Subj : Getting Around Usenet Censors (part V) ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ * Forwarded (from: libernet) by Ken Wiebe using timEd 1.01. From: Vernon Imrich Reply-To: libernet-d@Dartmouth.EDU [FAQ continues] Chapter 4: Legalities of Banned Newsgroups Disclaimer: I'm not a lawyer. 4.1 Legal responsibilities of news administrators There are basically two ways of looking at usenet. The first way is like a bookstore; there is no way the bookstore can be expected to scan through all the books it has to see which ones may contain material that is illegal or immoral. The second way is like an official newsletter, in which the editor is responsible for all the material contained within it. Realistically, there is no way that a news administrator can be expected to read through all of usenet news; there are hundreds of megabytes of it every week. However, news administrators that limit access to newsgroups based upon content are assuming responsibility for what is in the remaining newsgroups; they are basically accepting the newsletter view of usenet. If a news administrator limits access to news groups based upon content of those groups, they are basically asking for legal troubles for them and for all news administrators. Imagine if the phone company was responsible for every drug deal that occured over the phone lines; they would be gone in a week. Which way does the law view usenet? This question was partially answered in a recent court case, Cubby Inc. v. CompuServe. In this case, Cubby sued CompuServe for information that was made available through them. The court ruled in favor of CompuServe. They recognized and legitimized the analogy of usenet to a bookstore. But what about obscene images? First of all, it's important to note what the law considers legal. From "SEX AND THE SINGLE SYSADMIN: The risks of carrying graphic sexual materials" by Mike Godwin (mnemonic@eff.org): [BEGIN INCLUDED FILE: 10] In layman's terms, a jury (or a judge in a nonjury case) would ask itself something like these four questions: 1) Is it designed to be sexually arousing? 2) Is it arousing in a way that one's local community would consider unhealthy or immoral? 3) Does it depict acts whose depictions are specifically prohibited by state law? 4) Does the work, when taken as a whole, lack significant literary, artistic, scientific, or social value? If the answer to all four questions is "yes," the material will be judged obscene, and it will be Constitutional to prosecute someone for distributing it. (It should be noted in passing that pictures of the "hardness" of Playboy and Penthouse photography have never been found to be obscene--their appearance in digital form on Usenet sites may create copyright problems, but they won't create obscenity problems.) [END INCLUDED FILE] It's important to note that many of the pictures similar to those that appear in "Playboy" on usenet are not considered obscene by the law. But what about the material that would be considered obscene? From the same file: [BEGIN INCLUDED FILE: 10] And, in the 1959 case Smith v. California, the Court held that criminal obscenity statutes, like the great majority of all criminal laws, must require the government to prove "scienter" (essentially, "guilty knowledge" on the defendant's part) before that defendant can be found guilty. So, if the government can't prove beyond a reasonable doubt that a system operator knew or should have known about the obscene material on the system, the operator cannot be held liable for an obscenity crime. In short, you can't constitutionally be convicted merely for possessing obscene material, or for distributing obscene material you didn't know about. [END INCLUDED FILE] 4.2 Is it legal to describe how to receive banned newsgroups? Yes. Generally, it's not illegal to distribute information about how to do things; people have been distributing information on how to make bombs, how to steal things, and how to modify electronic equipment for a long time, and it's totally legal to describe how to do so. Moreover, it's not (to my knowledge) illegal to read any banned newsgroups. Even if your news administrator has decided that he does not want you to read that group, you have no legal responsibility to follow his wishes. In fact, it may be illegal for him to try and force you to follow his wishes. "Congress shall make no law ... abridging the freedom of speech, or of the press ..." - First Amendment to the Constitution of the United States of America 4.3 Legal references pertaining to banned newsgroups Carl M. Kadie is in charge of a wonderful reference of legal and ethical documents pertaining to freedom of information, especially electronic information. From the latest information I have: [BEGIN INCLUDED FILE: 11] * Computers and Academic Freedom (CAF) Archive The CAF Archive is an electronic library of information about computers and