From: Greg Broiles <gbroiles@netbox.com>
Date: Mon, 27 May 1996 06:43:31 +0800
To: cypherpunks@toad.com
Subject: Remailers & liability
Message-ID: <2.2.16.19960525223433.092f4224@mail.io.com>
MIME-Version: 1.0
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Hello again to list folks. Had to disappear for a bit due to school & work,
but am back for a few weeks before the bar. (doh.) I upgraded from Eudora
Lite to Eudora Pro before resubscribing and find its filtering makes the
cpunks traffic much more manageable. Cheerfully recommended to everyone
who's still got cpunks dumping in their regular mailbox and cursing at the
lack of mail kill files. 

Have been following the discussion re remailers & liability. The use of
waivers and hold-harmless clauses and ROT13 and all of the rest seems like
it might have some potential where the potential plaintiff you're worried
about is a message recipient angered or shocked by receiving mail which
bothers them.

I don't think they'll do much good where the potential plaintiff is a third
party whose gripe is that the material was distributed. I'm thinking here of
copyright plaintiffs like Newsweek or Brad Templeton/Clarinet or the Church
of Scamentology, or a person concerned about invasion of privacy or
defamation. A recipient can't waive/disclaim the rights of a third party,
and an indemnity clause isn't worth much without assets and an honest
intention to back it up. Waivers and disclaimers also aren't likely to be
any help against criminal charges, because the aggrieved party is the State,
not the "victim".

The real key to long-lasting remailers is relatively judgement-proof
remailer operators who aren't scared of going to court. (cf. Grady Ward and
Arnie Lerma) Remailer operators are first amendment activists who are going
to take heat the same way that environmental and anti-abortion activists
have. I talked with one woman who was hit with a judgement by a timber
company after she & other activists blocked logging equipment, causing the
timber company to lose money (_Huffman-Wright v. Wade_, 317 Or 445, 452, 857
P.2d 101 (1993)) - her comment was that she's able to maintain a reasonable
but not luxurious life with the roughly $9000 per year income that the
judgement creditor can't touch, and that the minimal possessions which can't
be seized by the sheriff are enough for her. Remailer operators may have to
choose between comfortable living and their commitment to the principle of
free speech. 

Remailers are attempting to do something that the legal system is hostile to
- allow action (potentially harm) without corresponding liability. (If the
remailer's not liable, and the sender isn't identifiable, there's nobody to
sue and nobody to throw in jail.) Some people on the list take the position
that sending and receiving electronic data cannot create the sort of harm
that the legal system ought to concern itself with. While this might be the
case (I'm not convinced yet either way), it's certainly not the law. Lots of
tricky lawyers spend lots of time trying to structure relationships so that
it's possible to have activity without liability for their clients. As far
as I can tell, the way to achieve this result is through public relations
and lobbying (e.g., "tort reform"). Unfortunately, remailer operators aren't
as sympathetic as big insurance companies, so we may lose out. :( 

For what it's worth, I'm still planning to run a remailer again when I get
settled down somewhere. (I don't think remailers do much good where the
operator isn't root, so I'm not bothering with trying to run one on someone
else's system.) My debt/asset ratio is bad enough from all of this school
that I don't have much for anyone to levy against. Ha, ha. Anyone want some
rapidly obsolescing computer and law books? :(

--
Greg Broiles                |"Post-rotational nystagmus was the subject of
gbroiles@netbox.com         |an in-court demonstration by the People
http://www.io.com/~gbroiles |wherein Sgt Page was spun around by Sgt
                            |Studdard." People v. Quinn 580 NYS2d 818,825.