From: frissell@panix.com (Duncan Frissell)
Date: Thu, 11 Aug 94 11:47:53 PDT
To: Patrick Juola <cypherpunks@toad.com
Subject: Re: Are Remailers Liable for What They Remail?
Message-ID: <199408111846.AA00988@panix.com>
MIME-Version: 1.0
Content-Type: text/plain


At 10:45 AM 8/11/94 -0600, Patrick Juola wrote:
>  

>My understanding is that, legally speaking, "considering [oneself]
>to be a common carrier" amounts to exactly nil -- that it requires
>a special act of some governing body to declare you to be a common
>carrier.   One might just as well consider oneself to be an
>accredited diplomat and therefore to have diplomatic immunity.
>
>Any of the real lawyers on the net care to comment?
>
>	kitten
>

Ah, the eternal Common Carrier debate.  The answer is the same as the last
few times.  "Common Carrier" status has little to do with exemption from
liability.  It has most to do with being unable to reject passengers, goods,
or phone calls.

The EFF would like the NII to be a common carrier so that 'the poor' could
get 'free' connections, most of the libertarians here would not.

Plenty of non-common carrier entities are immune from prosecution for ideas
that they unkowingly communicate -- bookstores for example (unless they are
*knowingly* porno bookstores in the wrong jurisdiction).  Compuserve was
held not liable for an (alleged) libel by one of its sysops.  Not because of
coomon carrier but because they had no knowledge or control.

Remailers have no knowledge or control hence no scienter (guilty knowledge)
hence no liability as a matter of law -- not a jury question BTW.

DCF

"Where is telecoms regulation when anyone can be a phone company?  Where is
banking regulation when anyone can be a bank?"