Schneier on Security

Clive Robinson • October 14, 2021 1:58 AM

@ lurker,

The police take care of legal problems.

Actually no they do not, that is not their job, it’s the job of the judiciary.

Which brings us onto,

… a Court of Law should not judge [CloudFlare’s] failure to uphold them.

That is exactly what a court is for, be it a breach of a private or public duty.

There is a very good reason why there exists the very special status of “common carrier” that was held by both the postal and telephone and telegraphy carriers in the past. Something that the more recent CDA §230 does not cover[1].

And Cloudflare as far as I am aware does not have “common carrier” status.

Cloudflare was informed that the pictures they were holding in their cache were covered by copyright by the holder of the copyright. Further that the pictures were being used to breach not just the copyright, but to “pass off” and trade in contravention of Federal law.

No matter how you argue it, Cloudflare were informed that they were breaching a private duty in a public way and did not do what the law required of them which was to cease and desist.

Cloudflare’s attitude was to ignore their flagrant breach of duties both private and public. Which are down entirely to their ethics and morals as they do not have a defence of “ignorance” as they had been repeatedly informed. Nor do they have the protection of “common carrier” status.

Cloudfare has a history of very questionable ethics and morals, and this just adds to the list.

[1] See section “(e)” and in this case subsections 1 and 2,

https://www.law.cornell.edu/uscode/text/47/230

Oh and also remember the definitions of “obscene” and “harassing” are not defined thus fall under the axiom of “you know it when you see it” which in turn falls under a “Point of View” argument. I suspect that someone who considers their property being repeatedly stolen would claim it was harassing behaviour, further that anyone who willfully aided or abeted such behaviour despite being repeatedly told was also exhibiting willfully harassing behaviour.

Clive Robinson • October 14, 2021 3:05 PM

@ Bufford,

misuse of their services can’t be unexpected after “the left” fought so hard to open up frivolous suits against gun makers

Dear “Deity of choice”, talk about “Revisionist History”.

The “If there is blaim there is a claim” tactics started so long ago in the US that it is probably lost in some dust archive.

The fast food industry got hit with it so often legislatiob was brought in.

Likewise the auto accident “whiplash claims”.

The reason is the basic way the US legal system operates and it has been that way for so long and so badly that rather than fix the problem, legislators do what they do best bring in nulification legislation that geberally is way to broad in scope.

Clive Robinson • October 15, 2021 1:34 AM

@ SpaceLifeForm,

Section 230 is not broken

Actually it is, but for other reasons than the political nonsense going on currently.

The real problem is “humans” and worse the “assumptions” made about them, which gives rise to such legislation that is “gamable” by people seen as undesirable for reasons that are not algorithmically definable or measurable, and never will be because they are matters of opinion from a point of view, wgich is individual.

For instance I have certain dislikes for colour combinations such as particular shades of pink next to certain shades of iridescent green. Other people find it an attractive combination even exciting.

Now if I was alowed to sue over my personal dislike/iritation by calling it a “harm” then others could do similar. And it would not be long before we were back to “black and white” era or worse.

But unlike the DoJ with it’s case against Apple[1], I would not go after the “big guns” who have large “war chests” and “troops of lawyers” to fight off such actions. No I’d go after those that were not to small but not to big. That is big enough to attract attention but small enough that they can not easily defend themselves.

It’s time politicians grew up and realised that whilst technology can give pretty toys, it can not solve social issues.

Likewise legislation is a tool, and it has limitations, and there are things it can not fix. But worse it can turn social issues into games which in effect create a “faux market” which will make lawyers rich and inhibit inovation.

But it also works in the opposite way.

In the UK we have a public broadcaster the BBC that had –note past tense– a solid reputation for impartiality and fair reporting, that certain politicians did not like. So as the politicians could change the rules under which the BBC worked they did. The trick they pulled on the face of it sounds laudable in that it required balance in reporting… Thus the effect was to give equal air time to very very minority opinions and extreamist political views.

The US legal system fundamentally sufferes from the same problem hence the ages old cultures of “ambulance chasing” and “where there is a blaim there is a claim” legal cases. Basically the system gets gamed by a minority and causes way greater harms to society.

The solution is not to bring out further open scope legislation because that just perpetuates the problem by opening up a different set of games. The solution is to in part fine tune the existing system but in the main just let society solve the problem by “moving on”.

But the Internet is without a doubt a problem as it removes the limitations of “locality” which is something mankind has not realy got to grips with.

As I’ve noted before in the tangible physical world “distance costs” and this is a very effective equaliser economically as it alows competition. The fundemental reason we have these big Silicon Valley Corps that are causing so many issues is that without a distance limiting cost there can be no equitable market.

Worse it has similar effects on society because it alows “reputation” to be removed from social interactions. Reputation mainly acts as a break or inhibitor on extream views and opinions and they tend to get “starved out”. However there are always a certain small percentage of people with extream opinions where ever you go. The removal of “distance costs” alows them to not just group together but actually become more extream as they struggle to be the dominant voice, hence the “echo chambers”.

Fixing the distance cost issue whilst limiting the harms of extreamism also inflicts a far greater “opportunity cost” on society so is not the fix.

Similarly with technological “reputation systems”.

Just about any “measure” I can think of almost always has a greater cost to society than benifit. So what the actual solution is I don’t know, nor do I think anyone else does. But the one thing I do know is “quick fixes” for political reasons by the use of technology or legislation WILL without doubt cause considerably more harm.

If you like call it “The curse of ‘unintended consequences'”. Or a variation on an old saying “The road to hell is paved with political fixes”.

[1] I won’t say that the FBI/DoJ were stupid to go after Apple in the way they did, because I think they were completely and uterly reckless, and had no contingency planning about what to do if Apple did not “roll over”. Like a bunch of criminal psychopaths they had no concept of their plans going wrong.