From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
Date: Wed, 8 Jan 1997 07:48:33 -0800 (PST)
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: Sandy and I will run a cypherpunks "moderation" experiment  in Jan
In-Reply-To: <3.0.32.19970107164034.006b6044@mail.io.com>
Message-ID: <Pine.SUN.3.95.970108104122.17163J-100000@viper.law.miami.edu>
MIME-Version: 1.0
Content-Type: text/plain


I'm not sure I see why a moderator would have any liability for passing on
a trade secret or even a classified military secret so long as the
moderator did not have a contractual relationship (or a clearance, as the
case may be) with the owner.  That's free speech.  The moderator might
have to cooperate with a subpoena from the original owner seeking to find
who stole/released the secret, but that's a different problem.  Is there
some trade secret theory of an implicit trusteeship that i don't know
about? 

On the more general subject of moderator liability, I vaguely recall that
the CDA had some badly-drafted language that was designed to reduce
moderator liability, but that it was so badly worded as to be ambiguous.
I'm just back from a months' trip and sorting through stuff so i don't
have time to look it up.  Anyone got it handy?

PS  I support moderation, at least as an experiment.  

As to the choice of the moderator, innocent until proven guilty, I say. 
I personally don't put much store in requiring a moderator to issue a code
of practice.  Common law and equity will do to evolve a system as it goes
along.

I prefer a system where the rejected posts are in a segregated list so
that they are easy to find.  Not everyone has great tools for merging two
lists to find the differences. Of course, the moderator liability issue is
at its greatest is the moderator creates a "trash" list, also know as a
"sue me" list. I do see how the legal position would be better if you have
an unmoderated list and a separate "best-of" list that is moderated.

Finally,  how about a THIRD list to discuss moderation issues so that it
doesn't clutter up the "best-of" list?  

On Tue, 7 Jan 1997, Greg Broiles wrote:

> 2.	Secrets which are being revealed (e.g., the alleged RC4 source, the
> Mykotronix trash stuff) 

[...]

> 
> The loss of (2) is regrettable; but Usenet (and other unmoderated forums)
> are still available for hit-and-run disclosure of secrets. Also, it's
> unclear to what extent (2) will be lost. Given the recent California and
> Federal statutory changes strengthening trade secret protection, I think
> it's useful to be careful - but it's arguable that neither the alleged RC4
> code nor the Mykotronix trash stuff would have been a trade secret
> violation. Also, let's weigh the value of what'd be lost (how many of these
> messages do we really get?) against the negative value of the crap we're
> currently subjected to, and the (speculative) value of posts we don't get
> because their authors have left the list because of disgust and annoyance.
>



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.