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See: http://scholarship.law.marquet...

And also: http://repository.jmls.edu/cgi...

There is conflicting case law in certain courts, but in general, the "Federal" rule as per SCOTUS does not require criminal intent:

But it is interesting to note, in the Lockwood case, the United States Supreme Court modified its earlier decisions by refusing to reject degrees of care or diligence. Thus, if there is anything of a "Federal" rule, it is that there are no degrees of negligence, but that there are degrees of care.

By intentionally creating the server, she showed conscious and wanton disregard (extreme carelessness aka gross negligence). Arguing her intent had to be specific to an individual email, and therefore she could always defend with "I could not recall", misses the larger carelessness that occurred. She *intentionally* set up a system that facilitated the violation of 18 U.S.C 793 (f), and then that actual risk was actualized on numerous, ongoing occasions.

At the very least, we should all be able to agree that this should have been adjudicated at trial, and avoiding such a trial was a political move, not a legal one.

Comey used a synonym for "gross negligence", and it makes sense that he did so - the pressure on him to avoid an indictment was phenomenal, but he couldn't help but hold onto the last shred of integrity that he had by stating obliquely that indeed, she had committed a crime. Reminiscent of that POW that said one thing but blinked in code another.

(One mentioned "gross negligence", but the common legal interpretation of that phrase is pretty much the same as "intent".)

I re-read your statement. My disagreement stands - the common legal interpretation is not "pretty much the same as intent".

Although, I will agree that there are some specific cases where that legal interpretation is made. Here's a more recent cite, with some support for your position in specific states (showing some of the confusion across some courts): http://repository.jmls.edu/cgi...

As for "up to the judge", I'll defer to the SCOTUS (granting that some federal courts may on occasion disagree with each other). As per the original citation:

But it is interesting to note, in the Lockwood case, the United States Supreme Court modified its earlier decisions by refusing to reject degrees of care or diligence. Thus, if there is anything of a "Federal" rule, it is that there are no degrees of negligence, but that there are degrees of care.

More importantly, given that 18 U.S.C 793 specifically differentiates between "intent" and "gross negligence", it is difficult to assert that they are meant as synonyms.

That all being said, it's obvious there was "intent" (as in "intentional act"), given that creating a secret email server is an action that cannot be done accidentally. Whether or not it was intended to hurt the US (18 U.S.C 793 (a) (b)), or if it was simply an "intentional act" of gross negligence, lacking care (i.e., careless), then that fits 18 U.S.C 793 (f).

So regardless of ambiguity in lower court interpretation, Hillary fails on both counts - gross negligence, and intent.

Unintentional "gross negligence" would be something like, leaving your car unlocked and your secret blackberry laying on the seat in a bad neighborhood - a reasonable amount of care would have avoided the risk. Building your own private secret email server isn't something that happens through chance, or by accident - it is an intentional act, and in this case, a grossly negligent one.

Boy, it would've been nice to actually have this adjudicated in a court of law though, instead of having the process short circuited by secret meetings on tarmacs :)

The U.S. law in question, which protects "service providers" from libel liability from third-party postings, has an interesting history. Back in 1995, a New York judge found that the then-proprietary Prodigy service could be held responsible for an allegedly libelous posting to its Money Talk bulletin board about the Stratton Oakmont financial services firm, on the theory that Prodigy exercised editorial control over the postings. The fact that Prodigy's editorial control was limited to automated dirty-words filtering was lost on the judge.

In response to the uproar by ISPs and online hosts over this case, the U.S. Congress enacted a safe harbor for service providers, ironically into the roundly criticized Communications Decency Act. While most of the CDA was found unconstitutional, the safe harbor remains (at 47 U.S.C. 230, and has been used by a number of major ISPs (including AOL in a case involving a Matt Drudge story) over the years.

This case will likely come down to whether a blog creator is a service provider as defined by the law and the cases that have interpreted it. What makes it interesting is that allowing public comments to a blog really falls somewhere in the spectrum between hosting a message board and publishing letters to the editor, depending on issues of control and other factors.

