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Internet relay op convicted for child porn

Published: 05 Jul 2014 11:47 GMT+02:00

William W. was charged in November 2013 after police raided his home, confiscating 20 computers and assorted game consoles and Internet devices such as tablets and cell phones.

The 22-year-old defendant - who has been publicly identified in international media and court documents - was found guilty on July 1st by the regional criminal court in Graz, and was sentenced to three years of probation, as well as being required to pay €30,000 in court costs and legal fees.

The court imposed a reduced sentence, because the man waived his right to appeal.

The allegations against the man were that he operated a technical mechanism that made it possible for anonymous persons elsewhere on the Internet to conduct illegal activities - such as accessing and distributing illegal child-pornography - and that he knew it 'could' be used for such purposes.

In his defense, the IT administrator compared himself to a post office - it delivers letters, but is not responsible for the contents of those letters, because the envelopes are never opened.

The court ruled that knowledge that such an anonymous relay - known as a Tor exit node - could be used for illegal activities was sufficient for him to be convicted under section 12 of the StGB (Strafgezetzbuch) - which states that a person is legally responsible when "Not only the immediate offender commits the offense, but also anyone who intended another to carry it out, or otherwise contributes to the completion of said criminal action."

The prosecution argued that the defendant demonstrated a clear knowledge that such an anonymizing relay was likely to be used to commit such offenses, and therefore by operating the node, he was failing to prevent them - or "otherwise contributing to the completion of said criminal action."

This knowledge was based on Internet posts, where the man acknowledged that he was aware of such use. He wrote on his personal blog that the chat conversations, although real, were taken out of context.  He said “I recommended Tor to host anything anonymously, including child pornography.”  

The defendant is now facing bankruptcy, and was hospitalized with an apparently wrongly-diagnosed case of paranoid schizophrenia and PTSD.

Internet freedom advocates claim that such a ruling essentially outlaws the operation of a Tor node in Austria, as it could potentially be used to carry out illegal activities.

Previously, Austrian legal opinions have supported the view that service providers are not responsible for the transmitted content of their networks (based on Austrian e-Commerce law, as well as Directive 2000/31/EC of the European Parliament.)

Maximilian Schubert, general secretary of the Austrian association of Internet Service Providers (ISPA), explained that the court’s decision in this case will probably have no direct effect on the liability of those running Tor services.

“The decision highly depended on the special circumstances of the case and particularly on the statements of the defendant which were seen by the court as encouraging the use of Tor services and its servers for the dissemination of child sexual abuse material. We are thus positive that it cannot be seen as a general ruling against Tor services,” Schubert said.

The case however has highlighted legal challenges, he is reported to have said by PC World.

“It still remains to be seen how the Austrian courts proceed in this issue. The decision was a very unfortunate one as it might cause misunderstandings as to the responsibility for running Tor services, when leaving aside the particular circumstances of the case at hand,” Schubert said.

ISPA however is positive that Austrian courts will follow the reasoning of the Austrian Constitutional Court, which last month declared the country’s data protection law unconstitutional because it violates fundamental privacy rights.

The Constitutional Court held that privacy and especially the secrecy of communication on the Internet have to be protected, Schubert said, adding that he expects that because of this ruling the legality of running Tor services will not be challenged.

Photo: TOR Project

Tor (The Onion Router) is an Internet technology that was developed by the US Navy in 2002 to protect the anonymity of political dissidents, gain access to censored information, and to organize proscribed political activities free from authoritarian interference.

Tor has been a particular target of monitoring by the NSA, according to recent reports from German public broadcaster ARD.

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