Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: version B 2.10.2 (Tek) 9/28/84 based on 9/17/84; site hercules.UUCP Path: utzoo!watmath!clyde!burl!ulysses!allegra!mit-eddie!godot!harvard!seismo!harpo!decvax!tektronix!teklds!hercules!franka 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