Re: Provider 1blu closed exit node torpaulianer

[Hannah Schroeter <hannah@xxxxxxxxxxxx>]

Hi!

On Sun, Dec 16, 2007 at 11:59:40PM +0100, Thomas Hluchnik wrote:
>I am not a lawyer but I think they have a contract with you. You paid them 
>money and they have to provide you a host. Very simple. If they shut down 
>your server without any comment they broke the contract. So you can go to 
>judge and force them to fulfill your contract. If they did not even tell you 
>why they shut it down any judge should be on your side (German: "Einstweilige 
>Verfügung")

"temporary injunction", I'd think, would be an English term.

I think, in theory you're right. In practise it'll not be worth the
monetary risks and the hassle. What you'd gain would be just a few weeks
(most provider contracts can be terminated without reason within a few
weeks notice, and *that* is perfectly legal).

>I think they try to go the way of least trouble. Hosting providers get lots of 
>trouble through the police. They just seize the complete servers for months 
>and force the providers to do lots of bureaucracy. This costs money. The 
>problem here is the police. They could make a copy of the hard drives, this 
>would be enough. But they take away the complete hardware. The Hosting 
>Providers think it would be too much trouble to to go to judge against that 
>behaviour. They think it is less trouble to just shutdown the customers host.

Now, the problem is that if the computer were *really* the instrument of
a crime, it could be permanently confiscated after conviction
(Einziehung/Verfall in German), and then the temporary confiscation
(Beschlagnahme) could be legal as preparation for the possible permanent
confiscation. And even if crimes committed via tor were not in the
responsibility of the exit node operator, it's a valid reasoning that
the crime could be committed by the operator from the same computer
using software *separate* from tor, using tor only as an excuse.

The question remains, is the suspicion strong enough for *that* case?
I.e. for a crime where the server operator would be really responsible
for, *and* for which a permanent confiscation would be probable in the
end (if the latter were not the case, yes, they should make a forensic
disc image and then return the server).

>It is a question of pressure. Who makes more pressure? The customer or the 
>police? If you force them to fulfill their contract they might start thinking 
>about going to judge preventing police to seize a complete server.

As said, the difference would probably only be a few weeks, or paying
back those few weeks of the server rental fee as damage for the
premature termination of service. So even then, it'd perhaps be more
economic the the providers to terminate the service. Or to terminate it
*with* prior notice as stated in the contracts. And then there'd be no
legal pressure. And to include anti-tor (and whatever) clauses in future
contracts (which would make termination *without* advance notice legal
for running tor etc. in future).

>Thomas

Kind regards,

Hannah.