pornography & the ``cypherpunk cause''

First of all, a clarification. I raised this issue with EFF because I'm
utmostly concerned about upholding their sterling image, not because I
am trying to start a flame war or engage in a sniper attack. If I had
sent email to a few key people there I would have gotten nowhere (as my
email actually proves). Here we have a *small personal forum* to
discuss this in *unemotional* terms. I raised it in that spirit and am
very disillusioned to see it all dragged through the gutter by many
respondents. People are reacting like I've said, There Is No Cypherpunk
Cause or Eric Hughes and T.C. May Are Traitors.

So, I'm quite relieved that D. Frissell has posted some cool comments
on case law and others who have focused on the issue of *operator
knowledge* related to the law, which was one of my chief concerns from
the beginning.

* * *

S. Steele <ssteele@eff.org>

>My warning to sysops simply said that these files were listed
>on a federal indictment, so the "lack of knowledge of the age of the
>depicted people" defense remains

The bulletin strongly suggests that the files constitute illegal child
pornography. therefore, that would imply to a sensible operator that
the age of the people pictured is not above that allowed for legal pornography.

The point of *requiring knowledge of age*, in my view, seems to be a
subset of a more important idea of *knowing the pictures violate the
law*. Knowing the age of the participants is *one* way that one might
know that the pictures violate the law. But one may come to that
conclusion otherwise. For example, learning that they are the target of
a federal investigation into child pornography would imply to a high
degree of probability they are `illegal'. Of course, I don't claim to
be a lawyer, and this is just one interpretation. perhaps it is
mistaken. feel free to correct and insult me at the same time (what fun
is it without both?).

* * *

I would like to say the following.  My analogy to the CERT warning that
appeared here seems to have completely escaped many, or perhaps
everyone is intentionally evading it. The metaphor is extremely
compelling. Both are sent to operators in order to bring something to
their attention they `might' need to fix by an outside party generally
interested in the operators own best interests. While I'm not sure that
what CERT did was apropos, that warning was so *delicately worded*. In
contrast the EFF announcement SHOUTS IN YOUR EAR. the CERT announcement
was extremely diplomatic. the EFF announcement was SCREECHING.

Do `we' have *any* consistency, sophistication, or coherence as a
group? Recent messages have DISMAYED me. is `our' philosophy nothing
but Beavis&Butthead style ``Gubberment and the Fedz and Pigs are THINGS
THAT SUCK and EFF is a THING THATS COOL.'' Or do `we' have no
philosophy at all? Are `we' just blind, crosseyed, and elitist
`codeheads' that char newbies for cruel sport? Is it better to just
ignore the `politics of cryptography' which coincidentally involves
things like what has been called the `Tim May .sig Agenda' because some
people might have strong opinions?

If `we' don't have our own house in order, `we' are nothing but LOUD
HYPOCRITES. If you don't clean your dirty laundry, IT STINKS.

Excuse me, but I think the press adores the Cypherpunk cause, and `we'
got press exposure such as the NYT and Wired article, because there
appears to be LEADERS and a DEFINITE POLITICAL AGENDA. It appears,
reading from those, that perhaps we even view the whole matter of free
cryptography use as a MORAL ISSUE, which of course would seem to imply
we possess some MORALITY to so claim. Oh yes, what was that
hand-wringing a few months ago on the list about the ``MOVEMENT
STALLING''? I wonder why! who posted that, anyway? I forget.

p.s. I dare someone to post that old CERT announcement sent to E.H.
that was posted here and caused such a noxious stink here. Look at how
gentle it really is. In fact, I would recommend that future
announcements of this sort look to it as a model. It clearly has been
finetuned past many revisions. As much as I hate to admit it, CERT has
a lot of expertise in dealing with this kind of thing. If anyone wants
to emulate them, don't reinvent the wheel.

p.p.s. go ahead, flame me into oblivion. ah, anonymously is even
better! from people we've never *heard* of before on the list! yes, 
let everone up to the top tell me what a jerk I am for caring. please
be as *emotional* as possible. defend the silly announcement or the
Cypherpunk Status Quo as if I had accused *you* of being a child
pornographer or traitor. Even better, banish me from the list for my
thoughtcrimes! Yes, cyberspatial hemlock is what I need right now.

