[Air-L] More on the change

Gilbert B. Rodman gbrodman at mindspring.com
Tue May 12 11:32:45 PDT 2009

Hi, Charles and co. --

Let me see if I get this straight.  The Exec is worried about the
1-in-10,000 chance (Charles' 0.01% figure) that someone will take
umbrage at a posting in the list's archive, become litigious, attempt to
sue AoIR, and wind up doing the organization great damage.  And to meet
this hypothetical threat, the Exec has decided ... to change the
listserv settings so that keeping a conversation going onlist requires a
small amount of extra effort.

Assuming that the hypothetical threat is grave enough to bother with
(I'm not so sure I buy that assumption, but let's roll with it for a
moment), the solution offered is ... well ... not much of one. 
Partially because, as Charles admits, the fear here is already centered
on an unlikely and irrational course of action by an unusually
aggressive (and still imaginary) person. 

But mostly because what's at the core of the threat in question -- i.e.,
legal action (however irrational) against AoIR in response to something
in the listserv's archives -- isn't actually addressed very well by
changing the listserv's technical settings.  If we're going to protect
ourselves against imaginary lawsuits, misdirected private messages
should be the least of our worries.  What about authors who claim that
unfavorable onlist comments about their work are defamatory?  Businesses
who claim that messages posted using their employees' work email
accounts are the intellectual property of the businesses in question,
and that AoIR doesn't have the legal right to archive them without
formal permission?  Media organizations who claim that onlist
discussions of filesharing networks somehow "aid and abet" copyright
infringement?  Etc.  To be sure, most of those sound (at least to my
non-lawyerly ears) like frivolous suits that would probably get laughed
out of any self-respecting court of law ... but the same could be said
for the legal action the Exec seems to be worried about anyway.  And
none of those imaginary lawsuits revolve around a distinction between
private and public messages.

Put another way, if the Exec is going to get all bent out of shape
because someone might sue AoIR for something that happens on the
listserv, then changing the "reply-to:" field for the listserv is a
pretty lame solution to that problem.  Disable the archives completely. 
Make the list fully moderated (presumably by hyper-sensitive attorneys
well versed in international law).  I'm NOT convinced that the threat
involved is serious or grave enough to merit extra precautions of any
sort ... but if we're going to treat that threat as if it really were
that serious, then we should follow through with appropriate rigor. 
Otherwise, we're just engaging in the listserv equivalent of the sort of
"security theatre" that's become the norm at airports: take off your
shoes, show us your shampoo -- and we'll all pretend that this is best
way to keep planes from being hijacked.


Charles Ess wrote:
>  My worry is about the .01% (including an infamous example from a few years
> ago) who might use such an episode as the occasion to attempt to inflict
> real damage on the organization when discovering that, contrary to Jeremy's
> assurances, we are unable to persuade / bribe Dreamhost into deleting
> problematic postings.

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