From: Black Unicorn <unicorn@schloss.li>
Date: Sat, 25 May 1996 17:50:42 +0800
To: "E. ALLEN SMITH" <EALLENSMITH@ocelot.Rutgers.EDU>
Subject: Re: An alternative to remailer shutdowns
In-Reply-To: <01I53JFM4MP28Y4Z90@mbcl.rutgers.edu>
Message-ID: <Pine.SUN.3.93.960524224338.27374E-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Fri, 24 May 1996, E. ALLEN SMITH wrote:

> From:	IN%"unicorn@schloss.li"  "Black Unicorn" 24-MAY-1996 11:44:01.40

[...]

> >In the practical world, the plaintiff who is trying to enforce a software
> >licensing agreement is much better off than a defendant trying to resist
> >liability for a tort.
> 
> 	I would gather that countersuits for violation of a contract - that not
> to sue - would not be likely to succeed. Unfortunate.

Really hard to get courts to pay attention to these.
Signing away the right to process is a thorny thing.

> >That depends.  If there was reason to believe, for instance, that the
> >message might indeed be four-horseman type (as a plaintiff's attorney I
> >would jump all over any messages which came from "soandso@PLO.com" or
> >somesuch) then negligence becomes an issue regardless.  Perhaps the host
> >was the site from which other nastiness was mailed?  Anything that could
> >be shown to put the operator on effective, implied, or constructive notice
> >that something was amiss.
> 
> 	A clear reason for demanding that mail come from a recognized remailer
> before putting it to an output end. In this case, the ouputting remailer never
> has to worry about it - that's the job of the actual primary inputting
> remailer.

Remailers on the attack points (first in chain, last in chain) simply MUST
be disposable as tissue.  They must be run as anonymously as possible,
with as little connection to the ISP's assets as possible and immediately
disposable.  They must be easy to set up, runable without root and there
must be a much more efficent tracking mechanism.  (Mr. Levin has done a
terrific job, but even more needs to be done).

This wanton suing, as I think we all know, is an abuse of the copyright
protections and their intent.  The only way to really deal with it is make
remailers unassailable.  Doing that with tricky dick type legal arguments
will, in my view, eventually fail.

It only takes ONE operator to get a tiny ($2500-$10,000) fine or judgement
and that will be the end of most of the mailers.  Poof.

This we cannot allow.

> 
> >Remember, technical savvy judges are few and far between.  Technical savvy
> >juries are nearly non-entitites.  My concept of what is or is not
> >suspicious when it comes to such things is going to be much more
> >sophisticated than that of a judge or jury in most if not all cases.
> 
> >This is an important point.
> 
> >The truth of the matter is entirely pointless in the U.S. Judicial system.
> >The APPEARANCE of the matter is key.
> 
> >'punks seem to forget this in all their discussion of what a court might
> >do because, simply put, they know more than 99% of the population about
> >the subject.
>  
> 	The simple way to put this is that juries and, indeed, the voting
> population, are completely incompetent to be in power. This is always
> something that one should remember, and an excellent argument as to why
> democracy is not a good system of government.

I wouldn't go this far.  It is an excellent argument for picking juries
that are experts with regard to the subject at hand.

In my view trying to balance bias rather than eliminate it is much more
effective.

> 
> >From the recipiant?
> >I would simply put a notice of where complaints can be directed to, and
> >publish a stated (and carefully worded) policy for addressing abuses.
> 
> >This will go a LONG way to insulating remailer operators.

[...]

> 	Would also doing a respond-back hold harmless agreement, of the form
> perhaps of: "We do our best to guarantee that this system will not be used
> illegitimately. Unfortunately, this is not always possible. By responding to
> this message and requesting us to send you the information in question, you are
> agreeing to hold us harmless." help any? Or would this be seen by the court as
> an attempt to reduce liability when the court (incorrectly) believes it should
> be assigned?

If harassing mail is the issue, I can see how this might help in terms of
image.  I don't think its a complete solution however.

Again, I think the attack points have to be protected.

> 	-Allen
> 

---
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