Re: Tolerance (fwd)

Hi all,

Because none of these issues have ever been tested in a court of law any
comments I or any other person makes (even if a lawyer) is simply personal
opinion. To find out what is 'really' going on we will have to simply wait
for that first case.

Forwarded message:

> Date: Fri, 2 Aug 1996 22:28:37 -0700 (PDT)
> From: Sandy Sandfort <sandfort@crl.com>
> Subject: Re: Tolerance (fwd)
> 
> A.  Where does Jim get the terms of the contract he implies from
>     the simple word "public"?  As far as I can see, he simply made
>     it up from whole cloth.  Interesting, but totally without any
>     legal basis.

Public - 

of or pertaining to the people; not private or secret; open to general use;
accessible to all; serving the people. Community or its members; a section
of community. Making known to the public; proclamation; printing in a book,
etc. for sale or distribution. To make widely known; to advertise. The state
of being generaly known; notoriety; advertisement.

I first learned about the cpunks list in Mondo 2000 several years ago not
long after I got PGP 1.0 off Adelante BBS in Co. Wasn't Eric's girlfriend
involved in Mondo 2000? (Hi Jude, I think we will have a RoboFest this year
in Austin, as always you are invited) Which would indicate a certain level of
premeditation regarding letting people know of the list. I think that qualifies
as public, I also think a court would accept that argument. The bottem line is
that the list operator crossed that line whether they were aware of it or not.
If they feel uncomfortable with this then they should consider very strongly
dropping the list or enacting some form of registration more preferential
than majordomo's subscribe system. This registration should clearly define
what is and is not allowed on this list.

> B.  I'm unaware that the Cypherpunks list has ever been advertised
>     as "public" by the list owner.

It has appeared in many publications which are intended for general or
'public' distribution in every one of those publications it was made clear
that anyone was welcome and the subscription address was provided. The list
operators ignorance of the consequences of their actions in no way alleviates
them of the consequences of those actions.

> C.  Combining A & B, I know of know instance where the owners of
>     the Cypherpunks list ever made any indication that they were
>     adhearing to the Byzantine interpretation of contract law as
>     suggested by Jim.  (It sure doesn't comport to what I learned
>     in my Contracts classes.)

It isn't my interpretation. Perhaps you should have paid better attention in
class. These issues have never been tested in a court of law in the US in
regards to computer networks and their special nature.

> > > A restaurant or bookstore is a public place in that it is open
> > > to the public.
> > 
> > I know of no state in the union where a bookstore, restaurant,
> > mall, etc. is considered public.
> 
> Actually, it's the law in ALL states in the union since the Public 
> Accomidations Act was enacted some time in the '60s (with the
> possible exception of Texas, I guess).

Not in Texas. We recently passed a law (Jan. 8) which permits citizens legaly
registered to carry concealed weapons. Because the way the law was worded it
was made clear in many newspapers and such that the ONLY way that business
could prohibit patrons from entering their premises with those weapons was
because they were PRIVATE property and therefore excluded from the
constraints of the law. [When I worked at UT the rationale that was used to
throw the dumpster divers off campus was that even though it was a publicly
funded school by taxes it was private property (didn't make sense to  me
then or now). I can also state unequivacly that if the UTPD catch you on
campus after 10pm or before 6AM w/o proof of either being a current student
or staff consider it a graceful and considerate officer if they only escort
you off campus.] Even now there is a big discussion here over whether
this is realy a strong enough distinction. It is only a matter of time
before a case comes up here to test even this limitation of private
ownership (which I happen to support, a person with a gun on my private
property is definately subject to my desires and wants, they represent a
clear and present danger. If they don't then why do they need to register
the weapons and why are they classed 'deadly weapons'?). The really sad part
is that it will probably be another one of those shoot outs at Wendy's in
Waco or some such nonesense as some loony toon goes postal. I wonder if that
was what Jeffeson meant about watering the tree of liberty with blood? If my
business property is really public simply because I am open to the public
then I feel the police have a responsibility to provide an officer on my
premises for whatever hours I am open for business to protect me, my property, and my
patrons just like they do at the courthouse, tax accessors office, etc. They
also have a responsibility to help assist in the operation and funding of my
business (something I oppose strongly) since they have now found my business
to be public; as a matter of fact they can help pay my damn taxes.

For the record Florida and every other state with 'Right To Carry' laws
looks at it this way. It is the only way under the current statutes to
allow businesses to control access by gun toting folks.