A few other thoughts. First, regarding those Slashdotters who have marveled at the U.S.-centric views on Internet law, it's really the European Union (through its data protection and VAT laws among others) that has sought to project its legal structure regarding the Internet to others around the globe. Also, as it happens, libel via the Internet has generated major new jurisdictional questions, as the libelers have been brought to trial in foreign countries whose libel laws are much more pro-plaintiff than those of the alleged libeler's home country. (Take a look at the Dow Jones v. Gutnick case for just one example of this.)

-------------------
Prof. Jonathan I. Ezor
Assistant Professor of Law and Technology
Director, Institute for Business, Law and Technology (IBLT)
Touro Law Center
Co-Author, TechLawProf Blog

There are clearly cases where direct knowledge of infringement has not been required. Read the decision in the case Playboy Enterprises v. Frena:

There is irrefutable evidence of direct copyright infringement in this case. It does not matter that Defendant Frena may have been unaware of the copyright infringement. Intent to infringe is not needed to find copyright infringement. Intent or knowledge is not an element of infringement, and thus even an innocent infringer is liable for infringement; rather, innocence is significant to a trial court when it fixes statutory damages, which is a remedy equitable in nature.

John Marshall is basically well known for two things: Trial Advocacy and Computer Law. I think they have one of the first programs dedicated to computers and the law in the country. They have a computer law journal and recently hosted the American Bar Association's first conference on computer crime. They also host the American Bar Association Mock Trial Competition every year.

It's really a relatively small school without the cutthroat competition of places like Harvard or Stanford. On the one hand, this means you'll have a better chance to pick apart the law. On the other hand, it doesn't have the Harvard or Stanford name.

I'm not a lawyer (ironically) and so I don't know what John Marshall's reputation is in the legal world. The ABA seems to like it.

Hope this helps.

John Marshall is basically well known for two things: Trial Advocacy and Computer Law. I think they have one of the first programs dedicated to computers and the law in the country. They have a computer law journal and recently hosted the American Bar Association's first conference on computer crime. They also host the American Bar Association Mock Trial Competition every year.

It's really a relatively small school without the cutthroat competition of places like Harvard or Stanford. On the one hand, this means you'll have a better chance to pick apart the law. On the other hand, it doesn't have the Harvard or Stanford name.

I'm not a lawyer (ironically) and so I don't know what John Marshall's reputation is in the legal world. The ABA seems to like it.

Hope this helps.

John Marshall is basically well known for two things: Trial Advocacy and Computer Law. I think they have one of the first programs dedicated to computers and the law in the country. They have a computer law journal and recently hosted the American Bar Association's first conference on computer crime. They also host the American Bar Association Mock Trial Competition every year.

It's really a relatively small school without the cutthroat competition of places like Harvard or Stanford. On the one hand, this means you'll have a better chance to pick apart the law. On the other hand, it doesn't have the Harvard or Stanford name.

I'm not a lawyer (ironically) and so I don't know what John Marshall's reputation is in the legal world. The ABA seems to like it.

Hope this helps.

John Marshall is basically well known for two things: Trial Advocacy and Computer Law. I think they have one of the first programs dedicated to computers and the law in the country. They have a computer law journal and recently hosted the American Bar Association's first conference on computer crime. They also host the American Bar Association Mock Trial Competition every year.

It's really a relatively small school without the cutthroat competition of places like Harvard or Stanford. On the one hand, this means you'll have a better chance to pick apart the law. On the other hand, it doesn't have the Harvard or Stanford name.

I'm not a lawyer (ironically) and so I don't know what John Marshall's reputation is in the legal world. The ABA seems to like it.

Hope this helps.

First, to answer the poster of this story. The TCPA forbids calling at the callee's expense. From this page:

In addition to prohibiting charges to protect residential privacy, the TCPA and our rules prohibit calls that impose costs on the called party (e.g., calls to paging and cellular numbers, facsimile advertisements).

As well you should. I do not believe the TCPA allows them any time whatsoever. If they hang up and immediately call back, that's their one allowed error for the next twelve months. After that, you can charge them $500 per call.

I also learned that these no call lists are only valid for one year at which time they can opt me right back in

That's not what the TCPA says. This page at the Direct Marketing Assocation says that telemarketers must:

# Maintain a "do not call list" and honor any request to not be called again. When such a request is received, the requester may not be called again on behalf of the business for whom the solicitation is made. One error is allowed in a twelve month period. Subsequently, the soliciting companies are subject to penalties. A person's name must be kept on the "do not call list" indefinitely.

