On Tue, 18 May 2004, Harald Tveit Alvestrand wrote:
After re-checking with legal counsel, I repeat what I said before, trying
to be as clear as possible:
Bouncing a message to the sender is NOT public defamation.
Not by itself, no. But that isn't the whole story of what happened. It is
always a bad thing to mislead your counsel as to the facts. This is
typically the case though, unfortunately, having been though it before.
People tend to put their own "spin" on the tale they tell their counsel,
leaving out a lot of important details. Later, those details are
provided--that's the beauty of the legal process.
Here's a quick summary:
After becoming aware of defamatory comments being made by ISC.ORG
participants who were using 'harrassment by computer' techniques to
automatically send or began to send messages to all Av8 Internet customers
who participate in the IETF. Unsuspecting Av8 Internet customers who
partipated in the IETF and who sent mail in response to ISC.ORG messages
involving IETF business were automatically sent these harrassing,
defamatory, and disparaging messages. These ISC.ORG participants
eventually included IETF representatives. The harrassing computer
response messages falsely claimed that Av8 Internet's IP Address space was
hijacked.
I was then forced to forward the defamatory messages to the IETF and DNSOP
lists in order to make a complaint. This forced republication is the
legal responsiblity of the original sender: Paul Vixie, Joe Abley, and Rob
Austein and possibly involving ISC and SORBS depending on as yet unknown
relationships between them. Rob Austein was an IETF representative acting
on behalf of the IETF. I note that while 47 USC 230 provides a fairly
general protection against defamation by electronic republishing, it only
provides that protection to those who are behaving consistently with its
stated policy, and has no effect on law (eg defamation claims) that is
consistent with its policy. Its policy is to _prevent_ harrassment by
computer, and so, in this case, it provides no protection to the IETF with
respect to republishing harrassment by computer.
Further, the message from Mr Austein was involving IETF business, and from
an IETF representative, direct IETF speech to customers of Av8 Internet
for which the IETF is legally responsible, and for which I was also forced
to republish to the appropriate IETF lists in order to make a complaint.
The message in question came from Mr. Austein and was with his permission
and knowledge (otherwise there would be an ECPA violation). Mr. Austein
is clearly participating in defamatory and harrassing conduct, of the very
sort that 47 USC 230 expects as policy to prohibit. (see 47 USC 230
(b)(5)).
47 USC 230 (d)(3) specifies that the statute doesn't affect any state law
that is consistent with this statute. Therefore, it can't be used in
against the stated policy as stated in section (b) of the statute. I
don't think 47 USC 230 can be used to completely disable every defamation
claim. It will only disable those claims that are inconsistent with the
stated policy in Section (b). However, the 47 USC 230 exemption does not
apply to Mr. Austein's, Mr. Bush's, or Mr. Alvestrand's comments, since
those comments were on behalf of the IETF, and so the IETF is the original
publisher of those comments.
Then there is the defamatory and disparaging statements made by Randy
Bush, in his role as WG chair. That was not even a bounce, as you
apparently described it to your counsel. Yet it is still disparaging.
Again, the IETF is the original publisher, and these commets are the legal
responsibility of the IETF.
Recently, Paul Vixie sent another disparaging ad hominem attack to the
IETF list, disparaging Dean Anderson, and by implication, Av8 Internet.
A complaint was again made to Mr. Alvestrand, the IETF chairman. Instead
of chastising Mr. Vixie, Mr Alvestrand chastised Dean Anderson for his
characterization of Mr. Vixie's ad hominem as 'infantile, irresponsible
and immature'. That is a fair description of any ad hominem attack, and is
a fair description of Mr. Vixie's ad hominem attack. Mr. Alvestrand's
unreasonable behavior in this incident reveals his latent hostility to
Dean Anderson and Av8 Internet, which adds further substance to the claim
that the IETF has, inter alia, defamed and commercially disparaged Av8
Internet.
Mr. Austein's and hence the IETF's participation in a group boycott known
as the SORBS list, which is supported and promoted by ISC, is unlawful and
a violation of, inter alia, the Sherman Act.
Therefore, your complaint about "defamation" has no merit.
Dean, I believe that:
- your complaint about the apparently incorrect ownership listing of AV8's
address space is with ARIN
ARIN has nothing to do with this. ARIN has done nothing wrong, and neither
has Av8. There is no incorrect ownership listing by ARIN. Your false claim
is an original false claim by the IETF that many would interpret as
stating a fact. This is itself defamatory since it is false and suggests
that either ARIN or Av8 Internet has done something wrong or that there is
an incorrect ownership listing. The IETF has again directly made false and
defamatory statements. These are also not "bounces" as you apparently
described them to your counsel.
- your complaint about the listing of this address space with SORBS is with
SORBS
- your complaint about ISC's use of SORBS is with ISC
And the ISC is run by Paul Vixie, who has just posted his own abusive and
inappropriate comments, which I note that Mr. Alvestrand failed to
chastise, but instead chastised our complaint. Our only involvement with
the ISC and Mr. Vixie is through the IETF. Mr. Vixie's abuse is directly
and very nearly exclusively in the IETF. Mr. Alvestrand has now made the
false, defamatory, and disparaging statement that there is some incorrect
ownership listing in the ARIN records. That is also not a "bounce" as you
apparently described it to your counsel.
None of these are issues that the IETF can solve for you. They are not
matters that are relevant to the IETF list.
Another false (but not defamatory) statement. There are a number of things
the IETF can do, and is morally obligated (and perhaps legally obligated)
by the IETF and ISOC Code of Conduct, and the IETF Mission Statement:
1) The IETF can publicly tell Mr Vixie to stop its harrassment by
computer of Av8 Internet.
2) In response to Mr. Vixie efforts in trying to use the IETF lists to use
harrassment by computer techniques to tell Av8 Internet and its customers
that they should change their email addresses, the IETF can tell Mr. Vixie
to use different addresses on the IETF lists. Mr. Abley readily
acknowledged that he routinely uses other addresses. It is clear that Mr.
Austein also has other email addresses.
3) The IETF can tell Mr. Austein that he must accept email from _all_ IETF
participants in his role as an IETF Working Group Chair.
4) The IETF can stop participating in unlawful group boycotts in violation
of the Sherman Act.
5) The IETF can stop making original defamatory and commercially
disparaging statements against Av8 Internet.
6) The IETF can apologize for its past abuses of Av8 Internet and others.
7) The IETF can renounce its unfair and unequal relationship with Paul
Vixie and ISC.ORG which is in violation of its Mission Statement.
These are not unreasonable requests.
Take care.
Harald Alvestrand
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