Re: [tor-talk] William was raided for running a Tor exit node. Please help if you can.

[Eugen Leitl <eugen@xxxxxxxxx>]

----- Forwarded message from "Michael Froomkin - U.Miami School of Law" <froomkin@xxxxxxxxxxxxx> -----

From: "Michael Froomkin - U.Miami School of Law" <froomkin@xxxxxxxxxxxxx>
Date: Thu, 29 Nov 2012 19:29:09 -0500 (EST)
To: Miles Fidelman <mfidelman@xxxxxxxxxxxxxxxx>
Cc: NANOG <nanog@xxxxxxxxx>
Subject: Re: William was raided for running a Tor exit node. Please help if
	you can.
User-Agent: Alpine 2.00 (LRH 1167 2008-08-23)
Reply-To: froomkin@xxxxxx

Comments deep below.

On Thu, 29 Nov 2012, Miles Fidelman wrote:

> Michael Froomkin - U.Miami School of Law wrote:
>>
>> >  2. If I provide access to four or five friends, I am not an ISP and in
>> >  fact I am responsible if they use my connection to do something illegal
>> >  since I am the customer of record.  If you loan your car to an
>> >  unlicensed driver and he kills someone, you are on the hook.
>> > 
>>
>>  The key word above is "unlicensed".  And the other key word -- not present
>>  -- is "knowingly".  But the analogy breaks down because you don't need a
>>  license to use the Internet.  Consequently, in most cases you will not
>>  know, and cannot reasonably be expected to know, about legal violations.
>>  If you let your buddy use your home wireless while he's staying with you
>>  for the weekend, and he commits, say, a fraud, or blackmails someone, you
>>  are not legally responsible for any of it unless you participated
>>  knowingly in some way.  Of course, that you didn't know may be hard and
>>  expensive and unpleasant to try to prove, but that's a different question.
>
> Ummm... you might be liable under your service agreement with your ISP.  
> Most of these have all kinds of restrictive clauses re. not letting 
> others use your connection, copyright infringement, assumption of 
> liability, yada, yada, yada.  We all violate these, all the time, but 
> there are times when that might catch up with someone.

OK, you might have *contract* liability to the ISP, but not to third  
parities in the main.  Contract damages < tort damages < criminal  
penalties, the latter being what we were talking about).

The only attempt I know of to make violation of those contract terms the  
predicate for criminal liability failed.  Google "Lori Drew".

>>
>>  The term "criminally negligent" really has no role here. Negligence is in
>>  most cases a civil not a criminal offense.  There are specific crimes.
>>  There is aiding and abetting.  There may be criminal negligence in
>>  unrelated cases where you have a duty to secure something or protect (or
>>  not harm) someone and fail to do so (e.g. you leave your car in a position
>>  to roll downhill and it hurts someone, or you are willfully blind to a
>>  danger to child for whom you should be caring, or you act with such
>>  inattention so as to kill someone).  But in the USA ***you have no legal
>>  duty to secure your wireless***.  None.  You can leave it open, just as
>>  you can leave your window open and let people enjoy what you are playing
>>  on your stereo (modulo public nuisance law, and copyright rules against
>>  some types of unlicensed public performance).  Thus there can be no
>>  negligence in leaving it open, at least absent specific knowledge that a
>>  person intends to do a specific thing.
>>
>
> You may have a civil liability to secure your wireless under the  
> terms-of-service agreement with your Internet provider.  Well, maybe not 
> to "secure your wireless" but to prevent unauthorized use of your 
> connection to the service provider - which could be accomplished in 
> other ways.

Normally that would just be a capacity or useage based billing issue in  
practice.  But sure, contract terms vary widely.  Note, though, the  
distinction between "having contracted to pay extra in some circumstances"  
(one type of 'civil liability') and risking being found in violation of  
the contract (another type, but usually one that results in termination of  
the service rather than an obligation to pay).


>
> Miles Fidelman

-- 
A. Michael Froomkin, http://www.law.tm Blog: http://www.discourse.net
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),  jotwell.com
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |    +1 (305) 284-6506 (fax)  |  froomkin@xxxxxx
                       -->It's warm here.<--

----- End forwarded message -----
-- 
Eugen* Leitl <a href="http://leitl.org";>leitl</a> http://leitl.org
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