I think the people who call just always try to weasel out of the terms and get you to agree. I try to be verify specific:

• I find out what company is calling me ("We're calling on behalf of Sprint..." "Yes, but what company do you work for?") and say they may not call me again. I keep track of that.
• I say "put me on your do-not-call list" rather than "take me off your list".
• If they say "it will take 30 days", I say "it had better not".

Actually, browsing that Junkbusters site, they have a script for you to keep by the telephone. Looks handy.

This seems to be the Shetland Times case all over again, which was settled rather than fought to the bitter end. The line between fair use and ripoff may be hard to define, but is worth doing if we want reporters and editors to do the work we value.

The good news is he likely won't serve any time.

The bad news is quite bad though. As a felon he is legally barred from many rights full citizens (which he NO LONGER IS in the eyes of the law) have.

It is illegal for him to own a firearm ever again everywhere, (in some states, not his state of Oregon) to ever vote again, and of special interest to people in the I.T. field:

It is illegal for him to work in certain technical jobs ever again. Such as working for a certification authority in at least one State.

Also, a lot of people are under the impression that all felons are intrinsically untrustworthy individuals.

The above still applies even if the persons motives were pure.

P.S. Randal Schwartz would likely have not been convicted if he were in Nevada. The laws here provide for implied authorization of an employee to access employer's systems unless their is "clear and convincing" evidence to the contrary. He still could've been fired though (Nevada is an at will state).

The moral: Don't try to do any favors. If you want to break into systems as a good guy, find a way to do it LEGALLY.

Consult a lawyer for legal advice.

Even if you don't like big corporate money-sucking NSI, it's difficult to feel fuzzy about wanna-be big corporate money-sucking IOD.

For a good primer on Domain Name Disputes, try here. Literally, thousands of pages have been written on this subject. Fifty of them, by me.
Unfortunately, it looks like WIPO is within it's treaty rights. I'm as much in favor of strong IP as the next guy, but WIPO is an adjudicative body pursuant to treaties, which is independant of yet binding on signatory governments. No, I don't like it one bit, personally. Especially since their dispute policy is basically "You tell us the facts, and we'll tell you where to stick them."
First they came for corinthians.com, and I didn't say anything because I don't read scripture. Then they came for Water.com and I didn't say anything because it's not my domain. Now they're coming for Swerdloff.com, and ummm, who the hell but me would want that?

--Tom, Suespammers.org founder

1) This is not 'one of the few cases'! As far as straight (civil) libel goes, existing 'cyberlaw' goes back to the 80's, with mailing lists and BBSs and has definitely been upheld internationally. "international" is important, because you can be sued in jurisdiction where the 'damage' occurs or where the 'victim' resides. Here are some cases/sources:

• Here's a Richmond Law Review (Va.) article suggesting unified approaches to cyber-defamation.
• Here's a Harvard Law Review article on cyberlaw.
• Here's a Georgia State review article of Alabama cyber defamation law (for details and contrast with Utah)
• Blakeley v. Continental Airlines is a 1999 case involving a private company-only BBS
• Rindos v. Hardwick was a famous case where an American was successfully sued in Australian courts for defamation on a e-mail list. [Summary] [Judgement]
• A CyberLibel FAQ -- primarily non-US 'British tradition' (Australia, Canada) useful as a basis for further understanding.
• Here's a 1994 Australian review of Defamation laws in cyberspace.
• Here's a course reading list (with links to cases and other resources embedded in the course outline) for a comparison of in the US and Australia with references to other law (Roman, English, Dutch, etc.) It hits some very relevant points in vey few words.
• Here's a review of British cyber-defamation law (incl. BBS and e-mail)
• Similar US Criminal Libel cases against students have been reported widely in the media for years (names are not cited, because they are minors): [Colorado, 1997 (ACLU) and verdict, 1998]
• Nervous? maybe you should be Here's a (English language, published in Denmark) peer-reviewed law journal article on 'Defamation Havens' ('peer-review' is when articles are reviewed by experts before publication)

2) Do a websearch for "criminal libel" and you'll find that its primary use worldwide, historically and currently is against journalists . One of the 'Inciting Abuses' that contributed to the American Revolution was a (then British) court verdict that a newspaper was guilty of defaming the reputation of the Governer-General of New York by (accurately) revealing his corruption.

