May of this list.  While 
usually Mr. tmp's rants are laughable, here he had formulated at least 
some cognitive ability and integrated it into a fairly well written 
message.  As most of the regulars were probably taken to ignoring, or 
killing any writings by tmp, his postings would usually not be a 
concern.  In the face of a new, kinder, gentler tmp@netcom.com however, 
I feared some of the newbies at impressionable stages might side with 
tmp and become rooted in the belief that crypto is a basically dangerous 
thing that should be "born classified."  I'm sure each of us will recall 
a moment, or a period where such a fork in the road might have existed 
for us.
 
In any event, I composed and posted, crosspostings intact, a rebuttal.  
I can't recall if I posted a copy here or not, but I suspect that I did.  
I think I even got some compliments for the posting from associates and 
friends of mine.  Regardless, the result was an enraged tmp@netcom.com 
who began an increasingly deteriorating set of attacks which finally 
ended up in purely personal degradation with myself and the cypherpunks 
in general as the primary targets.  tmp@netcom.com also felt free to 
adopt my own writings as form letters, changing the names where 
appropriate and misattributing them to himself.  In all I posted 5 
messages.  Over 50 messages, about half of which were replies to his own 
postings, appeared from tmp@netcom.com.
 
When I had just about forgotten the matter, I received a phone call from 
a business associate and former classmate of mine.  He wanted to know if 
there was any truth to the rumor that I was a published anarchist of 
revolutionary proportions, set on toppling the government of the United 
States and eliminating the boarders of the world.
 
Now, those of you who know me in any personal way will know that I 
travel in extremely conservative circles.  For those of you who don't, I 
own businesses and to a lesser degree do some legal work in the states 
and abroad.  I'm a Georgetown Law graduate and I hold a LL.M. and a M.A. 
in International Relations.  Among other things, I own a manufacturer 
and distributor of highest end, handmade, wood furnishings based in the 
states, with the majority of business having a distinctly international 
character.  (Shameless pitch)  I am known for my business like 
character, a valuable asset needed to maintain some respect in that I am 
quite young for my position.  In Europe, business associates and family 
of mine would look quite dimly at my views, mostly unable to see that I 
am in essence a moderate, even a slightly rightist moderate 
economically.  Such a leftist reputation, deserved or not, would 
doubtless brush off on my family as well, with the accompanying negative 
impact.  I would add that in my section of Europe, such reputational 
concerns are much amplified, especially in business relations.  I post 
here and about Usenet with an assumed identity to guard against just 
such an event.  This in itself makes quite an interesting case for 
anonymous remailers and identity firewalls on the net in general.
 
After some questions, I traced the source of the rumor back through a 
state side friend of mine who, ironically, I had introduced to Usenet.  
Said friend had forwarded a few of the tmp@netcom.com postings to 
another mutual acquaintance, intending, innocently enough, such as a 
humorous diversion  The rest of the story looks like that old shampoo 
commercial (and she told two friends, and they told two friends....), 
modernized with fax machines and e-mail.  Clearly, some recipients 
farther down the line were not privy to the context of the posts, others 
assumed the sources to be the print media, by virtue of the type set one 
recipient printed in ("New Century School Block"), and thus thought them 
"accurate."
 
Earlier, I asked for a public retraction an apology from tmp@netcom.com, 
and was predictably, laughed at.  I explained to tmp@netcom.com that if 
he did not tender an apology and retraction, I would consider legal 
action.  Laughter could be heard at the other end of the e-mail message 
I received in return, and tmp@netcom.com felt free to repost my e-mail, 
with some dramatic license, to his ever growing, self replied, Usenet 
thread.  A client called from Switzerland and asked about the rumor this 
same day.  Said client is a frequent legal client and the recipient of 
our lowest bid for the furnishing of the executive offices of a new 
world headquarters nearing completion, a rare order in this economy.  I 
am not a person prone to law suits, this was, however, a bit much to 
stomach.
 
