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From: franka@hercules.UUCP (Frank Adrian)
Newsgroups: net.news
Subject: legalities
Message-ID: <392@hercules.UUCP>
Date: Wed, 16-Jan-85 20:50:30 EST
Article-I.D.: hercules.392
Posted: Wed Jan 16 20:50:30 1985
Date-Received: Fri, 18-Jan-85 10:27:04 EST
Organization: Tektronix, Beaverton OR
Lines: 72


	Over the past few weeks, people on this newsgroup have been using
probability of lawsuit as a reason why the net should be moderated.  I 
hope they don't get a false sense of security from this.  There are several
points at which a moderated net can be attacked legally more easily than an
bulletin board type system.

	1) Assumption of Responsibility
	If the network is unmoderated, the only certain legal point of attack
is the submitter (remember, I said CERTAIN).  In any case where the submitter
is known, the onus of the posting would be most likely to fall on him.  If
unauthorized or disguised access is used, the most likely court outcome is that
the STARGATE carrier would be treated as a common carrier whose medium had
been tapped into.  If the STARGATE carrier had made a reasonable attempt to
locate the unauthorized user, no penalty is likely to be assessed (again, I
said LIKELY. As with all things, laws are in the eyes of the beholders (or
whichever judge you happen to draw)).
	On the other hand, with a moderated system, the moderator (and by
default, the carrier) would seem to assume responsibility, along with the
submitter, for any and all materials posted to the system, much in the same
way that the publisher and editor of a magazine can be sued.  This is much
less of a legal gray area than the above.  If somebody doesn't like what you
said, you have assumed responsibility due to the restriction on submission and
they can sue you to the max.
	The question is, then, if you can minimize the possibility of
lawsuit (both real and nuisance) under the moderated or unmoderated scheme.
On the moderated scheme, you have a much lower chance of posting offensive
material, but a much higher chance that you would be held responsible for
the contents of all articles.  In the unmoderated scheme, you have the
opposite situation.

	2) Fairness of Moderation
	If submission rules are to be applied to newsgroups, they must be
applied fairly to all.  E.g., Jeff Sargent could claim discrimination if
the moderator of mod.singles didn't want to hear his maunderings this week.
The guidelines cannot be arbitrary.  There must be substantial reasons to
impose a rule.  If either of these criteria are not followed, it would seem
that a lawsuit could result.  This is only a problem on the moderated system.
An unmoderated system would have no such trouble.

	3) Fairness of Access
	Creation of new groups also must be standardized.  A small number of
network administrators could be sued if they blocked creation of a new news-
group.  Think of each group analogous to a magazine, with the moderators as
editors.  There is nothing to stop an editor from keeping a given article
from seeing the light of day.  But it is illegal for a group of editors to
stop a new magazine from being published. Again, with no moderation, anyone
could start a new group. No hassle.

	4) Selection of Administrators
	No company signs contracts or agreements to enter onto the USENET
at this time.  The policy is find a feed and get on.  If there were to be
administrators, there would have to be equality between the administrators
and each site would have to have rights to choose these people.  If any
site felt they were being treated unfairly they could possibly sue. Again,
no moderation, everyone gets his say and there is no case for lawsuit.

	5) Enter the Feds
	By using a type of channel which is very tight in usage these days
(satellite vs. phone lines), you bring the FCC into all of this.  Can a site
go to the FCC if it feels it is discriminated against in some way? In any
case, if there is no moderation, all of this type of problem goes away.

	Well, anyway, these are five things that I thought of right off the
top of my head.  From a legal standpoint I think that the possibility of each
happening goes down as we go from 1 to 5.  These are, of course, possibilities
only.  However, I think I have shown (since none of these points have been
tested in a court of law) that, legally, we could be in as much, if not more,
trouble with a moderated network as with an unmoderated network and that those
who hide behind legal issues in their attempt to censor articles are just
blowing smoke.  Any comments?
						Frank Adrian