At 08:05 PM 5/1/2001 -0500, Aimee Farr wrote:
>Honig:
>
> > Is it in fact a crime of fraud to advertise that you don't keep logs
> > when in fact you do?
>
>Seems deceptive...
I think it's plausible to come up with either civil or criminal arguments
for liability in this sort of situation - either good old-fashioned
common-law fraud, or wire/mail fraud on the criminal side, and
unfair/deceptive trade practice, fraud, or breach of contract on the civil
side.
(Wandering out into the speculative-bullshit zone, maybe malpractice - if
remailers can be said to be a profession or community which has a standard
of care, which the operator has fallen beneath .. or an express warranty
claim?)
In any scenario, it seems like a few points are likely to be crucial -
1. Was the logging foreseeable at the time the statement/promise
regarding "no logging" was made?
If there was no intentional misrepresention, pretty much everything except
breach of contract fails.
2. Was the transaction between user and service provider a "sale" -
e.g., was there consideration? a contract? If the activity between the
parties did not involve the exchange of value, then it's hard to argue that
there's been a fraud, a breached contract, or an unfair business practice.
So, if I were designing a system which hoped to rely (only in part,
hopefully) on legal impediments to the creation of logs, I would make that
system one which (a) involved an exchange of value and (b) frequently
restates the operator's promise not to keep logs, ideally as part of the
transaction, such that the transaction can be aborted if the promise is
missing or otherwise unsatisfactory .. and can be said to rely (perhaps
detrimentally) on the statement about the lack of logging.
Even so, that's pretty weak protection.
--
Greg Broiles
[EMAIL PROTECTED]
"Organized crime is the price we pay for organization." -- Raymond Chandler
