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#include "head.wmi" TITLE="Response template for Tor server operator to ISP"
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<h2>Response template for Tor node maintainer to ISP</h2>
<hr />
<p>Written by the Electronic Frontier
Foundation (<a href="http://www.eff.org/";>EFF</a>). Last updated 19 Feb 2005.</p>
<p>Note to Tor server operators: In this litigous era, anyone
providing routing services may face copyright complaints under the
Digital Millennium Copyright Act. Thankfully, the DMCA safe harbors
provide immunity from many of them -- both to you and to your
upstream provider. If your Internet host forwards a DMCA complaint
to you, here's a template you can use to write a response. You can
tailor this to your own circumstances: if you think your host would
be disturbed to hear you're running a server on the network, you may
want to take that part out. Of course it's up to you to comply with
your ISP's terms of service. If you're not comfortable including so
much legal explanation, feel free to invite the ISP to contact EFF
for a fuller discussion.</p>
<p>This template letter is for informational purposes only and does not
constitute legal advice. Whether and how you should respond when you or
your ISP has received a DMCA notice will turn on the particular facts
of your situation. This template is intended as a starting point. Before
sending any response to your ISP, you may want to seek the advice of an
attorney licensed to practice in your jurisdiction.</p>
<p>Also, if you received this document from anywhere besides <a
href="http://tor.eff.org/eff/tor-dmca-response.html";>http://tor.eff.org/eff/tor-dmca-response.html</a>,
it may be out of date. Follow the link to get the latest version.</p>
<hr />
<p>Dear [ISP]:</p>
<p>Thank you for forwarding me the notice you received from [copyright
claimant] regarding [content]. I would like to assure you that,
contrary to the assertions in the notice, 1) I am not hosting or
making available the claimed infringing materials, and 2) you are
already protected by the Digital Millennium Copyright Act's ("DMCA")
safe harbor from any liability arising from this complaint. The
notice is incorrect, probably based upon misunderstandings about law
and about some of the software I run.
</p>
<p>
First, in terms of legal liability, this notice does not create any
risk for you as a service provider. As you know, the DMCA creates
four "safe harbors" for service providers to protect them from
copyright liability for the acts of their users, when the ISPs
fulfill certain requirements. (17 U.S.C. § 512) The DMCA's
requirements vary depending on the ISP's role. You may be most
familiar with the "notice and takedown" provisions of DMCA 512(c),
but those apply only to content hosted on your servers, or to linking
and caching activity. The "takedown notice" provisions do not apply
when an ISP merely acts as a conduit. Instead, the "conduit" safe
harbor of DMCA 512(a) has different and less burdensome requirements,
as the D.C. Circuit Court of Appeals held in RIAA v. Verizon (see
<a href="http://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf";>http://www.eff.org/legal/cases/RIAA_v_Verizon/opinion-20031219.pdf</a>)
and the Eighth Circuit Court of Appeals confirmed in RIAA v. Charter
(see <a href="http://www.eff.org/IP/P2P/Charter/033802P.pdf";>http://www.eff.org/IP/P2P/Charter/033802P.pdf</a>).
</p>
<p>
Here, any content that came from or through my computers merely
passed through your network, so DMCA 512(a) applies. Under DMCA
512(a), you are immune from money damages for copyright infringement
claims if you maintain "a policy that provides for termination in
appropriate circumstances of subscribers and account holders of the
service provider's system or network who are repeat infringers." If
you have and implement such a policy, you are free from fear of
copyright damages, period.
</p>
<p>
As for what makes a reasonable policy, as the law says, it's one that
only terminates subscribers who are repeat infringers. A notice
claiming infringement is not the same as a determination of
infringement. The notification you received is not proof of any
copyright infringement, and it certainly is not proof of the "repeat
infringement" that is required under the law before you need to
terminate my account. I have not infringed any copyrights and do not
intend to do so. Therefore, you continue to be protected under the
DMCA 512(a) safe harbor, without taking any further action.
</p>
<p>
You might be curious, though, about what did trigger the notice. The
software that likely triggered the faulty notice is a program I run
called Tor. Tor is network software that helps users to enhance
their privacy, security, and safety online. It does not host or make
available any content. Rather, it is part of a network of nodes on
the Internet that simply pass packets among themselves before sending
them to their destinations, just as any Internet host does. The
difference is that Tor tunnels the connections such that no hop can
learn both the source and destination of the packets, giving users
protection from nefarious snooping on network traffic. Tor protects
users against hazards such as harassment, spam, and identity theft.
