Re: Are Remailers Liable for What They Remail?

At 10:45 AM 8/11/94 -0600, Patrick Juola wrote:
>  

>My understanding is that, legally speaking, "considering [oneself]
>to be a common carrier" amounts to exactly nil -- that it requires
>a special act of some governing body to declare you to be a common
>carrier.   One might just as well consider oneself to be an
>accredited diplomat and therefore to have diplomatic immunity.
>
>Any of the real lawyers on the net care to comment?
>
>	kitten
>

Ah, the eternal Common Carrier debate.  The answer is the same as the last
few times.  "Common Carrier" status has little to do with exemption from
liability.  It has most to do with being unable to reject passengers, goods,
or phone calls.

The EFF would like the NII to be a common carrier so that 'the poor' could
get 'free' connections, most of the libertarians here would not.

Plenty of non-common carrier entities are immune from prosecution for ideas
that they unkowingly communicate -- bookstores for example (unless they are
*knowingly* porno bookstores in the wrong jurisdiction).  Compuserve was
held not liable for an (alleged) libel by one of its sysops.  Not because of
coomon carrier but because they had no knowledge or control.

Remailers have no knowledge or control hence no scienter (guilty knowledge)
hence no liability as a matter of law -- not a jury question BTW.

DCF

"Where is telecoms regulation when anyone can be a phone company?  Where is
banking regulation when anyone can be a bank?"

Duncan Frissell writes
> 
> Remailers have no knowledge or control hence no scienter (guilty knowledge)
> hence no liability as a matter of law -- not a jury question BTW.
> 
	But is it not true that the state can simply decide that
anonymous remailers are a nuisance and a tool of criminals and pass laws
making remailer operators liable or outlawing remailers entirely ?
Considering the things that have been outlawed for flimsy reasons in the
US recently (eg assault weapons, some kinds of scanners) I find it nieve
to presume that anonymous remailers will remain legal.  They are just
too much of a temptation to libelers and slanderers, software pirates,
information thieves, blackmailers, extortionists, tax evaders etc.  And
their perceived positive uses so weak by comparision that I predict that
within a very few years providing an anonymous mail service will either
be strictly illegal or require logging of user ID's and screening of
traffic for legality. 

	Wait and see ...

						Dave Emery