On Mon, 21 May 2007, Kyle Wheeler wrote:
> On Tuesday, May 15 at 10:56 PM, quoth Dean Anderson:
> >> I get a 404 on this page,
> >
> > Oops. My mistake. It should be:
> >
> > http://www.av8.net/IETF-watch/People/JohnLevine
>
> > I've heard this a lot. In nearly 10 years of calling ISPs a couple
> > times a month to remove unlawful blocks (which escalates to lawyers
> > about once every 6 months after running into a SORBS-partisan
> > sysadmin), no ISP lawyers have ever disagreed.
>
> Unfortunately, the state of our legal system is such that ISPs tend to
> be so nervous about legal things that they will do things when asked
> even when they don't have to. For example, you can demand that an ISP
> take down a website for DMCA violations, and chances are they'll do it
> without even glancing at the website they take down
> (http://www.spiked-online.com/Articles/0000000CA553.htm).
That is because under the DMCA, unless there is a counter notice, the
ISP has to take it down or face penalties. The ISP cannot decide the
validity of the claim, and without a counter notice, must act to take
down the site. I've been subjected to bogus DMCA claims, and have filed
the necessary counter notices, and obviously discussed these subjects
with lawyers. Once the ISP is in receipt of a counter notice, it is off
the hook, as it were. But if the ISP has taken down the site, the
person filing the bogus claim is liable for damages. ISPs usually do
the right thing according to DMCA law, and it isn't because they are
'nervous'. Your example fails.
It is not the case that ISPs comply because they are "nervous". But you
can try to spin that anyway you want. Companies with lawyers on salary
(like large ISPs) are generally not very nervous about fighting what
they actually think are dubious claims. BTW, I should add that I have
gotten large ISPs to pay my legal expenses, after their admins asserted
they can do whatever they want regardless of the Wiretap or ECPA. See
for example http://www.iadl.org/JATerranson/JATerranson-story.html
> > Interloc was also dubious. Their view got the company criminal
> > charges
>
> No, their *actions*, combined with the views of the prosecutor, got
> the company criminal charges. There's a difference. Thought-crime is
> not *yet* a punishable offense in America.
Huh??? This seems to be a distinction without a purpose. But I'll take
the opportunity add something about criminal intent and corporations.
Criminal intent is not an element of Wiretap or ECPA violations. In
general, as a matter of law, corporations can't have criminal intent,
only people have criminal intent. So, you only see corporations charged
with crimes not involving intent.
But I think my point about Interloc being dubious wasn't quite clear. I
meant that the people running the corporation, at least the system
administrators, cannot claim that they couldn't know that what they were
doing was wrong---These claims are known as 'fair warning doctrines'.
Councilman argued that he couldn't have known or understood the law;
Interloc and staff didn't have fair warning that their conduct was
criminal. The court rejected this view.
> > and a $250,000 fine. The company plead guilty. The IT sysadmin plead
> > guilty, and were fined $2100 in a plea deal to testify against
> > Councilman.
>
> Pleading guilty is not a binding legal precedent. All it really means
> is that the defendant didn't want to fight their accuser for some
> reason. It doesn't validate the law, and doesn't make for a case that
> can be cited when prosecuting other similar offenses.
Ah yes. They plead guilty as part of my conspiracy to invent privacy
laws that don't exist. Keep believing that, and I'm sure that
eventually, you'll have an opportunity to discuss the issue with your
attorney. In the meantime, I'll decline to argue these issues with you,
since, in my experience, 'die-hard true believers' cannot be convinced
that laws apply to them. Further, your non-belief doesn't change
anything, so there seems to be little point in extended argument. For
most people, simply having a little knowledge of where to look for more
information, can decide for themselves. They usually decide to follow
the law. So my job is done simply by pointing out that you are wrong and
including some web links.
> And finally, despite DNS being viewed as "public" information by some,
> it absolutely is not necessarily public information. There are lots of
> people who, for example, have a split-horizon DNS setup where
> computers within their own network get different answers than
> computers outside the network---the answers given to the internal
> computers are most certainly *NOT* "public" information. Just because
> you communicate a piece of data via a particular protocol doesn't make
> it automatically "public". Take, for example, the Department of
> Defense's classified network. They use DNS, but that network isn't
> physically connected to anything else. Surely you don't plan on
> claiming that all of that DNS information is public information? DNS
> provides a means of distributing information, nothing more.
Yes. True there are some examples where DNS isn't private. But we aren't
discussing split horizon, nor classified networks. So none of that is
relevant. In this case, we are discussing public DNS information. It is
_supposed_ to be public, so that the general public can get to the
customers' web sites, etc.
--Dean
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