I contacted some of my legal friends and co-workers and we did some 
research on the problem.  (Interestingly enough the David Sternlight 
libel suit was suggested by Mr. Sandfort on this list right when I was 
concluding my research on the same topic for my own legal problem).  In 
many ways the tmp posting seemed a classic libel/defamation suit, the 
only difference being the introduction of Usenet and e-mail to the 
formula.  One of my attorneys suggested we treat the initial 
distribution as a mass mailing, and bring some caselaw on that line into 
the brief.  Interestingly enough the parallels here are quite close.  
The Usenet distribution was made to several parties who "subscribed" to 
a public forum.  This had the additional effect of making 
tmp@netcom.com's later postings (which were almost entirely personal 
attacks) appear out of place with the "forum's" topic and look very much 
like "reckless disregard for the truth," a standard which would have 
allowed significant punitive damages to be invoked.  It also kept tmp 
out of the "member of the print media" category which would have put the 
burden of proof of the falsehood of tmp's statements on me.
 
I spoke to a Federal Court of Appeals Judge who I have known for a 
number of years to try and poke some holes in the suit on substantive 
merits.  As far as he was concerned, the suit was one that he would 
entertain in his court room "without reservation."
 
We decided on a initial suit of damages in Federal Court and in the mid 
to high six figures.  This allowed an amended complaint, if the Swiss 
deal fell through, in the low seven figures.  Had this been the case I 
could not have even begun to accurately peg the damages as this client 
was often a significant "rain maker" for us.  Needless to say, and as is 
the practice with all suits, no one expected we would be awarded the 
full amount in any event, or that tmp could afford to pay for it.
 
I contacted netcom.com to see how they might respond to the suit, and to 
ask about the need for a preliminary injunction to prevent data in and 
about tmp's account from being destroyed inadvertently or intentionally.  
Netcom.com was initially not very cooperative.  They suggested I sort 
the problem out with tmp, and that it was not their issue.  This was 
until my attorney called Mr. Bruce Woodcock at Netcom support services.  
Mr. Woodcock was VERY cooperative.  He was very interested in avoiding 
liability and was perhaps the best card we had in the suit.  While I 
cannot go into detail as to the specific support he provided, I think it 
is safe to say AS A GENERAL MATTER that while most internet providers 
will be very strict about privacy for their account holders, the 
appearance of legal proceedings and potential court orders make a 
provider very interested in not being named as a co-defendant. (Note 1)  
I must thank Mr. Woodcock and commend him on his excellent balance of 
client privacy and respect for the judicial system.
 
Our request for the seizure of materials potentially discoverable under 
Federal Rule 26 of Civil Procedure was (at our request) carbon copied to 
tmp@netcom.com.
 
The next day I received a mail bomb with the phrase "I do not appreciate 
your threatened lawsuit!" copied ten thousand (10,000) times, and forged 
through a telnet (STMP?) port (25?).  Some hours later I received a 
rather more subdued letter from tmp@netcom.com suggesting that from his 
(unknown) legal perspective I had little grounds for a case and that he 
was sure EFF would be interested in defending him.  On the advice of 
counsel, I did not reply to the letter.  I did however begin to notice 
the following disclaimers on tmp's messages:
 
DISCLAIMER: the above statement in no way implies that the pseudonymous
entity Black Unicorn, unicorn@access.digex.net, is a cryptoanarchist.
Furthermore this message does not reflect any views of L.Detweiler.
 
sincerely,
tmp@netcom.com
 
The next day I received an even more subdued letter, highlighting tmp's 
lack of resources for a legal defense, and sounding even a little like 
an apology.  Against the advice of counsel, I decided to answer this 
one, and suggested that we talk over the phone about settling.  I agreed 
that whatever happened, I would not reveal his identity, a small 
concession in my view.
 
I settled with tmp@netcom.com for terms which I will not disclose.
I will say that it was worth my while.
 
