[Asrg] Round 2 of the DNSBL BCP - "collateral damage"

[Chris Lewis]

Seth wrote:
> Rich Kulawiec <rsk at gsp.org> wrote:
> 
>> Let me also note (continuing earlier analogy) that if you knock
>> on my door to request entry, or send me a letter that you want
>> me to read, or ask for http://www.example.com/private.html, and
>> in all cases, I decline your requests, that is not libel.
> 
> Or, you knock on my door, and I explain "my astrologer recommended
> that I not admit anybody wearing a red shirt" there's still no libel.

The latter is not really an analogy for the situation.

More like:

You knock on my door, and I explain "my astrologer recommended that I 
not admit anybody that cross-dresses in their bedroom.  And he says that 
you cross-dress.".

If the astrologer's assertion is untrue, that _can_ be actionable libel, 
but there are several other things you'd have to prove before you'd win 
such a case.  You'd probably have to get past the notion that I don't 
have to give any reason to bar you, hence the truth or falsity of my 
reasoning is irrelevant. Whether that same reasoning would apply to an 
ISP I dunno, because it's not a one-to-one situation.  It'd certainly be 
argued that it does.  Comcast is in e360 v. Comcast.

I think the CDA protections would apply in any event, so it's moot as 
per the ISP.

As for the lister...  This is why we said this:

In other words, be direct and honest and clear about the listing
criteria, and make certain that only entries meeting the published
criteria are added to the list.  For example, some DNSBL operators
have been known to include "spite listings" in the lists they
administer -- listings of IP addresses or domain names associated
with someone who has insulted them, rather than actually violating
the published criteria for inclusion in the list.
There is nothing inherently wrong with this practice so long as it
is clearly disclosed.  For example, a DNSBL described as listing open
relays only MUST NOT include IP addresses for any other reason.

The above may sound like an imposition on the DNSBL operator.  On the 
contrary, by following it, they avoid getting into certain types of 
legal difficulties.