In fact, initial development of Tor, including deployment of a
public-use Tor network, was a project of the U.S. Naval Research
Laboratory, with funding from ONR and DARPA. (For more on Tor,
see <a href="http://tor.eff.org/";>http://tor.eff.org/</a>.) As an
organization committed to
protecting the privacy of its customers, I hope you'll agree that
this is a valuable technology.
</p>
<p>
Thank you for working with me on this matter. As a loyal subscriber,
I appreciate your notifying me of this issue and hope that the
complete protections of DMCA 512 put any concerns you may have at
rest. If not, please contact me with any further questions.
</p>
<p>
Very truly yours,<br />
Your customer, [User]
</p>
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#include "head.wmi" TITLE="Legal FAQ for Tor Server Operators"
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<h2>Legal FAQ for Tor Server Operators</h2>
<hr />
<p>FAQ written by the Electronic Frontier
Foundation (<a href="http://www.eff.org/";>EFF</a>). Last updated 25 Apr 2005.</p>
<p><strong>NOTE:</strong> This FAQ is for informational purposes only
and does not constitute legal advice. EFF has not analyzed any
particular factual situation or laws in drafting this FAQ. Our aim is
to provide a general description of the legal issues surrounding
Tor. Different factual situations and different legal jurisdictions will
result in different answers to a number of questions. Therefore, please
do not act on this information alone; if you have any
specific legal problems, issues, or questions, seek a complete review of
your situation with a lawyer licensed to practice in your jurisdiction.
</p>
<p>Also, if you received this document from anywhere besides <a
href="http://tor.eff.org/eff/tor-legal-faq.html";>http://tor.eff.org/eff/tor-legal-faq.html</a>,
it may be out of date. Follow the link to get the latest version.</p>
<hr />
<a id="Lawsuits"></a>
<h3><a class="anchor" href="#Lawsuits">Has anyone ever been sued for running Tor?
</a></h3>
<p><strong>No.</strong> Further, we believe that running a Tor node,
including a Tor exit node that allows people to anonymously send and
receive traffic, is lawful under U.S. law.</p>
<a id="IllegalPurposes"></a>
<h3><a class="anchor" href="#IllegalPurposes">Should I use Tor,
or encourage the use of Tor, for illegal purposes
such as spamming, harassment, distribution of child porn, or copyright
infringement?</a></h3>
<p><strong>No.</strong> Tor has been developed to be a tool for free
speech, privacy, and human rights. It is not a tool designed or intended
to be used to break the law, either by Tor users or Tor server
operators.</p>
<p>We further recommend that you not keep any potentially illegal files
on the same machine you use for Tor, nor use that machine for any illegal
purpose. Although no Tor server has ever been seized, nor any server
operator subpoenaed, the future possibility cannot be ruled out. If that
happens, you will want your machine to be clean.</p>
<a id="Promise"></a>
<h3><a class="anchor" href="#Promise">Can EFF promise that I won't get
in trouble for running a Tor server?</a></h3>
<p><strong>No.</strong> All new technologies create legal uncertainties,
and Tor is no exception to the rule. Presently, no court has ever considered any
case involving the Tor technology, and we therefore cannot guarantee
that you will never face any legal liability as a result of running a
Tor server. However, EFF believes so strongly that those running Tor
servers shouldn't be liable for traffic that passes through the server
that we're running our own Tor server.
</p>
<a id="Represent"></a>
<h3><a class="anchor" href="#Represent">Will EFF represent me if I get
in trouble for running a Tor server?</a></h3>
<p><strong>Maybe.</strong> While EFF cannot promise legal representation
of all Tor server operators, it will assist server operators in
assessing the situation and will try to locate qualified legal counsel
when necessary. Inquiries to EFF for the purpose of securing legal
representation or referrals should be directed to staff attorney Kevin
Bankston (bankston at eff.org or US +1 (415) 436-9333 x 126). Such
inquiries will be kept
confidential subject to the limits of the attorney/client privilege.
Note that although EFF cannot practice law outside of the U.S., it will
still try to assist non-U.S. server operators in finding local
representation.</p>
<a id="DevelopersAreNotLawyers"></a>
<h3><a class="anchor" href="#DevelopersAreNotLawyers">Should I contact
the Tor developers when I have legal questions about Tor or to inform
them if I suspect Tor is being used for illegal purposes?</a></h3>
<p><strong>No.</strong> Tor's core developers, Roger Dingledine
and Nick Mathewson, are available to answer technical questions, but
they are not lawyers and cannot give legal advice. Nor do they have any
ability to prevent illegal activity that may occur through Tor servers.
