Re: William was raided for running a Tor exit node. Please help if you can.

[Miles Fidelman <mfidelman () meetinghouse net>]

Michael Froomkin - U.Miami School of Law wrote:
> > 2. If I provide access to four or five friends, I am not an ISP and in
> > fact I am responsible if they use my connection to do something illegal
> > since I am the customer of record.  If you loan your car to an
> > unlicensed driver and he kills someone, you are on the hook.
>
> The key word above is "unlicensed".  And the other key word -- not 
> present -- is "knowingly".  But the analogy breaks down because you 
> don't need a license to use the Internet.  Consequently, in most cases 
> you will not know, and cannot reasonably be expected to know, about 
> legal violations.   If you let your buddy use your home wireless while 
> he's staying with you for the weekend, and he commits, say, a fraud, 
> or blackmails someone, you are not legally responsible for any of it 
> unless you participated knowingly in some way.  Of course, that you 
> didn't know may be hard and expensive and unpleasant to try to prove, 
> but that's a different question.

Ummm... you might be liable under your service agreement with your ISP.  
Most of these have all kinds of restrictive clauses re. not letting 
others use your connection, copyright infringement, assumption of 
liability, yada, yada, yada.  We all violate these, all the time, but 
there are times when that might catch up with someone.
> The term "criminally negligent" really has no role here. Negligence is 
> in most cases a civil not a criminal offense.  There are specific 
> crimes. There is aiding and abetting.  There may be criminal 
> negligence in unrelated cases where you have a duty to secure 
> something or protect (or not harm) someone and fail to do so (e.g. you 
> leave your car in a position to roll downhill and it hurts someone, or 
> you are willfully blind to a danger to child for whom you should be 
> caring, or you act with such inattention so as to kill someone).  But 
> in the USA ***you have no legal duty to secure your wireless***.  
> None.  You can leave it open, just as you can leave your window open 
> and let people enjoy what you are playing on your stereo (modulo 
> public nuisance law, and copyright rules against some types of 
> unlicensed public performance).  Thus there can be no negligence in 
> leaving it open, at least absent specific knowledge that a person 
> intends to do a specific thing.

You may have a civil liability to secure your wireless under the 
terms-of-service agreement with your Internet provider.  Well, maybe not 
to "secure your wireless" but to prevent unauthorized use of your 
connection to the service provider - which could be accomplished in 
other ways.

Miles Fidelman



--
In theory, there is no difference between theory and practice.
In practice, there is.   .... Yogi Berra