From: Michael Froomkin <froomkin@law.miami.edu>
Date: Fri, 26 Jan 1996 05:26:10 +0800
To: Weld Pond <weld@l0pht.com>
Subject: Re: Crypto Exports, Europe, and Conspiracy Theories
In-Reply-To: <Pine.BSD/.3.91.960125130741.19788A-100000@l0pht.com>
Message-ID: <Pine.SUN.3.91.960125145430.9349D-100000@viper.law.miami.edu>
MIME-Version: 1.0
Content-Type: text/plain



It's important to distinguish between what IS the law and what COULD BE 
the law.  And to recall that I at least am not talking here about what 
SHOULD be the law.

On Thu, 25 Jan 1996, Weld Pond wrote:

> At 23:12 1/24/96, Michael Froomkin wrote:
> 
> >If you are a government strategist, you might think, Why not make people
> >strictly liable for, e.g., any crimes planned with their remailers?  And
> >make ISPs strictly liable for crimes panned or executed on their systems?
> 
> But if all traffic is required to be encrypted which is going through the 
> remailer or ISP, how can they be liable for what they cannot possibly 
> know?  This will be the state of the net in a few years.
> 
It's called "strict liability" -- you are liable when you didn't know.  
The economic justification is that you were in the best position to avoid 
the harm (either by doing some checking, or, in this case (they, not I, 
would say) not offering the service at all.

> Can a courier be held liable for delivering encrypted documents that
> contained illegal information or were used in a crime?  I don't think so. 

they are not now, but why couldn't they?  E.g. tell courriers that they 
have a duty not to carry drugs, and must pass all packages by drug 
sniffing dogs?  I don't think that's a good rule, but it's probably 
constitutonal.

> Only if he knew there was something illegal going on.  How are remailers
> any different?
> 
They are not.

> What about a car rental agency that rented a car to a criminal with bogus
> ID that is used to commit a crime.  Was Ryder held liable for the Oklahoma
> bombing? No

It wasn't but that's because we don't have that rule.  the question is 
*could* they be?

. > 
> In these two situations, people are in business and profitting by
> providing a service that can be used to commit crimes. Shouldn't they be
> shut down too if remailers are.  I don't know where the idea got started 
> that the govenment has it within its power to make illegal any new 
> technology that *can* and *is* used to commit crimes.  It is a pretty 
> scary one though.  

No, we are not talking about "should" here.  I, at least, am talking 
about "can they" not "should they".

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm here.