dave@utcsrgv.UUCP (Dave Sherman) (11/14/83)
"Keremath, care of Robison" (eosp1!robison) makes some good points. >>>First: >>>It is not "Canadians" who must observe this law; it is people under >>>the jurisdisction of canadian law, which certainly includes non- >>>Canadians living in Canada. Of course you're right. I was being loose with language, as we all are at times (but lawyers are not supposed to be). >>>Second: >>>The apologies and comments that certain groups should not be offended, >>>taken in context with other net mail, may conceivably constitute a >>>defense that the offensive material is being presented to point out, >>>and alleviate, the hatred, as specified within the law. You may be right. I never suggested that defenses might not be available. >>>Third: >>>If a legal action is taken on a piece of net mail, the questions >>>of jurisdiction and culpability would be very interesting. WHERE did >>>the crime take place, if the netmail originated in the US and then >>>entered Canada? Who committed the crime? Is it the person who >>>enabled UNIX communications to bring the item into canada over the >>>net? The system engineer on the entrypoint system who should have >>>censored the net news? The author? Well, I didn't want the original article to get too long, so I left out a section which relates to this: 281.2. (5) Subsections 181(6) and (7) apply mutatis mutandis to ... this section. 181. (6) Nothing in this section ... authorizes the seizure, forfeiture or destruction of telephone, telegraph or other communications facilities or equipment that may be evidence of or may have been used in the commission of an offence ... and that is owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of such a person. (7) Subsection (6) does not apply to prohibit the seizure, for use as evidence, of any facility of equipment described in that subsection that is designed or adapted to record a communication. Now I don't think the exception in s. 181(6) works for Usenet for several reasons: (a) the service provided by Usenet is not "to the public". (If you read the words carefully, though, there's a bug: computers owned by AT&T or Bell would appear to be OK, since they are "owned by a person engaged in...") (b) the computers involved are much more that "communications facilities". They also store, and continue to store, the offensive material. But a very good argument could be made that the intent of s. 181(6) is clearly to exclude from liability organizations and administrators who are merely involved in the global transmission of Usenet articles. In practice, of course, system administrators are not likely to be charged anyway. The legislation is rarely invoked, in fact. Dave Sherman The Law Society of Upper Canada Toronto -- {allegra,cornell,decvax,ihnp4,linus,utzoo}!utcsrgv!dave