In a way I'm sorry the case didn't go to the courts.  While it probably 
would not have been a precedent setting one, because it doesn't seem 
tmp@netcom.com could have appealed a ruling and gotten it into the 
record books as an appeals case with some precedent, it would have been 
interesting to see what sort of liability Usenet might present.  In a 
way I felt guilty.  Usenet and the net in general is such a break from 
the normal rules and fears of liability it seemed a shame in a way to 
introduce the ugly head of jurisdiction and subservience to the legal 
system to cyberspace.  I also don't like to be a bully.  In another way 
it seemed like a no-lose situation.  If I won a suit, I would be 
vindicated (as petty as that is), and there would be some clue as to how 
far one could go on Usenet and in cyberspace in general.  If I lost, I 
would be just as pleased that the line had been drawn and the results of 
basic immunity to defamation and libel would have been quite a social 
experiment, a result still quite worth the expenditure for me.  In 
addition, I was very interested in discovering how a court, the ultimate 
throwback to the real world, would impose (or refuse to impose) 
traditional legal theory on Usenet and electronic mailing lists in 
general.  As a legal scholar, it was a problem that presented a 
wonderful chance to see the law evolve literally right before my eyes.  
In retrospect, I'm not sure I would have been so pleased if the Swiss 
deal had been compromised in the process.
 
Note 1:
It seems to me that the entire event highlights the potential demand for 
anonymous utilities on both sides.  tmp would have been much better off 
for his ability to use remailers, and I would have been much better off 
had I guarded my pseudonym more effectively.  The interesting solution 
would be a multi-jurisdictional remailer making records non-
reconstructable, and guarding the operator from jurisdiction and 
liability.  tmp's greatest weak spot was Netcom's potential liability.  
I would have been hard pressed to sue had Netcom not been so easily 
included as a defendant.  Netcom's cooperation (which was not at all 
"voluntary" I must add, but rather based on significant perceived, 
potential liability) made expensive depositions and numerous 
interrogatories throughout the discovery game unnecessary, and probably 
would have been much more difficult if Netcom had insisted on pursuing a 
hearing in court on each request and fought tooth and nail as (I assume) 
Julf might have.  This applies even under the revised Federal Rules of 
Civil Procedure which recently went in effect and are in part designed 
to reduce the adversarial nature of discovery.  Should the rules 
continue to evolve away from the adversarial direction, forcing 
defendants and plaintiffs to reveal more for less, anonymous utilities 
will become more and more valuable.  Anonymous utilities with multi-
jurisdictional components are CRUCIAL in this litigious, sue happy 
country.  (Call me part of the problem if you like.)  I would have been 
SOL had tmp decided to post through an overseas remailer, or one which, 
regardless of jurisdiction, had a means to avoid civil liability.
 
In any event this raises another matter.  How then are remailers to be 
supervised?  My personal feeling is that Julf, or any remailer operator, 
would have blocked tmp's use of a remailer far before Netcom would have.  
(Note that Netcom STILL has not revoked tmp's account, I guess they are 
just asking for trouble?)  In as much as remailers are operated by those 
who have some degree of respect for Usenet and cyberspace in general, 
the kind of self patrolling that goes on seems to me as effective, 
provided there isn't an imposition by the operator of the morality 
legislation that remailers are often used to circumvent (pornography, 
etc.)  In my view the traffic level alone of tmp's Usenet posts is more 
offensive than any pornography, tax avoidance, political activism, or 
free marketing that goes on through remailers.  It should be this, along 
with harassment or obvious forum abuse that should dictate the line at 
which a remailer operator blocks access.  In the current system, as 
displayed by Netcom's policy, it is quite the opposite that is affected.  
Potential legal liability (which is based on the whims of the empowered 
jurisdiction) is the only effective bar against misconduct.  The 
implications of a nationalized internet are quite unnerving in this 
context.  In a way Netcom is a victim here.  They are at the mercy of 
the U.S. legal system despite what is or is not morally acceptable in 
cyberspace.  In a way they have dug their own hole.  Their restrictions, 
and motivations are based on profit, not on ethics.
 
-uni- (Dark)

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