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

[Benedikt Gollatz <ben@xxxxxxxxxxxxxxxxxxxxxxxxxx>]

On 07/05/2014 05:28 AM, Joe Btfsplk wrote:
> On 7/4/2014 3:02 PM, no.thing_to-hide@xxxxxxxxxxxxxxx wrote:
>> -----BEGIN PGP SIGNED MESSAGE-----
>> Hash: SHA1
>>
>> Hello Tor!
>>
>> Running an internal relay in Graz since 7/2013, where William Weber's
>> appartment was raided in 2012, when some idiot misused his exit for
>> illegal stuff, I became interested in his case. But I know it only
>> from the newspapers.
>>
>> The raid took place on Wed, 2012-11-28 (1). William did intensive
>> blogging afterwards (2)(3), the legal process started, and ended this
>> week Mon, 2014-06-30, with 3 y probation. I found a German article
>> which provides a good summary (4, Google Translate).
>> He was not convicted for operating an exit (!!), what is legal in
>> Austria. But, according to the opinion of the judges, for
>> "contribution to delinquency" ('Beitragstaeterschaft' in German):
>> "(...) that he answered in an interview to the question whether he was
>> aware that Tor could be used for distribution of child pornography,
>> responded at a conference: "I do not give a fuck.(...)"
>> "(...) that the prosecutor quoted from chat logs in which he for
>> anonymous hosting of everything, including child pornography,
>> recommended Tor (...)" (4)
>> - --> The proofs for such an attitude are not really helpful when
>> getting to court.
>>
> Interesting.  Taking that account at face value, then apparently at
> times, the "rule of law" is as subjective in Austria as it is in many
> countries.
> 
> What do we take away from Weber's conviction?  That it's illegal (or at
> least punishable) to speak your mind in Austria?
> Unless there's more to the story, I would think that judge believed he
> pulled a fast one, by "giving" Mr. Weber probation for something that's
> not against the law.

IANAL, but here is how his lawyer and the ISPA lawyer explained it at
the meeting (I'm going to translate German legal terms as best I can, so
probably incorrectly):

If someone downloads child pornography through your exit node, you have
objectively facilitated the distribution of child pornography. That in
itself is however not criminal, you also have to act intentionally.

There are three types of intent: you could be acting deliberately ("I'm
going to run an exit node so people can download child pornography"),
you could be acting knowingly ("Hey, I'm gonna use your exit node to
download child pornography." -- "OK, fine."), or you could act
acceptingly ("I don't care if someone downloads child pornography
through my exit relay.") -- "dolus eventualis".

Because of the chat logs that were found on the confiscated equipment,
the judge found that the defendant's actions amounted to dolus eventualis.

However, even given both objective facts and intent, that makes an
action not automatically criminal. Additionally, possible legal grounds
of justification have to be considered, and in William's lawyer's
opinion §13 ECG would be such a legal ground of justification (which
grants exemption from liability to operators of "communication
networks", an unfortunately not too clearly defined term). The judge,
not being familiar with the technical details and generally just
presiding over a lower court, did not go to the trouble of considering
any possible such grounds.

In order to force legal clarity, we would have to find a cooperative
Austrian exit node operator through whose exit node someone has
downloaded child pornography (not something you would actively want to
be looking for) and whose actions would also satisfy the criteria for
dolus eventualis. Only then would a court be forced to consider §13 ECG
as legal grounds of justification. This seems difficult.

Benedikt
-- 
tor-talk mailing list - tor-talk@xxxxxxxxxxxxxxxxxxxx
To unsubscribe or change other settings go to
https://lists.torproject.org/cgi-bin/mailman/listinfo/tor-talk