From: security curmudgeon (jericho[at]attrition.org)
To: "John Berryhill Ph.D. J.D." (john@johnberryhill.com)
Cc: Bastards (staff[at]attrition.org)
Date: Tue, 19 Sep 2000 00:35:29 -0600 (MDT)
Subject: Re: Polite Request


: I'm sure you can handle it.  You have made it obvious that you are
: maintaining my name and other information in that context for reasons
: other than archival integrity. 

If you'd like to think so.. go ahead. We have made it clear that we are
archiving it. We are not distributing it as you claim. I have explained my
stance, removed your pager number (even tho public on your page), credit
card number, and left your very public address.

: Why bother?  You can let the judgment go to default in PA and then
: challenge jurisdiction when enforcement is attempted.  You will not have
: the opportunity to address the merits in that strategy.  But since you
: are so clearly smarter than I am and more well-informed about the law
: than I am, what have you got to lose? 

This is a truly excellent question. Lets examine...

1) We passed some of your comments through our attorney.
   a) the "long arm statue" does not apply in that we did not enter into a
      business arrangement with you. We did not enter Pennsylvania to
      conduct business with you, therefore we did not automatically assign
      the Secretary of State as the agent of process, therefore, you can't
      file on us in Pennsylvania under the previous statement. 

   b) In normal circumstances, the US District court would have no
      jurisdication over us. You would have to file the case in Arizona.
      You can file in Philly, have us served, and we would ask for
      dismissal on the grounds that the Philly court has no jurisdiction.
      We would not let this go to default. The only issue our lawyer had
      was that since the Internet was involved, the court might assert
      jurisdiction, but that would be up to the judge.  There simply is
      not enough case history to make an assertion one way or the other.

   c) The language used on the web page is not libelous per se. However,
      if we were to say it was for argument sake, then proving defamation
      in court means you have the burden of proof of showing intent. The
      attrition mirror is a repository of hacked/defaced web pages, used
      by security professionals and government agencies. The pages contain
      no original content from attrition, but merely contain the actual
      defaced page. When we run across illegal information (e.g. credit
      card #'s), we remove the information (You'll remember that we took
      it down when we found out it was there. We did not publish this
      material, but merely stored a copy of publicly available material.
      We did not act in the capacity of a republisher. You have absolutely no
      grounds to show intent on our part that we defamed you, assuming you
      could prove the content of the page was libelous per se. It appears
      to us and our attorney that the page contained the ranting opinions
      of a warped mind, not libelous information.

2) Now, to answer your question as to what we have to lose, the answer is
relatively nothing. We are an organization that provides a service free of
charge to the web community at large, and all the people who work on the
site do so freely. You could try to sue attrition, but you wouldn't get
very much. Now, as to what YOU could lose:

We think and our lawyer thinks that your suit is frivilous. If you chose
to bring suit against us, not only will we ask for a dismissal (which we
are confident that we will get), we will also ask the judge to sanction
you for abusing your power as an officer of the court. We would ask the
judge to pull your license, such that you would no longer be able to argue
cases before the Federal courts, to fine you, and to ask for attornys
fees. We would also send letters to the ethics panel of every bar
association you are a member of and ask them to sanction you for abusing
your power as an officer of the court, and ask those associations to
sanction you, pressing for your disbarrment as an attorney.

Now, as we have laid this out, is it really worth continuing this pissing
match when we have already removed your CC# and Pager # and have showed
you that the address is a matter of public record (see InterNic record),
or would you rather pursue this and risk losing your law practice?

The choice is yours.

Brian Martin