From: Jim Choate <ravage@EINSTEIN.ssz.com>
Date: Sat, 9 Nov 1996 11:32:34 -0800 (PST)
To: cypherpunks@toad.com
Subject: exclusion/censorship and the law (fwd)
Message-ID: <199611091936.NAA01142@einstein>
MIME-Version: 1.0
Content-Type: text



Forwarded message:

> From: Greg Broiles <gbroiles@netbox.com>
> Subject: exclusion/censorship and the law
> 
> never faced any extended scrutiny because the parties settled. Also,
> Prodigy, the defendant in Stratton Oakmont, exercised much greater
> editorial control over postings on that service, and had the ability to
> remove postings, which is something John Gilmore can't do.

He certainly can, this list runs under Majordomo which allows exactly this
kind of control if desired. I use it on my own lists and am quite familiar
with its operation. It is completely feasible for the operator to look at
EVERY submission prior to re-distribution and set the time stamp in such a
manner that there would be no evidence it ever occured.

> So my impression is that you've got the tail end of a useful concept
> (ability to control is frequently a factor used to determine liability) but
> are making far too much out of it. One really big difference I see here is
> that editorial control of the Cpunks list has occurred once (in 4? 5? years
> of the list's existence), is on a per-person not a per-message basis, and
> *does not function to restrict who can send messages but only limits Vulis'
> ability to _receive_ them on his usual system(s)*.

How often it occurs is irrelevant, this is like saying one rape is not a
crime but two is. Utter hogwash. Vulis was removed from the list, this
means he can't SUBMIT posts. This is censorship. The act was based on the
content or personality of Vulis' submissions. It was not based on a
limitation of the software, the Internet feed to the list, or the ability of
the hardware to handle more traffic. In short it was an emotionaly based
action.

> You might take a look at Mike Godwin's article on net defamation at
> <http://www.eff.org/pub/Legal/net_libel_godwin.article>; by now it's a
> little old, but I don't think anything's happened since which would change
> its reasoning. 

I have read it. I live in Austin, TX. and am quite familiar with the whole
Steve Jackson event (I was involved in it peripheraly) as well as how it
started EFF. I am currently peripheraly involved with the Austin EFF chapter
through the Austin Cypherpunks mailing list (which I host). My first
exposure to PGP was v1.0 from Adelante BBS, and I had been using and playing
vith various crypto related programs for quite few years prior to that.

> The problem with absolute statements like this is that they ignore
> important distinctions about scale - e.g., I think that it's very important
> that people, generally, be free to discuss whatever they want in private
> homes. But I also think it's very important that I be able to tell other
> people that they're not willing to discuss whatever they want in *my* home.

An action is right or wrong, irrespective of scale. If one person does it
doesn't make it any more wrong than if hundreds or millions do it. Right and
wrong are NOT scalable.

But this is not a private list. It has no warning about policies at
subscription time. It has been advertised for years as a open forum for the
discussion of crypto and speech related issues in clearly public venues.

I run a couple of 'private' lists. It is not possible for you or any other
party to become involved without agreeing before the fact to certain
editorial policies. This does not occur here. Where the 'press' is located
is irrelevant to this discussion. The point which seems to be missed is that
it takes in a single submission and then distributes multiple copies
(without editing) to ANYONE who wishes to subscribe.

In point of fact, the various articles in Mondo 2000 (back when the list
first started) and those since can be clearly interpreted as an invitation to
join the list via clearly publicly distributed medium. In effect it would be
like declaring your home an 'Open House' via the local newspaper.

> Not because I'm especially excited about censorship, but because I enjoy my
> privacy and my peace & quiet. So on the level of national rights, yes,
> unrestricted speech is an excellent thing. But on the level of my living
> room, unrestricted speech is a very bad thing. 

Then don't invite people to your house via magazines, newspapers, or Intenet.
Unrestricted speech is a good thing. Speech without personal responsibility
for the consequences is a bad thing. There were no consequences to Vulis'
speech other than the emotional impact it apparently had on the list
operator.