LD:

[the comparison of EFF's note to CERT's, from L. Detweiler, that]
> appeared here seems to have completely escaped many, or perhaps
> everyone is intentionally evading it. The metaphor is extremely
> compelling. Both are sent to operators in order to bring something to
> their attention they `might' need to fix by an outside party generally
> interested in the operators own best interests. While I'm not sure that
> what CERT did was apropos, that warning was so *delicately worded*. In
> contrast the EFF announcement SHOUTS IN YOUR EAR. the CERT announcement
> was extremely diplomatic. the EFF announcement was SCREECHING.
> 
> Do `we' have *any* consistency, sophistication, or coherence as a
> group? Recent messages have DISMAYED me. is `our' philosophy nothing
> but Beavis&Butthead style ``Gubberment and the Fedz and Pigs are THINGS
> THAT SUCK and EFF is a THING THATS COOL.'' Or do `we' have no
[...]
> things like what has been called the `Tim May .sig Agenda' because some
> people might have strong opinions?

I won't speak for CPs at large on what is important to them, but I think
several things are a little off here.  To keep it short, and hopefully end
this marginal thread, the important difference between the "warnings" from
EFF and CERT [the old one, not the recent one about the security tester]
is INTENT.  CERT is not Officer Friendly.  They can sometimes be OK, but
the message in question was rather big brotherish.  Does anyone here
really WANT to have CERT telling you what they think you should do?  I don't.
The EFF on the other hand posted this material specifically to help people
AVOID being trapped in a situation that may result in prison terms.  The
other side of the fence entirely.  As I've explained to Lance in email,
it's like the difference between a cop saying "I don't think you should be
drinking", and a person warning their friend drinking in the park,"Better
ditch that beer, here come the cops."

That, and I really don't think that the TONE of "voice" of the messages in
question have anything whatsoever to do with their content. 

At any rate, I'd really like to just table this matter, it is getting
further and further afield.

-- 
Stanton McCandlish     Electronic Frontier Foundation Online Activist & SysOp
"A nation that is afraid to let its people judge the truth and falsehood of
ideas in an open market is a nation that is afraid of its people." -JFK
-=> mech@eff.org   NitV-DC  202-232-2715, Fido 1:109/? IndraNet 369:111/1

"L. Detweiler" writes:
 > For example, learning that they are the target of
 > a federal investigation into child pornography would imply to a high
 > degree of probability they are `illegal'. 

Seems to me it only implies that the files are central to a particular
investigation.  Unless you take the Ed Meese line that if you're a
suspect then ipso facto you're a criminal, the implication has no
legal weight (says this non-lawyer).

 >                                                While I'm not sure that
 > what CERT did was apropos, that warning was so *delicately worded*. In
 > contrast the EFF announcement SHOUTS IN YOUR EAR. the CERT announcement
 > was extremely diplomatic. the EFF announcement was SCREECHING.

Think of it this way.  If I'm tooling down the Interstate at 75 and my
passenger says

	Though ultimately you will have to make this decision for
	yourself, because in your capacity as driver of this motor
	vehicle you are solely responsible for adherence to state
	and local traffic ordinances, you should be aware that an
	official affiliated with a law enforcement organization is
	at this moment using a speed measurement device from his
	vehicle parked ahead of us behind a bush, and that there
	may be legal ramifications to his detection of your current
	speed.

I'd be like real pissed off while the ticket was being written.  If,
on the other hand, my companion said

	TROOPER! SLOW DOWN!

we'd probably make it to Stuckey's before they ran out of pecan log
roll.

--
Mike McNally

In message <9310131248.AA27665@vail.tivoli.com>, Mike McNally writes:
>Think of it this way.  If I'm tooling down the Interstate at 75 and my
>passenger says
>	Though ultimately you will have to make this decision for
>	yourself, because in your capacity as driver of this motor
>	vehicle you are solely responsible for adherence to state
>	and local traffic ordinances, you should be aware that an
>	official affiliated with a law enforcement organization is
>	at this moment using a speed measurement device from his
>	vehicle parked ahead of us behind a bush, and that there
>	may be legal ramifications to his detection of your current
>	speed.
>I'd be like real pissed off while the ticket was being written.  If,
>on the other hand, my companion said
>	TROOPER! SLOW DOWN!

A counter-example might be:
	1) Someone breaks down my door while I am eating. As per California law
there is a REBUTABLE PRESUMPTION (embedded in statutory law) that my life is
in danger and that deadly force is justified. Consequently, my response to the
situation is ruled justifiable homicide.
	2) Someone breaks down my door while I am eating. A feeble minded guest
of mine shouts out "I don't think he's armed." Consequently, the police find
that the man is either not armed or had a water pistol. I might do 5-10 for
manslaughter or 2nd degree murder.

Your example doesn't involve a law that requires knowledge or a state of mind
to be guilty. Laws about the transport of illegal information do!
--
  Edward Elhauge  |  "The only thing worse than being talked about
 Lever Industries |   is not being talked about."
   San Francisco  |              -- Oscar Wilde
   ee@lever.com   |