From: Greg Broiles <gbroiles@netbox.com>
Date: Tue, 28 Jan 1997 01:37:04 -0800 (PST)
To: Jim Choate <ravage@EINSTEIN.ssz.com>
Subject: Re: Libel/slander & crypto relevancy
Message-ID: <3.0.32.19970128012643.006ea2c8@mail.io.com>
MIME-Version: 1.0
Content-Type: text/plain


At 08:50 PM 2/27/97 -0600, Jim Choate wrote:

>I predict that within the next five years these
>slander/libel laws will be used by some organization to prosecute defamation
>of their Internet presence (eg web page graffitti). Within 10 years this
>area will be one of the hotest areas of the new communications law.

Civil actions against people doing "graffiti" are only interesting where
the defendant has assets worth suing for. This economic dimension
substantially limits the number of suits which will be brought.

Corporate plaintiffs, if they chose to bring suit, would in many cases
prefer to sue in federal court. (Federal juries tend to be more
conservative and hence pro-corporate; they're also more likely to be
friendly to an out-of-town corporation suing a local individual). To sue in
federal court, the plaintiff needs to find a federal question or diversity
jurisdiction. Other causes of action (like copyright infringement,
trademark dilution, or false designation of origin) would provide a federal
question and hence federal jurisdiction.  

Criminal prosecutions for defamation (in the case of "graffiti") are still
unlikely - a much more straightforward charge would be unauthorized access
to a computer or some flavor of fraud, depending on the facts. Confusion
aids defendants, so I predict prosecutors will avoid defamation law (and
its tar pits of actual malice and the defense of truth) when they are able
to do so and still have a reasonable chance of conviction.

>If they don't
>understand the technology (eg forwarding private email to publicly
>accessible lists by accident) how in the world are they going to understand
>what is best, let along convince anyone else?

There's a world of difference between understanding technology and screwing
up once in awhile. Perhaps you've never screwed anything up (although your
summary of US defamation law ought to count), but the rest of us do, from
time to time. Were I involved in computer-related litigation, I'd choose an
attorney who could talk to a jury over an attorney who was good with
computers, hands down. Not even a question. And I'd pick an attorney who
owned up to making mistakes sometimes over someone who  imagined him or
herself somehow superior to people who fuck up now and then. 

>It has been proposed by at least one party that a district attorney or other
>public prosecutor would not act on such events. This is also naive.

I was that "party", and I guess that in trying to be civil I was actually
unclear. If you were a politically important person or organization, and if
Toto's message had caused you real damage, and if Toto were reasonably
available to prosecute, a prosecutor might get interested. But you're not
important, Toto would be difficult to extradite, and you weren't harmed. So
you picked a crappy example to make your point(s) with. Change the facts,
and you'll get a different answer. Duh.

>The
>ramifications for their political opponents to use this 'insensitive and
>clearly self-interested' refusal to act as a perfect example of how that
>prosecutor is interested in their own political career and not in the
>interest of the people they are charged with protecting as well as a good
>demonstration of their technological ignorance. It would be very difficult
>to get re-elected in such an environment.

Yeah, I'll bet that your local prosecutor's failure to prosecute Toto is
going to cost them dearly in the next election.

You picked a hypothetical which did a poor job of illustrating the points
you're making in this later message. Do you want to talk about whether or
not Toto is criminally liable for making fun of you while making a point
about ownership of networks and its relationship to freedom of speech, or
do you want to talk about the more general case of liability for
misattribution? If it's the latter, yes, there are some issues there, but I
still think that defamation law is a poor way to address them. You seem to
be having an "I've got a hammer, everything looks like a nail" problem. 

And all of this seems a bit contrived if the real crypto-relevant point is
"use digital signatures to avoid misattribution". 

>All that I ask is that instead of jumping the gun and saying 'it ain't so'
>you simply consider the ramifications from 'their' perspective. It truly is
>amazing what one can learn by walking a mile in another mans shoes. For if
>there is one truth to be learned it is that this discussion is not about how
>it is, but rather how it will be and how it should be.

Despite your closing, I haven't seen you write anything about "how it
should be", beyond the idea that people should learn more about digital
signatures. You've forwarded lots of information from other people's web
pages about defamation liability in different jurisdictions, but no
discussion about why the rules we've got now are good ones (or bad ones).
Other commentators have suggested that defamation law is obsolete (Tim May)
or should be reconsidered in light of a victim's ability (via the net) to
reply to a defamer (Mike Godwin). Do you have a proposal along these lines? 

Your message suggests to me that you're very pro-plaintiff with respect to
defamation (at least when you're the plaintiff), but you haven't explained
why other people should adopt your perspective. You did suggest that juries
are also likely to think it's in their best interests to find for
plaintiffs (because they might find themselves in similar circumstances
someday); but it's unclear to me why that reasoning wouldn't make them
equally likely to side with defendants (because they might be wrongfully
accused of doing something bad), or why your logic wouldn't apply to every
case, not just defamation cases. 

And, for what it's worth, juries aren't supposed to consider "what is in
our best interest" either as individuals nor as a community, nor is that a
legitimate topic for argument to the jury with respect to questions about
liability or guilt.


--
Greg Broiles                | US crypto export control policy in a nutshell:
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http://www.io.com/~gbroiles | Export jobs, not crypto.
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