Personaly, I use the same standards of speech that I apply to the public at
large as I do to that small sector I explicity invite into my home. I don't
have a double standard in this regards.

> I don't think anyone who is arguing that it's fine to throw Vulis off the
> list would make the argument that it would be acceptable for the government
> to throw Vulis off of the Internet. 

Who does the throwing is irrelevant. The point is that a policy of
'hands-off' was enacted over the years and it was changed with  no warning
or opportunity for other list members to become involved. This list is a
community, it is not some individuals private property. In no way can you
successfuly argue that my email address in the subscription list qualifies
me in any way as 'property' of the list operator nor does it imply any
agreement on my part to allow that party editorial control of my submission
under the previous submission limitations (ie none).

Another aspect is that the credibility of this list as an open forum for the
discussion of crypto and speech related issues has been tarnished if not
downright lost.

As to the anarchy aspect, that has forever been lost.

> The closest thing I can see to a First Amendment argument against Gilmore
> is the "company town" argument, that the list is so much like a city or
> town that it ought to be subject to the restrictions that the First
> Amendment puts on municipalities and traditional public forums - but even
> this (rather far-out) argument got shot down a few days ago when our
> beloved Wallace of CyberPromo tried it in _Cyber Promotions v. America
> Online_. The judge said "no way", and I think that argument's a lot more
> plausible against American Online than against John Gilmore. 

It has nothing really to do with the First. It does have to do with the
agreed upon contract between the operator of the list and its subscribers.
By enacting this policy of censorship the original 'contract' (ie none) has
been broken and a new contract put in place. Had everyone received a warning
and then been unsubscribed and at the time of re-subscription a clearly
worded explanation of new policy been made available I would have no
problem. I do have a problem with arbitrary reprisals against individuals
based upon their submission content. There but by the grace of God go I (or
you).

As a matter of fact, the issues raised in both the CompuServe and Prodigy
cases did NOT revolve around the First but rather who held editorial
control. This is EXACTLY the issue here. My previous referal to ;login
is a pointer to a discussion of these two cases explicitly.

> I don't think this makes any sense. "Public list" has no special meaning.

public list = unmoderated and open to anyone

> My impression is that you're trying to make an analogy to public places
> which are privately owned like motels and lunch counters and amusement
> parks, where the owners (despite being private actors) cannot discriminate
> on the basis of race, gender, national origin, etc. (See, e.g., Civil
> Rights Act of 1964, 42 USC 1981 et seq)

Not at all. A 'public' list is a list which has no editorial policy and is
open to any party for membership. It in effect has no qualification
criteria.

> But I don't think there's any especially credible allegation that Vulis was
> discriminated against on the basis of protected class membership; nor is it
> clear that the Civil Rights Act can be extended to the operation of mailing
> lists.

Can it be extended to my operation of a paper printing press in my garage
through which I distribute pamphlets or flyers to any party which requests
them by sending me their address? If so then it applies here.

> If there's no prohibited discrimination (either because there's no
> prohibition, or there was no "discrimination" within the terms of the
> statute) then I don't see a cause of action. Wanting something you're not
> getting isn't enough. Owners of "public places" like malls or stores or
> restaurants are still free to exclude some people for non-prohibited
> reasons (like not meeting the dress code, or having behaved poorly in the
> past).

But to do this they MUST post or publish those codes in a place where a
patron can clearly see them. This was not done here.

> I am pretty disappointed to see that none of the people who profess to be
> shocked and wounded at Vulis' exclusion have bothered to set up your own
> lists. In my mind, whatever moral outrage you claim to have looks awfully
> small compared to the relatively small burden of doing something about what
> you say is bothering you. 

I run several lists including two that are crypto related (Austin
Cypherpunks and Advanced Computer Experimenters).

> I think that "cypherpunks write code" can/should be understood as a
> question, e.g., "what are you doing to change the things that bother you?" 

Among other things I am bitching about the arbitrary and unfair way this
list is being run considering the environment it was supposed to foster.


                                                   Jim Choate