41–50 of 149 posts
It seems, in many countries, the knowledge and the acknowledgement of technical facts is very much lacking, both in legislative authorities and in courts.
I interpret this as a direct malice against myself.
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.
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 n…
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.
Earlier quoted context omitted.
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 complet…
> 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.)
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.
It seems, in many countries, the knowledge and the acknowledgement of technical facts is very much lacking, both in legislative authorities and in courts.
Earlier quoted context omitted.
Came here and to post this too. It's really a shame how the current system of law enforcement is designed to destroy completely destroy people. I'm idling in some of the same public IRC channels as will (since way before he was raided for running a TOR node) it was/is painful to watch how this completely destroyed him. It has really put me off, and probably many others, from ever hosting a TOR node, which might what…
Unfortunately this hasn't been the first case like that and it probably won't be the last one either. Saying they destroy peoples lives on purpose isn't fair though. Everybody setting up an exit node knows there's some chance the police will knock on your door one day or at the very least you'll end up getting a lot of letters. Projects like https://www.torservers.net exist for that very reason. I understand donating…
Everyone knows it might happen, therefore it doesn't happen? I don't get how the rest of your comment supports this statement.
I live in Austria, used to ran a TOR relay and this worries me deeply. I am unsure what to do.
@mahouse: Yes. Exit nodes only.
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.
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 complet…
In general, lower courts are still going to follow the superior courts, or they will simply be overturned on appeal. And if a judgement is reversed by an appeals court, the lower court is generally bound by the legal findings of the appeals court (e.g. §511 ZPO [1]), so it's not as though they can evade review. In practice, there is actually relatively little difference between common law and civil law jurisdiction these days with respect to precedent.
Not to mention that in this case this is the judgement of a regional court, which could not possibly be binding outside its region even in a common law country.
> 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.
Lay justices and jurors in Austria are selected randomly from the electoral register. See §5 GschwG [2]. This is different from the procedure in other countries, where lay judges are commonly volunteers.
[1] http://www.jusline.at/511_ZPO.html
[2] http://www.jusline.at/5._Verfahren_der_Gemeinden_GschG.html
Earlier quoted context omitted.
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 complet…
> 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. In general, lower courts are still going to follow the superior courts, or they will simply be overturned on appeal. And if a judgement is reversed by an appeals court, the lower court is generally bound by the legal findings of the a…
That's true. Until its not.
> or they will simply be overturned on appeal
Unless its an entirely different chamber. Is any given chamber even static in composition, or is it dynamic? I admit I don't know (i.e. I have no clue) how appellate panels are chosen. But if even a given appellate chamber is never static, then it may or may not be overturned, depending on that chamber's judges' and whether their opinions are different from a previous composition of the chamber.
> if a judgement is reversed by an appeals court
That's a very big "if" given that there is no stare decisis and a possibly dynamic appellate court composition.
> there is actually relatively little difference
Stare decisis forms after a single opinion. "Constant jurisprudence" forms after ... it forms after judges say it forms. Or something.
> could not possibly be binding outside its region even in a common law country
In California and New York at least (thats like 60 million people) there is no regional appeals court. The appeals court forms a single court, and its opinions are binding throughout the state. California and New York are themselves sovereign states, not regions. (Which is why you can, e.g., commit treason against a state. They also have their own militaries, e.g., "state defense forces", separate from the so-called National Guard.)
> Lay justices and jurors in Austria are selected randomly from the electoral register.
I did not know that. Now I'm glad I brought it up. Thank you. Sweden and Germany could learn something there IMO.
Earlier quoted context omitted.
Came here and to post this too. It's really a shame how the current system of law enforcement is designed to destroy completely destroy people. I'm idling in some of the same public IRC channels as will (since way before he was raided for running a TOR node) it was/is painful to watch how this completely destroyed him. It has really put me off, and probably many others, from ever hosting a TOR node, which might what…
Unfortunately this hasn't been the first case like that and it probably won't be the last one either. Saying they destroy peoples lives on purpose isn't fair though. Everybody setting up an exit node knows there's some chance the police will knock on your door one day or at the very least you'll end up getting a lot of letters. Projects like https://www.torservers.net exist for that very reason. I understand donating…
It should be underscored that unless you have access to unlimited good, free legal help, you probably have no business running an exit node, and you should have that good, free lawyer make sure that the laws in your jurisdiction are Tor-friendly, as some places have been passing laws that hold the IP's owner responsible for all activity, regardless of excuses ("open wifi" doesn't fly either).
The sad part is that this means Tor exit nodes will continue to be primarily the province of large organizations who are more likely to be in cahoots with ruling authorities, which weakens the strength of the network for everyone.