Lawyer Free Net

Posted 8 Feb 2001 at 11:56 UTC by whatever Share This

Would it be possible to create a licensing scheme for a network which specifically forbids any legal action?

I remember the good old days, 15 years ago, when the Internet was an academic plaything, and legal action was an aberrant exception to the rules. It was possible to hack into any machine, break any software, try out new methods, experiment with ideas, and express any opinions without worrying about going to jail.

It was a harsh environment in some ways, but it was a pure one. Companies didn't sue everyone to legally justify faulty protocols or bad designs. Ideas, messages and machines stood or fell on their technical merits.

Is it possible to introduce a licensing scheme for machines and networks that removes any legal recourse? Some way of forming a network that says that anything on that network cannot be used as the basis of any legal case.

Obviously there are limits to what can be screened out... eg, illegal material is going to be illegal whatever the disclaimers. However, a common agreement between users of this network could eliminate a lot of crap.

How many people would be interested in a network like this?

paradox?, posted 8 Feb 2001 at 12:50 UTC by hanwen » (Journeyer)

How do you make this "no legal recourse" a legally binding license in the absence of lawyers? Or put differently, what will you do when lawyers start suing people anyway? S ue them?

cryptoanarchy, posted 8 Feb 2001 at 14:28 UTC by Zooko » (Master)

The cypherpunks envisioned such a free network in which the participants are protected not by legal disclaimers but by pseudonymity. Read the Cyphernomicon (by Tim May, not to be confused with _Cryptonomicon_ by Neal Stephenson).

It hasn't really worked out, but it might, yet. Look at Zero Knowledge.

Also my own project, Mojo Nation might enable people to publish information (source code, rants, etc.) without fear of censorship.


Lawyers aren't the problem..., posted 8 Feb 2001 at 17:04 UTC by egnor » (Journeyer)

Barring (no pun intended) lawyers is just shooting the messenger.

As you say, illegal activities remain illegal; it's not possible to create a "law free zone" (for obvious reasons!). It sounds like what you want is a *tort* free zone. Specifically, you want everyone who signs up to your network to sign a disclaimer absolving the network and everyone else on it of any responsibility for harm which may ensue from data which arrives on the network.

(On the other hand, what if their upstream provider has faulty equipment which shorts 110V directly onto the network wire, frying their equipment? I suspect you'd still want to hold them liable.)

Is it possible to write a legally binding disclaimer of that form? I'm not a lawyer, but I hope so; it's generally useful to be able to negotiate liability. But, once again, the illegal will remain illegal, so the DMCA still applies and you can still be taken to court for distributing DeCSS.

"whatever" is wrong, posted 8 Feb 2001 at 23:20 UTC by jbuck » (Master)

I was an active net participant 15 years ago, and my use of the Arpanet predates the switchover to TCP/IP. I ran my company's Usenet feed from 1985 to 1989.

The fantasy network "whatever" is referring to did not exist 15 years ago. People could get away with more because fewer people were paying attention, but when attention was brought to bear, people most certainly were punished, in a number of cases by completely losing their access to the network. It was not legal to do for-profit business over the Internet. Usenet, which did not go over the Internet in those days (NNTP was just beginning, most of the traffic went over UUCP dialups) was more anarchic in some ways, though not in others; Europe cut off access to the Usenet net.politics group because of a few neo-Nazis (the real kind) posting race-hate stuff that is illegal to distribute in most of Europe, and if you offended one of Usenet's petty dictators, you were hosed.

If crackers were ignored to a greater degree, it was because what they were cracking into was considered to have no value (unless it was the telephone network: phone phreaks were being jailed in 1986).

Me, I'm a big fan of anarchism (not what commonly passes these days for libertarianism, which seems overly fixated on property rights at the expense of all other rights). Anarchism means that people attempt to get along and cooperate without some of the people imposing their will unilaterally on the others. When it works, anarchism works by achieving rough consensus. When the net was a small community of like-minded people, this kind of anarchism was achievable, although there were many crises along the way (hence the common phrase "Death of USENET predicted").

Bad idea, posted 8 Feb 2001 at 23:20 UTC by RyanMuldoon » (Journeyer)

Why would we want an Internet devoid of rules, even if one were possible? While yes, there is always a longing for the days of yore, back when things were "pure," those days are past. Why should it be ok if you hack into a computer? Today the Internet is a lot more than a plaything. There are serious problems if any script kiddie can break into a site, steal my credit card number, and spend my money. There are serious problems if pedophiles can freely exchange kiddie porn. These things are illegal for a reason. Of course, these are extreme examples. But honestly, if such a network were created, who do you think would be using it?