Now there is one caveat that most of you will have caught. That is the
definitions of public above. In short, we have a circular argument as the law
is worded now. Logicaly the courts have two recourses. They can first
declare that no agency has the right to regulate gun ownership and
possession (what I want to see) or else regardless of the 2nd, nobody has
the right to carry a weapon on their person in public, since police are not
awarded special consideration from constitutional law this would mean they
could not carry a weapon on their side in public. So the courts eventualy
must either refuse to review the case or else they must make some major
change in the current law which goes against the government either way.
Either everyone gets to wear weapons or nobody including the police get to
carry them. Either way with the last two the police are in a situation where
they are less likely to employ force for enforcement since they are no longer
the strong side in the 'discussion'.

> > Legaly a public place is someplace which is operated using
> > public monies.
> 
> Like the Cypherpunks list?  Citation, please.

The Cpunks list isn't a place. It is a steam of characters. Does the list
reside on my computer? It does at least to some degree since I obviously
have access to discuss these issues with you. It also resides on your
computer as well as the thousand or so subscribers. It resides at least in
part on the screen of my crt, the RAM in my computer, the network cable, the 
ISDN line, my providers router, my brain, the EM emission of the computer,
etc. ad nauseum. So there is no single 'place' where the list resides, any
more than a single place that an idea resides. This whole issue is the reason
that I contend that eventualy it will be seen clearly that postings on usenet,
public accessible mailing lists, irc channels, etc. are actualy automaticaly
public domain in regards to their content. At some point I feel that it will
turn out that unless you encrypt your data or place copyright symbols on it
with special, and likely convoluted, riders allowing various distributions
and storing via computer networks the author of computer text such as this
will grant all rights and privileges to the work to the public automaticaly.
This belief is the reason that I am interested in crypto, outside the simple
curiosity I have about nature.

I don't believe the cpunks list has ever been involved in a legal case. As a
matter of fact this issue has never been tested in a court of law. Perhaps
we should look at forcing a case. The best strategy would be for Eric to
throw somebody off the list sureptitously (sp? I put the dictionaries back and
I ain't walking over there again...sorry) and then for that person to bring
a civil suit alleging infringement of civil liberties (ie equal access under
the law). Eric would claim the list is private while the expunged user would
claim it was public. We would of course have to resolve the cost issue first.
I have two lawyers on retainer for my businesses but I don't believe either
would touch a non-commerical case like this would be and I don't have
anywhere near the personal capital to finance it myself. As a added bonus we
could pick a handicapped person and they could sue under the various laws
relating to those issues as well. This would get the whole issue of
handicapped access to computer technology to be explored. Currently the
handicapped (eg blind) find GUI interfaces nearly unusable. It would be
pretty weird (to me) to see court rule that every os and software
manufacturer must provide a CLI interface to their products because of the
new equal access laws regarding handicapped individuals.

> The problem with Jim is not that he doesn't know anything, but
> rather that he knows so many things that aren't true.  (But I
> would not favor enforcing the state granted monopoly on the
> practice of law if Jim wants to hang out his shingle.  If he can
> get someone to pay him for legal advice, more power to him, but 
> /caveat emptor/.)

That is a two edged sword. Where did you get your law degree? My lawyers
both got theirs at UT Austin Law School. Both are federal lawyers and both
have argued before the Supreme and are currently allowed to argue before the
Supremes.

The bottem line is that this whole issue is so full of circular arguments
and contrary views it may take quite a few years to work out something that
makes any kind of sense at all, if ever. Course by then we will have a whole
new generatio of technology to argue over.

Take care all, and watch your sixes.

                                                     Jim Choate

On Sat, 3 Aug 1996, Jim Choate wrote:

> 
> It isn't my interpretation. Perhaps you should have paid better attention in
> class. These issues have never been tested in a court of law in the US in
> regards to computer networks and their special nature.

[...]

> That is a two edged sword. Where did you get your law degree? My lawyers
> both got theirs at UT Austin Law School. Both are federal lawyers and both
> have argued before the Supreme and are currently allowed to argue before the
> Supremes.


I've deleted most of Jim's meanderings above, mostly because I'm 
fascinated by the credentialism in the graf above.

He implies, without directly saying so, that "his lawyers" have weighed 
in on this dispute and agree with him. Of course this is hardly likely; 
he advances no coherent legal theory. (Except the "public forum" 
argument, which might apply to Usenet, but not cypherpunks.)

This is attempted proof by credentalism. I call him on it. 

Okay, Jim, what _do_ your lawyers say on this? Have you asked them? I,
too, have an attorney, a civil liberties specialist and a graduate from
Princeton law. So what? 

-Declan



// declan@eff.org // I do not represent the EFF // declan@well.com //

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                          SANDY SANDFORT
 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

C'punks,

On Sat, 3 Aug 1996, Jim Choate's dog wrote:

> Because none of these issues have ever been tested in a court
> of law...

Wrong.  Most, if not all of them have.

> ...any comments I or any other person makes (even if a lawyer)
> is simply personal opinion.

