[EMAIL PROTECTED] wrote:
[legal references]
Really? I believe I did. Don't get mad at me if you chose to ignore it.
Indeed you did, and I didn't choose to ignore it. What I did ignore was Toad's "take it to chat"; I was unaware of this list. In any case I apologise for claiming you hadn't.
I gave you a link to the New York state penal code definition of criminal facilitation. Which spells out very clearly that one only needs a probable knowledge that his or her actions are allowing for a crime to occur.
http://caselaw.lp.findlaw.com/nycodes/c82/a25.html
The way I read that, you need a probability of a concrete and defined crime being committed by a concrete and defined person (the person can very well be "John Doe", but it must still be identifiable by a specific act or the result of that or something other specific). With your "packet from Mexico" example you have a concrete person, the one for who you carry the packet, and a concrete crime, import of X amount of Y drug into the country.
With freenet you lack both person and crime. How can you be prosecuted for facilititating a crime if no crime can be identified? Yes, we know that some kiddie porn or some copyright infringement or some military secrets might pass through your node, but not that they have passed, let alone which precise kiddie porn or copyright infringement or military secrets passed. How would you formulate a charge? "You are hereby charged for facilitating uhm, something illegal, by providing the means which uhm, someone or other, perhaps used to commit erhm, that". I find it very hard to believe that such a charge would even make it to court.
This thread, however, started with my sketch of what might happen if Big Brother manages to break encryption and to follow traffic. In that case there would be a concrete crime and a concrete individual committing it, so we should examine the situation from that perspective.
I note that that law you pointed to says "believing it probable that he is rendering aid to a person who intends to commit a crime". This still requires the probablity before the act of facilitation to apply to a concrete person and a concrete crime. That is: if I know it is probable that X will commit Y crime using my node and yet provide my node to Y, I might go down for facilitating his crime. With freenet though, this is never the case. You don't know for a probable fact that any concrete person will use your node to commit any concrete crime. To catch a freenode operator, that NY statute would need to say ""believing it possible that he is rendering aid to the committment of crime".
I also provided an appeals court decision that affirm the convection of a women that acted with out full knowledge that she was committing a crime.
http://caselaw.lp.findlaw.com/data2/circs/8th/032780p.pdf
Its application to freenet suffers from the same flaw as the statute above: Florez had concrete reasons in her husband's previous troubles to believe that a concrete individual, her husband, would (not only could) use her account to commit a concrete crime, fraud. Read especially the paragraph at the end of page four and the beginning of page 5, which deals with the difference between willful blindness on one hand and negligence or carelessness on the other.
I also addressed the issue that I ran a freenet node for a brief time
Looking at the archive, I see two postings from you on 5 Aug 20.45 and one on 5 Aug 21.51 before your posting 6 Aug 15.48, which is the one I'm now replying to. I can't see you addresing the issue of yourself running a freenet node in either one of th revious two postings.
In any case, although I made an issue of it, it is not the real issue. The real issue is you posting FUD.
To be clear on this, I think that you have every right to an opinion and have every right to express that opinion without being accused of spreading FUD. If someone else thinks that you are wrong he will say so, and the discussion that ensues will probably help others to make up their own minds on the subject. So far so well.
The problem begins when you post an opinion of "this is illegal" from a usdoj.gov address. Irrespective of your disclaimer (which also came long after your statement on the legality of running freenet nodes), the mere use of that address makes you appear as an authority on the subject matter, which you are not. The use of a usdoj.gov address to post "this is illegal" is *bound to* create the impression that the DoJ is behind your posting, which in turn makes your subsequent disclaimer appear as the DoJ wanting to make a statement without being held accountable for it. *That* is where a mere opnion turns into FUD.
And I would add, don't even think of repeating your disclaimer. We all know that the US government forbids its employees to spend their work time on private matters. We all know that the US government forbids its employees to use government resources for private matters. When you make categorical statements on legal matters, it is natural to assume that you know the rules at your own workplace. They say "thou shallt not post on the freenet lists during work time, nor use Our computers for such postings at any time". Thus, the only possible conclusion to your postings is indeed that the DoJ is speaking and the DoJ is stirring. That's the FUD.
and stated that if for what ever reason it came up I would simply plead out and do some community service.
Community service? If you (a) live in NY and (b) are right in your interpretation of the law, I read felony of various classes in all but one case of facilitation. Mrs Florez got 18 months for facilitating 100K$ fraud. Would facilitating traffic in kiddie porn be looked upon so much more leniently, that you get off with some community service?
You can fill all the complaints you want; the FBI has more important things to do.
Well, that's good to hear. If they have more important things to do, then we know we can let our nodes run and still sleep peacefully.
Failure to prosecute does not set a precedent in any way.
Formally it doesn't, but in some weird roundabout ways it can do just that. You end up in constitutional arguments on the equality of all before the law, namely, and a prosecutor who chooses to prosecute A but not B must be able to show material differences in the cases causing his different decisions, or else he is in trouble.
Similarly I would never go to trial on this; I would simply plead the case out which also does not set a precedent.
A guilty plea doesn't set precedent, but it can set you behind bars. Of course, my threat to report you was just that, a threat, meant to get at the FUD, not you behind bars, irrespective of whether an actual complaint would put you there or not.
Quote - "The lack of honesty and integrity on the part of both yourself and your employer is no hindrance to this." ....?
You don't understand what I mean? WRT to both you and your employer I mean what I explained above about the DoJ speaking and the DoJ stirring. With regard to your employer only I also mean what I wrote earlier about prosecutors who aim at getting convictions instead of justice and a lot of other things which I needn't go into here.
The operation of a node in and of itself is not illegal. Only when it starts transmitting illegal information can a potential problem arise.
A potential problem is not an actual problem. If operation is legal until the point that the node starts transmitting something illegal, then you need to be able to identify that point in time so that you can shut down the node and thus prevent the transmission of the illegal material. If you are able to identify that point in time and yet abstain from taking measures, we could start the discussion on willful blindness all over again. If, however, you are totally unable to identify the point in time when the operation of your node *might* begin to be illegal, then you cannot reasonably be held responsible for running it past that point. Right?
Z
-- Framtiden är som en babianröv, färggrann och full av skit. Arne Anka _______________________________________________ chat mailing list [EMAIL PROTECTED] http://news.gmane.org/gmane.network.freenet.general
