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 18:07:48 -0500 (EST)
To: "Naslund, Steve" <SNaslund@xxxxxxxxxxx>
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

On Thu, 29 Nov 2012, Naslund, Steve wrote:

> 1. Running open access wireless does not make you legally an ISP and if
OK.

> your open wireless is used to commit a crime you could be criminally
> negligent if you did not take "reasonable care" in the eyes of the
> court.
>
I believe this is incorrect under US law.  Do you have any support,  
statutory or case law, for this claim?

> 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.

> 3. I guarantee you that if your blogging site, wiki or whatever is
> publishing content like child porn, you are going to jail.  There is no

Child porn is an unusual strict liability crime.  If you publish or possess 
it, even unknowingly, you face real risks.  As a practical matter most  
prosecutors do not bring cases against innocent victims (e.g. someone on  
AOL who gets an evil popup unexpectedly).  In theory maybe they could, but  
I suspect they don't really want the test case.

> "ISP like protections" for that.  If you do not take action as soon as
> you know a crime is being committed, you are going to get nailed.
>
> The question in this case would be all about whether the Tor exit node
> is viewed as a device specifically enabling a criminal or something that

I do not think that would be the analysis under US law at all. The first  
question is mens rea.  We do not charge the car rental company with  
something if its car is used to rob a bank -- unless they knew in advance  
that was the plan.  Cars enable criminals too.

> was incidentally used to commit a crime.  For example, if I give you a
> hammer and you break into someone's house with it, I am probably not
> criminally negligent.  If I provided you with lock picking equipment and
> you are not a locksmith, I might be criminally negligent.  This is not

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.

> so clear cut a case that there would not be a fight about it.
>
> Steven Naslund


[...]

-- 
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.<--

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