• Criminal Libel use.abuse is often cited in the annual US State Department Human Rights reports on each country. [Gabon, 1999]
• In Ireland, journalistic websites get away with a great deal that print journalism can't.

3) To address another of Katz's points, here are mini-case studies in dysfunctional human behaviour on the net

Katz was on my 'exclude list' for a few months, not because I dislike his writing, but because his loose use of facts and analogies leads to a sloppy, infuriating discussion. A profesional writer should investigate his facts and limit his speculation to what those facts support; If he doesn't, the readers will certainly go hogwild. This is the first Katz article I've read in a while. I am not pleased.

1) This is not 'one of the few cases'! As far as straight (civil) libel goes, existing 'cyberlaw' goes back to the 80's, with mailing lists and BBSs and has definitely been upheld internationally. "international" is important, because you can be sued in jurisdiction where the 'damage' occurs or where the 'victim' resides. Here are some cases/sources:

• Here's a Richmond Law Review (Va.) article suggesting unified approaches to cyber-defamation.
• Here's a Harvard Law Review article on cyberlaw.
• Here's a Georgia State review article of Alabama cyber defamation law (for details and contrast with Utah)
• Blakeley v. Continental Airlines is a 1999 case involving a private company-only BBS
• Rindos v. Hardwick was a famous case where an American was successfully sued in Australian courts for defamation on a e-mail list. [Summary] [Judgement]
• A CyberLibel FAQ -- primarily non-US 'British tradition' (Australia, Canada) useful as a basis for further understanding.
• Here's a 1994 Australian review of Defamation laws in cyberspace.
• Here's a course reading list (with links to cases and other resources embedded in the course outline) for a comparison of in the US and Australia with references to other law (Roman, English, Dutch, etc.) It hits some very relevant points in vey few words.
• Here's a review of British cyber-defamation law (incl. BBS and e-mail)
• Similar US Criminal Libel cases against students have been reported widely in the media for years (names are not cited, because they are minors): [Colorado, 1997 (ACLU) and verdict, 1998]
• Nervous? maybe you should be Here's a (English language, published in Denmark) peer-reviewed law journal article on 'Defamation Havens' ('peer-review' is when articles are reviewed by experts before publication)

2) Do a websearch for "criminal libel" and you'll find that its primary use worldwide, historically and currently is against journalists . One of the 'Inciting Abuses' that contributed to the American Revolution was a (then British) court verdict that a newspaper was guilty of defaming the reputation of the Governer-General of New York by (accurately) revealing his corruption.

• Criminal Libel use.abuse is often cited in the annual US State Department Human Rights reports on each country. [Gabon, 1999]
• In Ireland, journalistic websites get away with a great deal that print journalism can't.

3) To address another of Katz's points, here are mini-case studies in dysfunctional human behaviour on the net

Katz was on my 'exclude list' for a few months, not because I dislike his writing, but because his loose use of facts and analogies leads to a sloppy, infuriating discussion. A profesional writer should investigate his facts and limit his speculation to what those facts support; If he doesn't, the readers will certainly go hogwild. This is the first Katz article I've read in a while. I am not pleased.

Yes, you too can find this via Google, but here is a picking of more relevant material:

• Denial of Summary Judgement
• The John Marshall Law School Cyberspace Law Page.
• http://www.richmond.edu/~jolt/v3i1/burhugh.html> RTC v. Netcom article by Burcher & Hughes.
• EFF's own Scientology archive
• Netlaw's final judgement(?)
• netlitigation case summary

What part of "Gestalt" don't you understand?

What I want is something like the WA state law, which allows for a "private right of action" against the spammer. This allows the recipient of the spam, not the ISP, to sue. If the spammer doesn't show up in court to defend itself, a default judgement is entered against it, and the judgement can be sold off to a debt collection agency.

Be careful what you ask for, you might not get exactly what you want. There is legislation at the state level either already enacted or well on its way to becoming law that does provide spam recipients with a right of private action. The only problem is that several of those bills have been watered down by friends of direct marketing interests to allow recovery of only $10/per spam by the recipient or some similarly piddly amount. Hardly worth the recipient's time or effort to try and collect.