academic freedom. If you have gopher, the archive is browsable with the command: gopher -p academic gopher.eff.org If you have Mosiac or some other WWW client, go to http://www.eff.org/CAF/cafhome.html It is available via anonymous ftp to ftp.eff.org (192.77.172.4) in directory "pub/CAF". It is also available via email. For information on email access send email to ftpmail@decwrl.dec.com. In the body of your note include the lines: connect ftp.eff.org cd /pub/CAF get caf cd /pub/CAF/faq get archive [END INLCUDED FILE] Note: I think that "gopher -p CAF gopher.eff.org" works, instead of the "... -p academic" mentioned above. A very good, in-depth discussion of legal issues affecting computers is "E-Law2.0: Computer Information Systems Law and System Operator Liability Revisited" by David J. Loundy, available through EFF's gopher. EFF is a wonderful net resource. They have a lot of online information pertaining to electronic freedom and privacy, including actual legal documents and interpretations. gopher to eff.org (via one of the ways mentioned above) to check it out. For more information on gopher, see section 5.2. Also, take a look at the Electronic Frontier Canada (EFC) gopher; David Jones (djones@insight.dcss.McMaster.CA) sent me this info on them: ---- Those at Canadian institutions who know of recent instances of "electronic censorship", including bans on Usenet newsgroups, are encouraged to report it to Electronic Frontier Canada by sending email to "efc@graceland.uwaterloo.ca" for inclusion in the EFC archive: gopher -p "1/community/efc" ee.mcgill.ca ---- "The Legal List, Law-Related Resources on the Internet and Elsewhere" by Erik J. Heels is a list of legal resources that may contain info relating to freedom of information or other net topics. [BEGIN EXCERPTS FROM INCLUDED FILE: 12] 2.2.1. MAILING LIST. If you wish to be added to "The Legal List" Mailing List, send a message in the following form: To: legal-list-request@justice.eliot.me.us Subject: subscribe John Smith Hi, I saw a reference to "The Legal List" on CompuServe. Thanks, - John The SUBJECT of the message should contain your real name. I always like to hear where you learned about "The Legal List," so if you include this information in the BODY of the message, I would greatly appreciate it! Version 4.0 of "The Legal List" (as well as other announcements) will be mailed to those on this Mailing List. To cancel your subscription to this Mailing List, send a message in the following form: To: legal-list-request@justice.eliot.me.us Subject: unsubscribe Please allow up to ONE WEEK for a reply to messages sent to legal-list-request@justice.eliot.me.us. (If you send multiple subscription requests, you will get multiple responses. However, duplicate addresses are removed before any messages are sent to those on "The Legal List" Mailing List, so you should not receive multiple copies of any messages.) 2.3. ANONYMOUS FTP. "The Legal List" is available via anonymous FTP from ftp.midnight.com (Midnight Networks Inc.) as pub/LegalList/legallist.txt. You may connect to ftp.midnight.com by anonymous FTP ONLY. (Please do NOT TELNET to ftp.midnight.com.) If you have e-mail access but you do not have FTP access, you may want to try DEC's FTP-via-e-mail service, FTPMAIL (see Section 4.1). To get "The Legal List" via e-mail from DEC's FTPMAIL service, send the following message to ftpmail@decwrl.dec.com: connect ftp.midnight.com ascii get /pub/LegalList/README get /pub/LegalList/legallist.txt quit The files will be e-mailed to you in a day or so. If you have problems with FTPing to ftp.midnight.com, send a message to admin@midnight.com or legal-list@justice.eliot.me.us. 2.4. GOPHER. "The Legal List" is available via Gopher from the University of Southern Maine Gopher site (University of Maine School of Law, site gopher.usmacs.maine.edu). 2.4.2. OTHER KNOWN GOPHER SITES. "The Legal List" has been posted to the following Gopher sites: liberty.uc.wlu.edu Law Related Sources/Legal List... malahat.library.uvic.ca miles.library.arizona.edu morris.lib.udel.edu sluava.slu.edu Do a VERONICA search of "Legal List" to find other sites. (This is why it's important to include the words "The Legal List v3.0" when you add "The Legal List" to your Gopher site.) <+> 2.5. USENET. "The Legal List" is posted on initial release to misc.legal.moderated and periodically to other newsgroups (e.g. misc.legal, misc.legal.computing, misc.answers, and news.answers). It is also available via anonymous FTP from rtfm.mit.edu as /pub/usenet/news.answers/law/net-resources/ files part1-part3. To obtain a copy via e-mail from this site, send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/net-resources/part1 send usenet/news.answers/law/net-resources/part2 send usenet/news.answers/law/net-resources/part3 quit [END EXCERPTS FROM INCLUDED FILE] ========================================================================