Re: [tor-talk] Tor Exit Operator convicted in Austrian lower court

[Zenaan Harkness <zen@xxxxxxxxxxxx>]

(Thread start:
https://lists.torproject.org/pipermail/tor-talk/2014-July/033573.html
)

On 7/3/14, Anders Andersson <pipatron@xxxxxxxxx> wrote:
> On Thu, Jul 3, 2014 at 5:53 AM, Moritz Bartl <moritz@xxxxxxxxxxxxxx> wrote:
>> On 07/02/2014 11:00 PM, Anders Andersson wrote:
>>> Unfortunately he doesn't seem to want to take this further, so the
>>> ruling will stand. It's his choice, but it could be a very bad
>>> deterrent to other potential exit node operators in Austria.
>>
>> We are in contact with William, and quite possibly there is the option
>> of following this further with another Austrian operator who
>> self-reports himself, with our help. Please everyone give us time to
>> look into this together with some lawyers.
>
> Thank you! That's amazing! I'm quite sure that the support you get
> from the Tor community when running an exit node really helps in
> giving people the courage to do so.

Agreed, great news.

In hindsight, it is clear that we as a community have an interest to
build a resource of amicus curiae briefs - friend of the court briefs.
So PLEASE make moves in the direction of contributing and collecting
documents which may be relevant to future cases - at the least a
simple collection of legal docs.

We have an interest in protecting our free-speech networks (Tor, I2P
etc), legally as well as technologically and politically. The
Torproject.org website does a good job IMHO of presenting the social
case for free-speech networks.

No matter the circumstances of a particular case (a particular free
speech node operator), we the global free-speech promoting and
free-speech facilitating community, have an interest to advise the
courts regarding matters of technology and free speech, in order to
maximise the sanity of the outcomes brought about by our courts (and
yes, another operators courts are as good as mine, in terms of global
impact). For example a tor-network node operator charged for actual
illegal activity, should not cause legal suppression of free-speech
networks in general.

To kick things off, here's the gist of what I have in mind (this is in
no way directly responsive to the case that started this thread, which
I know nothing about):

"
In this matter an individual has been charged with a [criminal] offence.

The case of a matter of an individual committing a proven criminal
defamation or incitement must not be used by the court to suppress
free speech generally by way of the court's power of judicial
sanction.

Similarly in this case the [Defendant] was the operator of a 'digital
communications facility' which facility was a node in a free-speech
network, in particular the [Tor|I2P} free speech network;

where the operator is found by this court to have committed unlawful
acts, then this court must only  target those unlawful acts when it
makes its determinations, by way of this court's power of judicial
sanction exercised according to law;

and this court must not reach beyond those unlawful acts in its
determinations/ rulings/ sanctions;

if the court exercises its power in reaching beyond those unlawful
acts then such exercise of judicial power is likely to undermine
confidence in the court by all other operators of the free-speech
network and by users of the free speech network.

A ruling by this court will be seen by many humans around the world,
both operators of free speech nodes in the free speech networks, as
well as by users and by potential users of free speech networks around
the world.

In this case, the rulings of this court are visible globally, and
shall be watched by many;
there is therefore a great burden upon this court in this case, and
this court therefore has a special duty of care when it makes its
rulings/ determinations, to be conservative and cautious, in
particular regarding any general deterrents this court might
ordinarily be minded to create by its rulings which deterrents might
unintentionally dampen confidence in this court and/ or confidence in
the courts generally to protect our human rights including freedom of
communication.

This court must be especially careful in its rulings in this matter,
since the court is in a position to bring about chilling effects upon
the liberties of not only those humans within its immediate
jurisdictions, but also upon the broader global community.
"

(A glosary, localisation, much enhancement and other legal polishing
would be required of course, along with subroutined/ separate
submissions regarding each relevant law, and regarding each relevant
precedent in the jurisdiction in question and/ or in jurisdictions
relevant (some cases/precedents are so poignant, so timeless, that
they apply all over the world, e.g. the Credit River Decision, as well
as the trial of William Penn).)


Such advice or briefs to the court are ideally tailored to each
particular country/jurisdiction.

However, even a brief prepared for some country other than the country
at issue, is likely to be useful to those attempting to create a brief
for a particular case in another country, and may even be directly
useful as a filing in its own right, at least if the language is the
same :)

Regarding the filing of briefs, we need standing to file; that is, we
need an interest in the matter which interest is seen by the court.

In some countries particular organisations may be ideal for the filing
of such briefs, such as the FSF and EFF (USA) and EFA (Australia).

In other countries, if there is no directly applicable organisation,
then a "designated representative of the Torproject" who is resident
in that country, may have standing to make such a filing.

Alternatively, a local human-rights-friendly politician may be
amenable to making the filing on behalf of their constituent(s)
(that's us).

Finally, in general any individual should have standing to make such a
filing, since we have an interest in our own human rights - free
speech is a fundamental human right - so we should also aim for the
preparation and collection of briefs file-able by ourselves.

Take notice, we HAVE A DUTY OF CARE to each other, and to the broader
community, to contact Torproject and/ or others in this community, if
ever we find ourselves in a court case involving the operation of any
free speech network node (I2P, Tor, exit or relay), in order that
those in the community who have an interest, ie the rest of us (at
least those of us in the same country), are given the opportunity to
make our interest known to the respective court(s) in that
jurisdiction, by way of filing appropriate and standardized briefs.

Zenaan
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