The "hacker ethic" and all of that is great, barely anyone that is a hacker (in the breaks into computers sense of the word) actually knows what those are anymore. Hacking isn't really about intellectual curiosity anymore. Of course, people will hide behind that statement to make themselves seem less culpable. Very few people actually have strong ethical ideals that they are willing to adhere to. This is why there are those pesky things like laws. "If men were angels, we wouldn't need government."

I have a really hard time buying into the techno-libertarian ideals that are so often tossed around. Yes, some laws are frustrating, and are dumb. But should we just ignore them? Absolutely not. We should use ourselves as an interest group, and lobby countries to make changes. Really, government isn't what people should be worried about. I'm a little more worried about huge multinational companies that wield far more power than most governments. Without the few restrictions that are imposed on them now, things would quickly get far worse for individuals that want increased freedoms.

Rather than making technology that can subvert laws, we should recognize that people with less nice intentions can do the same thing. While things like FreeNet or a "Lawyer-free" network are nice ideas, they are not going to turn out like they do in cyberpunk novels. If you feel your freedoms are being restricted, fix it at the societal level. You make things better for everyone that way. One of my hopes for the Free Software movement is that it will reach a critical mass, at which point it will gain some political influence. Then we can see some positive changes to the laws regarding IP. We can try and return to more grassroots democracy. We can try and remove power from the huge companies that have appropriated the government. But we can't do that by ignoring laws and working around things with technological means. The focus should be on promoting the fundamental values of the community, not just removing ourselves from governmental influence.

"Against public policy", posted 9 Feb 2001 at 00:10 UTC by schoen » (Master)

I'm going to focus on the question of whether this would work rather than whether it's a good idea. It wouldn't work.

You can't avoid criminal liability in any jurisdiction with a disclaimer or a contract (unless a particular criminal law happens to say that consent is a defense, but it still might not be possible to express consent through a contract or agreement far in advance -- I assume you can't have a prior contract to have sex and use that as a defense against rape charges). The traditional theory is that criminal offenses are offenses against the state, not just against some individual or group; in some countries where a monarch is considered the head of state, these cases were (and are) prosecuted under titles like R. v. Smith, where R. stands for "Rex" or "Regina" (the King or the Queen).

There's no reason that the Queen, or the United States Attorney, or any other prosecutor would refrain from prosecuting criminal offenses because of a disclaimer.

How about civil lawsuits? Here in theory people can sign contracts promising not to sue for certain categories of things. But if those are applied too broadly, the contracts are usually considered "void as against public policy" by legal systems (meaning that they are invalid, or can't be enforced in court, because there is a claimed public interest in not enforcing that provision). You can sign a blanket contract saying that you won't sue a certain person, period, but it's really unlikely that a court would hold you to that in every imaginable circumstance (even circumstances in which you had intended that it apply).

Depending on your goals, you might or might not care whether courts will enforce the contract creating a "lawyer-free zone". After all, there are many other dispute-resolution and contract-enforcement mechanisms outside of courts! (Some people seem to refuse to believe that this is the case or that anyone would care.) Some of those methods are legal and some are illegal or extralegal.

One of the most popular methods which is often legal is to sign a contract saying that all disputes in certain broad categories will be submitted to binding arbitration rather than litigation. Often courts have been willing to accept this and to require people to go to private arbitrators -- except for the exceptions, where courts thought it was important for some public policy reason that they overrule that and retain jurisdiction.

So if you just want a practical legal strategy, you could ask a lawyer about an attempt to bind a huge collection of people (who want to participate in a network) to arbitration subject to certain stipulated principles. But that doesn't mean that a court would refuse to intervene if it saw some law or issue that it thought needed to be addressed and couldn't adequately be satisfied through arbitration. And this is a big threat to people who are (by mutual consent) trying to avoid having their potential disputes end up in court.

Anyway, there is (by design) no legal way out of standard criminal liability within the context of a legal system that recognizes it. There are huge categories of things where consent is considered no defense -- and some of the hot issues like copyrights can't legally be circumvented by making people sign waivers and NDAs and things.

"Public policy" as a concept is extremely powerful; it means that many intuitions about how (e.g.) contracts should work ("But he signed it!") are completely thrown out the window much of the time in the service of some other interest. A lot of libertarians and some other people are very interested in "private law" -- roughly, we n people say that our interactions with one another (though not necessarily with others) will be governed by these stated principles and procedures, rather than "standard" or "default" civil procedure as created through legislation and common law. The trick here is that courts consider that public policy requires that everyone have recourse to the courts to have grievances dealt with, and that you can't entirely sign that right away (even if you wanted to).

