From: Jim Choate <ravage@EINSTEIN.ssz.com>
Date: Sat, 9 Nov 1996 21:09:08 -0800 (PST)
To: cypherpunks@toad.com
Subject: Re: Mailing list liability (fwd)
Message-ID: <199611100513.XAA01797@einstein>
MIME-Version: 1.0
Content-Type: text



Forwarded message:

> From markm@gak Sat Nov  9 21:03:24 1996
> 
> Note that none of these say anything about any commercial service being held
> liable for defamatory statements because the service cancelled a user's
> account or prevented a user from posting in certain areas.  I really don't
> see why you consider unsubscribing someone from a mailing list the equivalent
> of monitoring posts and exercising editorial control.

It is exactly editorial control because it prevents, a priori, submissions by
Vulis under that account. He is FORCED to resort to other means. That is
what the courts will see, it is what the jury will see, and it is what will
eventualy sink the list, and place its operator under financial burden for
years.

I joined this list under my own volition, I agreed to no review by the list
operator at any time. I did not agree to not hurt his feelings with my
comments or views. I did not agree to agree with the operator of the list.
I did not agree to make him feel warm and fuzzy inside. I agreed to NOTHING
other than my permission for him to put your submissions in my email box. The
only way I can be removed from this list and not open the operator up to
legal consequences is by my own volition or the total cessation of this list.
This applies to every member subscribed so long as their is no proviso posted
at subscription time.

They were held liable for the comments of their users BECAUSE they
demonstrated editorial control. In removing Vulis from the list he has
demonstrated editorial control. Prior to this act he was immune from
rantings and ravings of the various idiots on this list. Now he is not.
The fact that it was a commercial service was irrelevant and not an issue in
the court cases. What was involved was the responsibility of the service
operators, the agreement between service and users, and who had editorial
control (users v service). And finaly, if your contention is that if you set
up a press and start cranking out flyers (digital or otherwise), which defame
or otherwise liable, you are immune from prosecution unless you are a
business then you are in for a very rude surprise.

Sooner or later somebody is going to submit a posting which will go through.
That posting will be pointed at a particular personality. That personality
will take exception and sue the list operator, and because of this action
will have a very high chance of winning. Not only does the list operator
loose but we all loose because it is going to set a precedence that will
take many years more to recover from.

I seldom get personal but there are a few of you folks that have your heads up
your collective crypto-anarchy asses. Here is a simple process whereby you
can protect yourself from legal reprisals and you don't take it. God help
you because the courts shure as hell won't.

In case you people don't get it, the whole point is to REDUCE the influence
and control of the government (local, state, and federal). NOT to give even
more fodder to shoot. For a list operator a primary if not the primary
goal is to avoid any legal involvement at all costs. Throwing people off
lists with no subscription limitations is not the way to do that. To be a
succesful list operator your scruples and the way you treat your subscribers
MUST be beyond any reproach. The bottem line is that the act was not
professional and impacts the image of mailing lists, Cypherpunks, its operator,
and its members in a negative light. I have operated BBS'es and mailing
lists since '76 and find such actions on the part of a fellow service
operator to be insulting to the profession that I have enjoyed for 20 years.

Those of you who contend that because there is no explicit contract between
operator and subscriber this is sufficient to allow the operator to enact
any policies they wish with no warning or other consideration are in for a
nasty surprise. You will find that this will in fact prevent a list operator
from doing anything other than upgrading software, buying more disk space, and
paying the bills because that is the ONLY way they will be able to retain
commen carrier style protections. Without that protection a list operator is
faced with reviewing every submission to a list prior to redistribution or
face the legal and financial consequences. I do not wish to see the Cypherpunks
mailing list to become that litmus test.

Consider this, the Cypherpunks mailing list is a very public list in many
ways it is the vanguard of what tomorrows net will be like. Is this the sort
of environment that can survive? With this as the current list policy I
think we are all taking part in a dinosaur.

                                                    Jim Choate