6 ms·

Does this mean that Austrian ISPs can be prosecuted if their customers use their connections to transmit "content of an illegal nature"? Surely the ISP knows th

by EthanV2 12y ago

Does this mean that Austrian ISPs can be prosecuted if their customers use their connections to transmit "content of an illegal nature"? Surely the ISP knows that some of their customers could use their services for illicit purposes, meaning they're "guilty of complicity" themselves.

wfjackson 12y ago
Perhaps the logic of the court is that the ISPs do no provide essentially anonymous access. ISPs can and do turn over customer info when ordered by courts/law enforcement.
- SnotJockey 12y ago
  But the customer info turned over is not necessarily the guilty party either. If you have free wifi in your cafe now you're responsible for anything illegal your clients do? It's a bad judgement on all counts.
  - pbhjpbhj 12y ago
    Do you really consider it a bad judgement, or would you rather say it's a bad law?
teamhappy 12y ago
For sure. At least in theory. That's always been true though. I don't think Austrian ISPs worry about it to much because precedents don't influence court decisions as much as they do in the US.
phillc73 12y ago
I have a VPS with an Austrian ISP. Their Ts&Cs already state the following are specifically not allowed: Tor/i2p/similar exit servers (bridge, entry and middle are fine until further notice) Last update was Jan 17th, 2014, but this clause has been included for as long as I have been a customer, which is a couple of years. So, I would say at least some Austrian ISPs are aware of the risk.
- devicenull 12y ago
  It's much more likely that they just don't want to deal with the endless stream of DMCA notices that tor exit servers tend to attract.
  - phillc73 12y ago
    Same Ts&Cs have country specific sections (they have server options in multiple countries) and for Austria also says: DMCA is mainly ignored due to being invalid, EUCD is to be followed.
- jdong 12y ago
  Coincidentally the very person who was sentenced here operates the hosting company you're with (edis.at)
esbranson 12y ago
It means absolutely nothing. Austria does not follow the common law doctrine of stare decisis, where each case is bound to follow whatever reasoning is used by a superior court. (Note that "constant jurisprudence" is completely different and is not really binding, since higher court chambers do not have stable composition and as such their reasoning may not be consistent.) A different court is allowed to use completely contrary reasoning and interpretation of "enables or facilitates" ("ermöglicht oder erleichtert") and "intent" ("Vorsatz") in § 12 StGB. The more money you have, the more likely that is. Also keep in mind that sometimes juries composed of short-term politically-appointed local politicians ("lay judges") are used, so that also adds to the complexity. Austria's women and landscapes are beautiful. Austria's legal system, not so much.
- the_mitsuhiko 12y ago
  > Austria's women and landscapes are beautiful. Austria's legal system, not so much. I think our legal system is pretty good to be honest. (Then again, I also pretty much agree with the fact that TOR exit nodes are not compatible with Austrian law.)
  - esbranson 12y ago
    Lets put it this way: If you took American judges and American lawyers and American laws and used Austria's jurisprudence, would the legal system be better or worse than America's? Without juries and without doctrine like stare decisis, IMO, way worse. Its just so sad to see what has happened to Austria's legal system. Austrians lost their right to a jury trial, which AFAIK happened circa 1933-1934 (this should give you a clue as to who benefited/benefits), and Austrians have absolutely no clue they even had it. I think Germany lost their right to a jury trial around 1924. That really wasn't that long ago, given that the jury trial is a Germanic custom. (I mean, its all very POV. Austro-German politicans call it "reform"; I call it "fascism".) Stare decisis is more of a sui generis and extra-statutory mechanism developed in England, so that facet is obviously less surprising.
    - the_mitsuhiko 12y ago
kriro 12y ago
AFAIK, in Germany (I know the article is about Austria but I'd guess their laws are similar) you can be held responsible if something illegal is conducted through your network (usually open WLANs). It's called "Störerhaftung" and is pretty crazy because it essentially means every grandmother has to become a sysadmin of sorts. This is used a lot in film download trials etc. ISPs are explicitly excluded from this and not held responsible.
- shabble 12y ago
  > ISPs are explicitly excluded from this and not held responsible. Time to form a shell company in the ISP business to host your Tor servers, then? Or are there specific requirements that would prevent such a plan (recordkeeping seems like the obvious one)
- rbehrends 12y ago
  A major difference is that "Störerhaftung" is matter of civil liability only, not criminal liability. Moreover, "Störerhaftung" entitles the injured party only to injunctive relief, not to damages (unless, of course, you signed a cease and desist agreement, in which case contractual penalties may apply). "Haftung" (= liability) is thus a bit of a misnomer. Moreover, the current German government is considering legislation to eliminate "Störerhaftung" with respect to unprotected WLAN access. As for: > ISPs are explicitly excluded from this and not held responsible. This is not accurate. The "provider privilege" that ISPs enjoy in Germany only immunizes them against claims involving damages; injured parties can and do request injunctions based on "Störerhaftung" (whether such injunctive relief is granted is another story, especially when the desired injunction is ineffective). In fact, there have been cases where providers have been held to higher standards than private individuals because of their greater expertise (e.g., LG Hamburg 310 O 433/10 [1]). The details are still far from settled law, though. [1] http://openjur.de/u/82969.html http://openjur.de/u/82969.html
- higherpurpose 12y ago
  There was a story about a Retroshare guy from Germany being prosecuted in a similar case, but the Court cleared him.

by EthanV2 12y ago

wfjackson 12y ago

Perhaps the logic of the court is that the ISPs do no provide essentially anonymous access. ISPs can and do turn over customer info when ordered by courts/law enforcement.

