From: Tim May <tcmay@got.net>
Date: Tue, 17 Jun 1997 06:44:38 +0800
To: cypherpunks@Algebra.COM
Subject: Re: Anonymous proxies & ITAR question
In-Reply-To: <3.0.2.32.19970616102113.00751b44@popd.ix.netcom.com>
Message-ID: <v03102807afcb6a045849@[207.167.93.63]>
MIME-Version: 1.0
Content-Type: text/plain



I want to elaborate on a point I made earlier:

At 1:11 PM -0700 6/16/97, Tim May wrote:

>"I operate an electronic mail service. I abide by the terms of the
>Electronic Communications Privacy Act,  the ECPA, and I do not inspect or
>monitor the contents of the mail flowing in my system. To do so would be a
>violation of the ECPA. And besides the ECPA, such inspection would be a
>violation of the property rights of my users.

It's important to realize that "scienter" (knowledge) of some criminal act
is an important part of the law in the United States.

We don't hold the owners or operators of a storage facility, like a
U-Stor-it, responsible for illegal materials stored, be they drugs,
explosives, guns, pornography, crypto, dead bodies, or other illegal or
contraband things. We also don't expect operators of such facilities to
inspect items going into storage. (I'm _not_ saying customers have some
right of privacy, I'm saying that operators make contractual arrangements,
and inspecting contents is a time-consuming thing which they'd rather not
do, and which their customers would rather not see done. What law
enforcement might want is another matter, as it usually is, and for this we
have a thing called "the court system.)

Likewise, we don't hold hotel owners or clerks responsible for the many,
many crimes and misdeeds which hotel rooms are notorious for. Hotel rooms
are the favored locations for prostitution, narcotics deals, plotting of
crimes, etc.

(In both of the above examples, it is possible to imagine circumstances in
which a storage facility or hotel is charged with complicity in one way or
another. Sometimes hotels which encourage prostitution are hit with various
charges, including "public nuisance" laws. But these do not affect the more
basic point that scienter is expected before a crime is charged, and that a
kind of "containerization" of property rights means that the temporary
users of some property are responsible, not the actual owner or leasor.)

The renter of a car or truck is not responsible for the contents. The
driver of a truck is not responsible for illegal substances contained in
packages that are not his and that he had no knowledge about, etc. Federal
Express is not responsible if porn is sent in violation of some law.

(Yes, there are some exceptions. Nuisance laws, negligence laws, etc.
Again, not related to the central point. Some believe remailers could be
hit under the nuisance laws, but I am skeptical of this....publishers
cannot be shut down because they are a "nuisance," so far as I know. Lots
of things to consider here.)

I think this line of reasoning, that the "common law" in Western countries
is that owners and leasors are not the one responsible for crimes committed
using their property and services (unless they are knowledgeable about the
crimes, which is a separable issue), is straightforwardly applicable to the
remailer issue.

Besides, the ECPA, as noted, makes it an explicit crime for mail services
to inspect the contents of mail except under specified or agreed-upon
conditions.

--Tim may



There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1398269     | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."