In other words, Jim thinks his legal opinion is just as good as
anyone else's.  A nice eqalitarian sentiment, but obviously
unfounded.  There is such a thing as an educated opinion, as
there are also pig ignorant opinions.

> > A.  Where does Jim get the terms of the contract he implies from
> >     the simple word "public"?...

> Public - 
> 
> of or pertaining to the people; not private...yada yada yada.

Jim thinks a dictionary definition of "private" are terms of a
contract.  Interesting.

> I first learned about the cpunks list in Mondo 2000 several
> years ago not long after I got PGP 1.0...

But, Jude was not and is not an owner of the Cypherpunks list.
Whatever she wrote (and I don't have that issue before me) in
no way binds the owner even if there were some validity to Jim's
fanciful claims about the legal requirements on "public" lists.

> I also think a court would accept that argument.

That and US$1.25 will get you coffee at the Top of the Mark.

> > B.  I'm unaware that the Cypherpunks list has ever been advertised
> >     as "public" by the list owner.  (emphasis added)
>                   ^^^^^^^^^^^^^^^^^ 
> It has appeared in many publications which are intended for
> general or 'public' distribution in every one of those
> publications it was made clear that anyone was welcome and the
> subscription address was provided.

Jim apparently thinks a person can be bound by the opinions 
expressed in a "public" forum by a third party.  Okay, in this
public forum I publically state that people (such as Jim) who 
post really dumb, psuedo-legalistic posts have to pay each list
member a buck for spamming.

> The list operators ignorance of the consequences of their
> actions...

What actions?

> in no way alleviates them of the consequences of those actions.

Mock legalese in no way alleviates Jim from the consequences
of making uneducated legal pronouncements in front of God and
everybody.

> It isn't my interpretation.

Whose interpretation is it then.  Is Jim disavowing his own
pronouncement?

> ... These issues have never been tested in a court of law in
> the US in regards to computer networks and their special
> nature.

Maybe because the issues of "public" (which Jim tells us, below,
is" a public place is someplace which is operated using public 
monies") lists do not require resorting to any "special nature" 
of computer networks and can simply be addressed by pre-existing 
legal princples covering run-of-the-mill membership organizations.

> > > > A restaurant or bookstore is a public place in that it is open
> > > > to the public.
> > > 
> > > I know of no state in the union where a bookstore, restaurant,
> > > mall, etc. is considered public.
> > 
> > Actually, it's the law in ALL states in the union since the Public 
> > Accomidations Act was enacted...

> Not in Texas. We recently passed a law (Jan. 8) which permits citizens legaly
> registered to carry concealed weapons. Because the way the law was worded it
> was made clear in many newspapers and such that the ONLY way that business
> could prohibit patrons from entering their premises with those weapons was
> because they were PRIVATE property and therefore excluded from the
> constraints of the law.

Jim does not seem to understand that the Public Accomidation Act 
is applied PRIMARILY to private property.  It is his loony-toon
sea-lawyer concepts of "public," as in public list, that are the
cause of his total misunderstanding of the legal issues here.

> [Interesting but irrelevant gun law lore elided]
> 
> Now there is one caveat that most of you will have caught. That
> is the definitions of public above. In short, we have a circular
> argument as the law is worded now. 

Duh.

> > > Legaly a public place is someplace which is operated using
> > > public monies.
> > 
> > Like the Cypherpunks list?  Citation, please.
> 
> The Cpunks list isn't a place. It is a steam of characters.

First, where is Jim's citation with regard to the definition of
a public place?  I'd like to see him support just one of his
outrages legal claims with at least a scintilla of evidence.

Second, what legal evidence does Jim have that the sender of a
stream of characters (i.e., the provider of a service--free in
this case) is under any obligation to continue to provide a forum
for people he no longer wishes to provide said forum?  

This is the crux of the issue.  Jim can get into all the side
issues he wants about gun laws and whether his dog should vote.
The question before us is, may those who run the Cypherpunks list
have the right arbitrarily throw someone off the list, even though
it be advertised as "public"?  Clearly people have been thrown off
such public lists (including, I believe, Cypherpunks).  Nothing
happened.  If Jim believes the outcome should have been otherwise,
he has the burden of proof of explaining why.  He may, of course,
again offer his odd legal opinions, uncontaminated by actual
legal knowledge, but actual recourse to the law would be a lot
more convincing.

Of course, if Jim actually comes up with something better than
his opinions, I'll be ready to address such arguments.

> ...My lawyers both got theirs at UT Austin Law School. Both are
> federal lawyers and both have argued before the Supreme and are
> currently allowed to argue before the Supremes.

Cool.  Please have them post something on this thread.  I'd love
to see their analysis of "public" list liability.


 S a n d y

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