Furthermore, your communications with Tor's core developers are
not protected by any legal privilege, so law enforcement or civil
litigants could subpoena and obtain any information you give to
them.</p>
<a id="RequestForLogs"></a>
<h3><a class="anchor" href="#RequestForLogs">If I receive a request from
law enforcement or anyone else for my Tor server's logs, what should
I do?</a></h3>
<p><strong>Educate them about Tor.</strong> In most instances, properly
configured Tor servers will have no useful data for inquiring parties,
and you should feel free to educate them on this point. To the extent
you do maintain logs, however, you should not disclose them to any third
party without first consulting a lawyer. In the U.S., such a disclosure
may violate the Electronic Communications Privacy Act, and server
operators outside of the U.S. may be subject to similar data protection
laws.</p>
<p>You may receive legal inquiries where you are prohibited by law from
telling anyone about the request. We believe that, at least in the
U.S., such gag orders do not prevent you from talking to a lawyer,
including calling a lawyer to find representation. Inquiries to EFF for
the purpose of securing legal representation should be directed to staff
attorney Kevin Bankston (bankston at eff.org or US +1 (415) 436-9333
x126). Such inquiries
will be kept confidential subject to the limits of the attorney/client
privilege.</p>
<p>EFF is currently working on informational materials to help you
respond to the most likely types of legal requests or notices, so watch
this space.</p>
<a id="DMCA"></a>
<h3><a class="anchor" href="#DMCA">My ISP/University/etc just sent me
a DMCA notice. What should I do?</a></h3>
<p>The EFF has written a <a
href="tor-dmca-response.html">short template</a>
to help you write a response to your ISP/University/etc, to let them
know about the details of DMCA safe harbor, and how Tor fits in. Note
that this only refers to a U.S. jurisdiction.</p>
<p>If you like, you should consider submitting a copy of your notice
to <a href="http://www.chillingeffects.org/";>Chilling Effects</a>. This
will help us recognize trends and issues that the lawyers might want to
focus on. Chilling Effects encourages submissions from people outside
the United States too.</p>
<p>EFF is actively seeking Tor server operators willing to stand up
and help set a clear legal precedent establishing that merely running
a node does not create copyright liability for either node operators
or their bandwidth providers. If you want to be the EFF's test case,
<a href="http://archives.seul.org/or/talk/Oct-2005/msg00208.html";>read
more here</a>.</p>
<a id="ExitSnooping"></a>
<h3><a class="anchor" href="#ExitSnooping">Should I snoop on the plaintext
that exits through my Tor server?</a></h3>
<p><strong>No.</strong> You are technically capable of monitoring or
logging plaintext that exits your node if you modify the Tor source
code or install additional software to enable such snooping. However,
Tor server operators in the U.S. can create legal and possibly even
criminal liability for themselves under state or federal wiretap laws if
they affirmatively monitor, log, or disclose Tor users'
communications, while non-U.S. operators may be subject to similar laws.
Do not examine the contents of anyone's communications without
first talking to a lawyer.</p>
<a id="DirectoryWarranty"></a>
<h3><a class="anchor" href="#DirectoryWarranty">Do Tor's core developers
make any promises about the trustworthiness or reliability of Tor servers
that are listed in their directory?</a></h3>
<p><strong>No.</strong> Although the developers attempt to verify that
Tor servers listed in the directory the core developers maintain are
stable and have adequate bandwidth, neither they nor EFF can guarantee
the personal trustworthiness or reliability of the individuals who run
those servers. Tor's core developers further reserve the right to
refuse a Tor server operator's request to be listed in their
directory or to remove any server from their directory for any
reason.</p>
<a id="License"></a>
<h3><a class="anchor" href="#License">Is the Tor software subject to
any license terms?</a></h3>
<p><strong>Yes.</strong> The Tor license is included in the software
download and reproduced below:</p>
<p>Copyright (c) 2001-2006 Roger Dingledine<br />
Copyright (c) 2004-2006 Nick Mathewson</p>
<p>Redistribution and use in source and binary forms, with or without
modification, are permitted provided that the following conditions are
met:</p>
<ul>
<li>Redistributions of source code must retain the above copyright
notice, this list of conditions and the following disclaimer.</li>
<li>Redistributions in binary form must reproduce the above copyright
notice, this list of conditions and the following disclaimer in the
documentation and/or other materials provided with the
distribution.</li>
<li>Neither the names of the copyright owners nor the names of its
contributors may be used to endorse or promote products derived from
this software without specific prior written permission.</li>
</ul>
<p>THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS
"AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE
COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT
NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF
USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF
THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.</p>
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