REPORT #188 Feb 2000

Produced by the Belize Development Trust

To: Jonathan Holt (possibly an alias) [email protected]:

There is a difference between exercising one's freedom of speech to disagree by posting negative comments about tourist establishments on a bulletin board available to the public and waging a campaign of harassment.

If the only thing he did was the former, you have a difference of opinion, and those who disagree may engage him in public debate using that same bulletin board.

Sending huge numbers of messages to those who do not want them is SPAMMING.

Spamming is harassment, and is also a violation of the Yahoo and AOL acceptable use policies.

(Acceptable use policies are posted on the Yahoo and AOL web site, you can read them for yourselves. They are similar to the acceptable use policies of most or all ISP's.)

Denial-of-service attacks (that's what its called when the number of messages is so large that they threaten the ability of the webmaster or host to run the site) are not "free speech," they constitute harassment and also a violate acceptable use policy.

Emailing threats is actually a crime as well as harassment, and certainly a violation of acceptable use policy. By "threat," I do not mean warning of acceptable action ("I will sue you if you don't....etc.") I mean, a statement of intent to do something illegal ("I will send you a computer virus, I will shut down your web site," etc. etc.)

According to Marty Casado, who is one of the mellowest people around and someone with unimpeachable integrity, that is what this person has done. I have no personal knowledge of what happened re the other victims, but if Marty says he knows others who have been similarly harassed, I am sure it is true.

Therefore, we are NOT dealing with freedom of speech, we are dealing with someone who has engaged in tortious conduct (meaning actions for which he could be found civilly liable) and even criminal conduct.

In general, the net has policed itself. However, we are starting to see litigation revolving around internet activity.

Typically, they involve corporations and famous people suing for defamation. These lawsuits usually go nowhere and I don't expect that to change. Criminal prosecutions are usually aimed at hackers who go after financial institutions and government web sites and networks, or people who engage in fraud and con games online.

However, it will not be long before we see conduct of the sort that has been directed at Marty and the other Belizean web sites, begin to result in more litigation, since there is no real difference between someone who launches an electronic assault against a business's electronic "presence" than someone who breaks into a store and vandalizes it. As more lawyers become computer literate and net savvy (lawyers are notorious for being behind the times in that regard), you will see more lawyers taking on such cases, especially when the perpetrator has assets or insurance that can pay damages, and you will begin to see more criminal prosecutions also.

I also predict that ISP's will become more vigilant against this kind of thing. They are not liable for what their subscribers post, but if they have a subscriber who engages in electronic vandalism and they know about it but refuse to take action, they could be held liable. It will rarely happen, because once it is brought to their attention in a way they can relate to (ie, letters from attorneys, etc.) they will certainly suspend the perpetrator's accounts.

I suspect that if they got a letter from me on my business letterhead addressed to their corporate offices (as opposed to an email, to which I received an autoresponse right away), they would begin to take the problem seriously.

Susan Guberman-Garcia, Attorney at Law
Phone: 510-792-2639 Voicemail: 510-405-4016
Fax: 510-405-2016 Email: [email protected]

Thanking Susan for her legal opinion, there are several points necessary for the Government of Belize to consider.

a) What do they do about economic attacks on the general economy of Belize, even though those attacks involve individuals and Belizean businesses on the internet, but are aimed at the country itself? ( e.g.: Reduction of the economy by 30% )

b) What processes and procedures are necessary to trace violaters and cause the cessation of attacks? Belize does not have the capacity to search for internet criminals. The center of the world internet is the USA. What speedy processes would be necessary in a government to government procedure, to trace such people and possibly prosecute, in either country?

c) What laws should be placed on the laws of Belize, to punish such internet criminal predators preying on Belize e-commerce in general and individuals, businesses as injured parties? Under what laws could they be prosecuted in Belize?

* This particular case being discussed, is probably a good example to test and try, processes and procedures, to trace such attacks and discover where the bottlenecks are and how to handle future attacks on the e-commerce of Belize. Only so, can you develop fast response systems for the future.

In that spirit, the information has been handed over to the Cabinet of Belize and the Prime Minister for further action, as they see fit.

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