From: Greg Broiles <gbroiles@netbox.com>
Date: Wed, 29 Jan 1997 01:26:04 -0800 (PST)
To: Jim Choate <ravage@einstein.ssz.com>
Subject: Re: Libel/slander & crypto relevancy (fwd)
Message-ID: <199701290926.BAA25563@toad.com>
MIME-Version: 1.0
Content-Type: text/plain


At 10:42 AM 1/28/97 -0600, Jim Choate:
>> From: Greg Broiles <gbroiles@netbox.com>
>> 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.
>
>Thank you for agreeing with my thesis that the legal industry is one
>driven by monetary gain and not justice. It is the one major problem
>with law today, it ignores those who are not 'worth it'. Justice is
>supposed to be blind and until that happens there can be no true
>liberty. Law should be involved in rights and wrongs and not 'how much
>money do I need to buy that villa in Spain'.

Um, I was making the reciprocal of your point - that people with no assets
have a special *advantage* with respect to civil suits, they're able to get
away with a fair amount of misbehavior because it's not cost-effective for
plaintiffs to sue them. If you're a defendant, being ignored as not 'worth
it' is a good thing, not a bad thing.

>There is also the aspect of 'reputation' of the organization which was
>defamed. This will become even more critical to good business over the
>Internet in the future than it is now. Now the only really important
>'reputation' that one has to worry about is their credit report.

I disagree strongly here. Think about the reputations of Odwalla and
Sizzler and (Burger King? can't remember) after their E. Coli problems.
Think about the reputation of Radio Shack for making mostly crappy
products. Think about the reputation of some ISP's (Netcom, AOL) for
continuing to charge people's credit cards for months after a cancellation.
Reputation has many dimensions beyond credit reports. 

> Another aspect of this
>that keeps coming up is one of 'big' corporations with 'lots' of money,
>this monotonicity in legal thought is the reason I refer to the 'legal
>industry' and not 'legal profession'. Currently the main force driving
>law is how much money is available. Expansions of liberty simply can't
>happen in this environment because there is no mechanism to protect
>'little' organizations or persons without 'lots' of cash. This problem is
>one that is not being addressed by anyone, most especialy lawyers who
>will loose income which they aren't apt to do voluntarily.

I agree that people get screwed because they can't afford to litigate or
they can't afford a [good] attorney. But I think that the economic
dimension to litigation is not necessarily all bad - if litigation were
costless, what would prevent people from suing over essentially negligible
disputes? I think it's good for people to stop and ask themselves "Is this
dispute really worth fighting over?" The relatively high cost of litigation
is a way to ration access to a relatively expensive resource, e.g., the
courts. If litigants don't pay that cost, then taxpayers will. (And
shifting more costs to losing litigants makes it easier, not harder, to be
effectively judgment-proof by having few assets.)

>> 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.
>
>This would be hard to do in the situation such as a mailing list because
>the parties would have 'authorized access' and it does not include the issue
>of inside parties nor 'web bbs's' where parties can enter comments and
>other statements in a 'authorized' manner. There are mechanisms to use 
>computers for abuse of other parties besides hacking.

I don't think that that web BBS or mailing list messages alone will lead to
much criminal liability for defamation because I think it's difficult to do
a lot of harm in that medium. BBS's have existed for 20+ years now - and
how many online defamation cases have we seen? Maybe 10, total. Off the top
of my head the only ones I remember are _Cubby v. Compuserve_ and
_Stratton-Oakmont_, but there are probably others. Still, we're seeing
what, at best one reported case for every 2 years? Online defamation
liability exists, but I don't think there's ever going to be an avalanche
of cases, simply because the damage involved tends to be relatively small
compared to the monetary and emotional costs of litigation. 

>The point is that if joe-six-pack isn't secure in knowing that his views
>and expression are not protected from abuse he won't use it. We all loose
>in that case.

But Joe Sixpack's lack of protection from abuse is also Joe Sixpack's
protection from prosecution when he hasn't done anything wrong. Look at how
pissed off some people are when Sandy moderates the list - imagine how much
worse it would be if prosecutors were sifting through the list, identifying
messages they thought were "over the line" with respect to defamation and
then prosecuting the wrongdoers. Yow. Some people would be facing
three-strikes minimums based on a single day's messages. :)

I much prefer a world where we can engage in spirited debate without being
afraid of prosecution (or civil suits) over a world where a tiny misstep
means jail or litigation. You're of course free to want something else, but
it's hard for me to see the logic behind arguing against private moderation
but in favor of significant state regulation. 

Look at the way that big corporations use SLAPP suits to pick on Ma and Pa
Kettle now, and imagine what big corporations could do if it was easier to
create criminal liability for defamation. I think your proposed
strengthening of defamation rules will prove to hurt the "little guys", not
help them. 

>In this example, if party A makes a statement and then B changes it and
>then re-distributes it as original comments by A then there is a problem
>irrespective of the monetary worth of A or B. Digital signatures in and of
>themselves won't help this from happening unless it is required to include
>the full text and signature of any quote in any subsequent use of that
>material otherwise the quote and the digital signature are out of sync and
>therefore worthless.

But people who receive the message unsigned know they're getting an
unsigned message (or know that it was signed by the quoter, but not the
quoted author) and can make the appropriate assumptions about the truth of
the attributions, and adjust their assessment of the veracity of the quoter
if it turns out that the quoter is a liar, or if someone challenges the
quoter to produce a signed version of the statement and they cannot.

We seem to have survived OK so far without special rules to punish people
for lying - why do we need special ones for the Net? 

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