[Seattle-editorial] SD IMC Legal Report re certain kinds of postings

[Sheri Herndon]

i thought it was good information
even if we feel like we know some of it.
the law is always changing.
i hope to see the imc-legal group put together an faq on some of 
these kinds of things.  i'm sure many other imcs might find it 
helpful, at least here in the states.

>Delivered-To: sheri at speakeasy.org
>Delivered-To: sheri at indymedia.org
>X-Sender: ajenik at popmail.ucsd.edu
>Date: Tue, 17 Dec 2002 23:50:04 -0800
>To: sdimc at yahoogroups.com
>From: Adriene Jenik <ajenik at ucsd.edu>
>Subject: legal report (for real)
>Cc: guy at subrosa.org, sheri at indymedia.org, dhalleck at weber.ucsd.edu
>
>Hi all,
>
>I just put my parents to bed & have a moment to try & condense the 
>discussion I had with the lawyer from the Electronic Frontier 
>Foundation. The EFF are an important online Free Speech legal 
>advocacy group - they have been a part of just about every legal 
>wrangle around free speech & privacy rights on the internet. He was 
>a great guy - knowledgeable & supportive of the imcs - was one of 
>the lawyers who came together to support Seattle IMC when their 
>office was raided & they were pressured to hand over their logs.
>
>As you could see from the earlier link I posted regarding this incident,
>
>http://www.indymedia.org:8081/fbi/
>
>there are issues involved in this whole thing that have to be 
>discussed since they do not just involve our own selves & sdimc, but 
>the security & privacy of everyone who posts on the site.
>
>Ok, that said I'll try to be both thorough & brief.
>
>Basically, accoding to the lawyer, this is not the clearest area of law.
>There are precedents to point to to support going after us for 
>leaving it on the server & precedents that support a decision to 
>leave it.
>
>The main issues revolve around whether or not an ISP can be liable 
>for postings they did not author. This would have to do with 
>libelous postings, criminal postings are of a different matter (a 
>"serious" death threat would be treated as a criminal issue).
>
>Issue #1)  is this really a threat?
>This lawyers' opinion after seeing the posts was "no"
>-He felt there were precedents for this type of speech seen in the 
>context of political discussion/forum and these would be categorized 
>as "political hyperbole" (He gave a really good Vietnam war example 
>but my notes on this are mangled, sorry)
>-He felt it was not a *direct* threat, either - rather an indirect 
>threat (i.e. someone expressing the desire for someone else to kill 
>Bush)
>
>The test is whether they were "words that a reasonable target of the 
>comments would understand as a threat to their bodily harm" in other 
>words, something more specific that would include more details of a 
>plan.
>This is complicated by the recent ruling by the 9th Circuit US Court 
>of Appeals upholding a decision against Anti-Abortion groups who 
>host web sites that have threats against doctors & clinics with home 
>addresses & the like. The anti-abortion groups were ruled liable for 
>the threatening postings on their sites.
>
>Issue #2) If it were a threat, would the sdimc be liable?
>Since we are not the author of the words we would have something 
>called "accomplice liability" if any. ISPs (which we would be 
>considered generally) have special treatment under the law. The test 
>is if we had "the knowledge and desire to disseminate" the threat.
>
>Here is the interesting issue/dilemma here:
>- If we leave the stuff up we could be liable/responsible
>- If we monitor the newswire & exercise editorial discretion over 
>some parts, but leave these up (just cause we miss them, for 
>instance) we are likely to be viewed as responsible for the posts 
>that are left up there.
>
>***In this lawyers opinion - the more hands off we are in the 
>editorial filtering of the newswire, the easier it is to make the 
>case that this is a free and open forum that we do not edit, 
>therefore, are not responsible for what is there & what is not.***
>
>Then again, though he said he felt it was unlikely that our server 
>would be confiscated, he could not say that that would not happen, 
>nor guarentee that we could not be charged, and encouraged us to do 
>what we need to do to protect ourselves & those who post to the site.
>
>He suggested the following:
>
>a) ongoing site backups (that way if our hard drive is confiscated 
>we still have the data we need to reinstall the site)
>
>b) standard policy of anonymizing our logs (either immediately or 
>after 24 hours) - stripping all associated information - this is 
>important so that if someone comes and demands we turn over our site 
>logs we can say "We don't keep that information" and turn them away 
>- this protects the community of posters. Of course it is a tech 
>issue......
>
>In any case, I hope this summary is clear - as he said - its a 
>dilemma for us to discuss among ourselves & decide what to do. It is 
>definitely not addressed in our editorial policy, so we should talk 
>about it & decide a policy soon.
>
>On the way back & forth with these discussions, Sheri Herndon from 
>the Seattle imc sent me their editorial policy
>http://seattle.indymedia.org/policy.php3
>
>She said it was struggled with over a long period (if you read the 
>post-fbi press release postings you can tell there are lots of 
>passionate & articulate folks there) & that a number of other locals 
>have adopted it.
>
>ok, thanks for reading.
>
>Adriene
>
>
>
>
>
>
>
>--
>Adriene Jenik, Associate Professor
>Computer & Media Arts, UC, San Diego
>9500 Gilman Dr. La Jolla, CA 92093-0084
>tel 858 822-2059  fax 858 534-7976
>http://www.desktoptheater.org
>http://activecampus.ucsd.edu


-- 


In sum, we are an army of dreamers, and therefore invincible.  How 
can we fail to win, with this imagination overturning everything. 

-- Subcomandante Marcos