SnotJockey 12y ago
But the customer info turned over is not necessarily the guilty party either. If you have free wifi in your cafe now you're responsible for anything illegal your clients do? It's a bad judgement on all counts.
- pbhjpbhj 12y ago
  Do you really consider it a bad judgement, or would you rather say it's a bad law?

teamhappy 12y ago

For sure. At least in theory. That's always been true though. I don't think Austrian ISPs worry about it to much because precedents don't influence court decisions as much as they do in the US.

phillc73 12y ago

I have a VPS with an Austrian ISP. Their Ts&Cs already state the following are specifically not allowed: Tor/i2p/similar exit servers (bridge, entry and middle are fine until further notice) Last update was Jan 17th, 2014, but this clause has been included for as long as I have been a customer, which is a couple of years. So, I would say at least some Austrian ISPs are aware of the risk.

devicenull 12y ago
It's much more likely that they just don't want to deal with the endless stream of DMCA notices that tor exit servers tend to attract.
- phillc73 12y ago
  Same Ts&Cs have country specific sections (they have server options in multiple countries) and for Austria also says: DMCA is mainly ignored due to being invalid, EUCD is to be followed.
jdong 12y ago
Coincidentally the very person who was sentenced here operates the hosting company you're with (edis.at)

esbranson 12y ago

It means absolutely nothing. Austria does not follow the common law doctrine of stare decisis, where each case is bound to follow whatever reasoning is used by a superior court. (Note that "constant jurisprudence" is completely different and is not really binding, since higher court chambers do not have stable composition and as such their reasoning may not be consistent.) A different court is allowed to use completely contrary reasoning and interpretation of "enables or facilitates" ("ermöglicht oder erleichtert") and "intent" ("Vorsatz") in § 12 StGB. The more money you have, the more likely that is. Also keep in mind that sometimes juries composed of short-term politically-appointed local politicians ("lay judges") are used, so that also adds to the complexity. Austria's women and landscapes are beautiful. Austria's legal system, not so much.

the_mitsuhiko 12y ago
> Austria's women and landscapes are beautiful. Austria's legal system, not so much. I think our legal system is pretty good to be honest. (Then again, I also pretty much agree with the fact that TOR exit nodes are not compatible with Austrian law.)
- esbranson 12y ago
  Lets put it this way: If you took American judges and American lawyers and American laws and used Austria's jurisprudence, would the legal system be better or worse than America's? Without juries and without doctrine like stare decisis, IMO, way worse. Its just so sad to see what has happened to Austria's legal system. Austrians lost their right to a jury trial, which AFAIK happened circa 1933-1934 (this should give you a clue as to who benefited/benefits), and Austrians have absolutely no clue they even had it. I think Germany lost their right to a jury trial around 1924. That really wasn't that long ago, given that the jury trial is a Germanic custom. (I mean, its all very POV. Austro-German politicans call it "reform"; I call it "fascism".) Stare decisis is more of a sui generis and extra-statutory mechanism developed in England, so that facet is obviously less surprising.
  - the_mitsuhiko 12y ago

kriro 12y ago

AFAIK, in Germany (I know the article is about Austria but I'd guess their laws are similar) you can be held responsible if something illegal is conducted through your network (usually open WLANs). It's called "Störerhaftung" and is pretty crazy because it essentially means every grandmother has to become a sysadmin of sorts. This is used a lot in film download trials etc. ISPs are explicitly excluded from this and not held responsible.

shabble 12y ago
> ISPs are explicitly excluded from this and not held responsible. Time to form a shell company in the ISP business to host your Tor servers, then? Or are there specific requirements that would prevent such a plan (recordkeeping seems like the obvious one)
rbehrends 12y ago
A major difference is that "Störerhaftung" is matter of civil liability only, not criminal liability. Moreover, "Störerhaftung" entitles the injured party only to injunctive relief, not to damages (unless, of course, you signed a cease and desist agreement, in which case contractual penalties may apply). "Haftung" (= liability) is thus a bit of a misnomer. Moreover, the current German government is considering legislation to eliminate "Störerhaftung" with respect to unprotected WLAN access. As for: > ISPs are explicitly excluded from this and not held responsible. This is not accurate. The "provider privilege" that ISPs enjoy in Germany only immunizes them against claims involving damages; injured parties can and do request injunctions based on "Störerhaftung" (whether such injunctive relief is granted is another story, especially when the desired injunction is ineffective). In fact, there have been cases where providers have been held to higher standards than private individuals because of their greater expertise (e.g., LG Hamburg 310 O 433/10 [1]). The details are still far from settled law, though. [1] http://openjur.de/u/82969.html http://openjur.de/u/82969.html
higherpurpose 12y ago
There was a story about a Retroshare guy from Germany being prosecuted in a similar case, but the Court cleared him.