For a good review of currently enacted and pending anti-spam legislation at both the state and federal levels, check out the Unsolicited E-mail Statutes subsection of the Cyberspace Law Website hosted by John Marshall Law School in Chicago, maintained by Prof. David Sorkin.

Voice your desire for effective anti-spam legislation at the state and federal levels by contacting via snail mail (not phone, not e-mail) to your state and federal legislators. Find out who your state and federal legislators are and what their views are at Project Vote Smart.

What I want is something like the WA state law, which allows for a "private right of action" against the spammer. This allows the recipient of the spam, not the ISP, to sue. If the spammer doesn't show up in court to defend itself, a default judgement is entered against it, and the judgement can be sold off to a debt collection agency.

Be careful what you ask for, you might not get exactly what you want. There is legislation at the state level either already enacted or well on its way to becoming law that does provide spam recipients with a right of private action. The only problem is that several of those bills have been watered down by friends of direct marketing interests to allow recovery of only $10/per spam by the recipient or some similarly piddly amount. Hardly worth the recipient's time or effort to try and collect.

For a good review of currently enacted and pending anti-spam legislation at both the state and federal levels, check out the Unsolicited E-mail Statutes subsection of the Cyberspace Law Website hosted by John Marshall Law School in Chicago, maintained by Prof. David Sorkin.

Voice your desire for effective anti-spam legislation at the state and federal levels by contacting via snail mail (not phone, not e-mail) to your state and federal legislators. Find out who your state and federal legislators are and what their views are at Project Vote Smart.

What I want is something like the WA state law, which allows for a "private right of action" against the spammer. This allows the recipient of the spam, not the ISP, to sue. If the spammer doesn't show up in court to defend itself, a default judgement is entered against it, and the judgement can be sold off to a debt collection agency.

Be careful what you ask for, you might not get exactly what you want. There is legislation at the state level either already enacted or well on its way to becoming law that does provide spam recipients with a right of private action. The only problem is that several of those bills have been watered down by friends of direct marketing interests to allow recovery of only $10/per spam by the recipient or some similarly piddly amount. Hardly worth the recipient's time or effort to try and collect.

For a good review of currently enacted and pending anti-spam legislation at both the state and federal levels, check out the Unsolicited E-mail Statutes subsection of the Cyberspace Law Website hosted by John Marshall Law School in Chicago, maintained by Prof. David Sorkin.

Voice your desire for effective anti-spam legislation at the state and federal levels by contacting via snail mail (not phone, not e-mail) to your state and federal legislators. Find out who your state and federal legislators are and what their views are at Project Vote Smart.

The Cumulative Cost I keep saying spam is theft; how much does it actually cost? Let's be very conservative. If a single spam message takes only five seconds for a recipient to deal with, and it goes to 10,000,000 people (which is the size of list many spammers claim to have), we're talking around 14,000 person-hours of wasted time. Suppose you've got part-time student help dealing with it at $5/hour: that's $70,000 wasted by one spam message. And many of us charge more than that for our time.

I know I see at least five spams a day, so the total cost of spam would be at least $350,000 a day. Supposing spammers were tasteful enough to only spam on weekdays (ha!), that would come to $87,500,000 in wasted time per year.

Others tell me it takes at least ten seconds to deal with each spam, and they see twelve or even fifty spam messages a day, so the real cost in wasted time could easily be an order of magnitude more than that. We know of one computer vendor who has had an engineer doing nothing but fighting spam for the last six months. That's at minimum $75K in salary and overhead per-person costs. And that's not counting the productivity loss in her not doing the job she was hired to do. Then there are costs such as newsletter articles and mail messages about spam, not to mention legal fees and management time for all this. And we haven't figured in anything for wasted bandwidth, CPU time, or disk space. The total cost of spam is easily in the hundreds of millions of dollars a year.

Still, even though the above dollar estimates are extremely conservative and easy to defend, the number of dollars isn't the main issue. The main issue is that spammers are stealing from recipients and carriers so they can make a shady buck.

Check out this site for a comprehensive list of lawsuits and laws concerning unsolicited email:
http://www.jmls.edu/cyber/index/spam.html


``Our calamities are heightened by reflecting that we furnish the means by which we suffer.''
Thomas Paine, 1776