Was not the first IBM open software licence like this..., posted 9 Feb 2001 at 18:46 UTC by cmacd » (Journeyer)

I seem to recall that the first attempt that IBM made at a open software licence had a provison that among other things revoked your right to use the software if you were to take IBM to court. Someone, I belive it was BrucePerens had to explain to them why this was not such a good idea.

If you want to set up a network where you can try exploits and such, you can do so if you control the entire network. You could set up a testbed arrangement, perhaps located at a university, or a laboratory to experiment with such things. You probaly could limit the conectivity to those that agree to allow the experiments. Oviously, such anetwork has no place on the Internet at large.

While I came into usenet at the end of the golden age, I agree that any lack of formal use of the legal system had to do with the fact that all users were participating with the permission/blessing of their Employer or School. Any transgresion was delt with by the NET-Death penalty - you simply would lose access. In those days I had no way to use the net because I was not a student or a researcher. When I got wind thorugh my wife's workplace that the NCF was opening I jumped for joy. A year or so later, One could start to connect via commercial suppliers like Achilles, then the hordes came from AOL and usenet has not been the same since. Before the Invasion by AOL, usenet would become unusable for two weeks in september while all the new undergrads learned about netiquette, often by way of Flame-Mail in their shiny new mailbox.

Any content that was illegal that was not dealt with in those days was surely a case of the authorities either not watching, or being unsure how to proceed against someone who may well be in a country where the material in question may be legal. These days, that partular problem is sometimes bypassed by attempting to apply US law everywhere. - An Idea that has its start because almost every part of the net tends to pass though the US.....(and the Americans have it in their minds that they are cops to the world)

but, why?, posted 10 Feb 2001 at 07:11 UTC by turing » (Journeyer)

Most of what you're talking about seems to be the effect of a fairly small, homogeneous population of users - i.e. a community. Past (x) users (x being some mysterious threshold where it stops being a community), you loose that. The web today is _so_massive_ that you can only have little communities separated - much like in meatspace. Obviously it's a bit weirder given that location and (increasingly language) don't matter.

Re: "no legal action": In the pure sense, no - i.e. tort is part of most legal system around the world. It's a relatively good system in most places, though in the USA it (in my opinion) has been abused so badly that people aren't allowed to accept the consequences of their actions.

You could create a _contract_ not a license, since I don't believe one would be applicable - that explicitly states that certain pieces of infrastructure are to be offered up to the "community" for whatever purposes it likes, and that you disclaim any right to take action on any party that does damage to that infrastructure, etc.

Not being a lawyer, I can't say for sure, but I think under the right circumstances you could do that (and it would hold up in court),

But the question is, why? Small networks of people doing something strange like trying to hack each other's machines occurs to me as something cs undergrads and their friends do for fun, which is fine - but no one is going to sue them as long as they don't hack anyone's machine without permission :)

But you certinaly can't get around the fact that intentionally cracking machines can in some cases be a federal crime (though just breaking in seems to be a misdemeanor)

anyway, lawless land isn't a possibility, but I think you could come up with a good set of rules for people to agree to, so no legal action was possible, but I don't see why? :)

New society, posted 12 Feb 2001 at 19:39 UTC by Malx » (Journeyer)

It whould be interesting to build new souciety, but the wrong thing here is you still need to interact to real world.
And The Real World need Low to govern and keep the state of main business class. They need stable future.
But they also need Internet (network people made them think so :)

You could create communities (like Advogato) with or without management. But it is all untill you need to bye computer or pay for Internet access or just food.

Same with breakage into computer - it is all ok, untill it cost money to some businessman. Not the fact of breaking in, but the result of it - influence on Real World is valuable (but harder to track :)

yes it is possible, posted 15 Feb 2001 at 13:12 UTC by andrewmuck » (Journeyer)

the only requirement is that you need to be able to prevent identity from being revealed, from sufficient content and legitimate use that as a whole it is tollerated.

Privacy, security.

the posibilities abound, people just need to grasp them.
If an identity can be traced back to a real person then an external person can sue over a comment regardless of where made, no traceability can be allowed, keep your identity secure and you wont get sued. Keep the info where it can't be pulled it will stay up.
Don't do transactions that can reveal yourself, all these are possible, they just take the effort of doing them, this will get easier with time.

cya, Andrew...

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