On 6 Sep 2016, at 1:04, Aaron C. de Bruyn wrote:
Anyways, I thought there was a court case back in mid-90s where
Compuserve
or Prodigy or something was ruled to not be responsible for content
flowing
through their networks as they are simply the conduit.
Cubby v. CompuServe and Stratton Oakmont v. Prodigy are probably what
you half-recall.
They were nuanced enough (or if you prefer: contradictory enough) that
Congress felt compelled to pass a series of not-very-good laws like CDA,
COPA, COPPA, CIPA, DMCA, and CAN-SPAM to clarify. Yeah, not so much...
Anyway, I'm no lawyer and so can't give legal advice (but – funny
story – I was very briefly sued for supposedly doing so) so take this
for what it's worth. Note that those 2 cases were civil defamation suits
because under US law it is really rather hard to publish anything in any
medium that runs afoul of criminal law to a degree that the government
will act. So when talking about legalities related to spam you're
discussing mostly civil fraud or libel, both of which demand a specific
victim with real damages.
In short: US case law and US statutory law are both essentially
irrelevant. It is not a question of whether CloudFlare is on sound legal
ground under US law, it's a question of whether they are wrong in their
actions. If you can't see the difference there, I can't help.
Wouldn't that apply
to something like CloudFlare?
CloudFlare seems to be architected to assure that their services present
jurisdictional challenges, so that's a layered question, but let's
stipulate that CloudFlare is always entirely under US jurisdiction.
The situation left by the two cited cases was a big fat headache.
Prodigy was liable, CompuServe not, and there was a rather subtle (or
perverse, if you prefer...) rationale for the difference. No higher
court ever had a chance to unify that subtlety or establish a clear
rational standard. As a result, later statutes almost all provided "safe
harbor" provisions for ISPs that didn't quite make them common carriers
(which they didn't actually want) but also gave them easy ways to avoid
liability by acting in "good faith." Eventual case law has essentially
made those provisions accessible to anyone providing any sort of service
online. THOSE are the legal details that really protect a hypothetical
CloudFlare that is fully under US jurisdiction.
Note that this is also why mail system operators in the US can't be
legally held to any sort of performance standard for mitigating the flow
of spam through their systems as long as they don't overtly promote or
protect blatantly illegal spam. I expect all the mailops who claim "you
can't avoid sending out SOME spam" are glad for that protection.
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