Re: Actions in law

[Ansgar -59cobalt- Wiechers <bugtraq () planetcobalt net>]

On 2006-04-06 Craig Wright wrote:
> First what is misunderstood by some is that the response to a property
> right is a general duty on other people not to interfere with the "res"
> (thing). Some people assume that the law is there to protect the rights
> of the individual to do whatever they wish unless this act is expressly
> forbidden. This is a mistake. The historical origins of the law go to
> Roman civilisation and than follow into the feudal customs of the 12th -
> 14th centuries.

This is codified by roman (and derived) law.

> The law was developed to protect the rights of the property owner first
> and foremost (An ethical argument as to this being unjust is irrelevant
> to the point).

This has never been argued. However, with certain actions the property
owner implicitly grants certain privileges to other people.

> Illegal means not legal. It does not mean against the law. There is a
> difference. Not legal can mean that there is not an express right to
> do the action.

Check your latin. What do you believe "legal" means? Correct, it means
"conforming to the law". Thus illegal means "not conforming to the law",
or "against the law". Nothing can be illegal without a law. And not
legal can only mean that there is not an express right to do an action
if there is a law forbidding the action in general.

> The cases mentioned in a previous post and in particular the following
> one have demonstrated this:
> Harrison v. Carswell (Harrison v. Carswell (1975), [1976] 2 S.C.R. 200)
>
> The defendant argued that they had a right to protest. This is a right
> under law for freedom of speech and expression. The Mall owner stated a
> property right to exclude. The owner of the mall won. The where able to
> effect an injunction on the protester stopping them from entering the
> mall property and surrounds (i.e. the areas that customers may go).

There were laws codifying the right of property, and there were laws
codifying freedom of speech. Why do you believe this to be an example
for something to be illegal without a law?

[...]
> A person "is subject to liability to another for trespass, irrespective
> of whether he thereby causes harm to any legally protected interest of
> the other, if he intentionally . . . enters land in the possession of
> the other, or causes ... a third person to do so." RESTATEMENT (SECOND)
> OF TORTS § 158 (1965) see Bradley v. American Smelting & Refining Co.,
> 104 Wn.2d 677, 681, 709 P.2d 782 (1985).

I'd like to see a person charged for "trespassing" e.g. a shop during
business hours.

> Trespass as I have previously stated is the wrongful interference with
> other persons or with their possession of goods or land. To constitute
> a trespass the interference must be unauthorised, direct and done
> voluntarily.

Why is it so hard for you to understand that this is not the issue? We
are discussing whether authorization is given implicitly or not.

[...]
> So to finish. Telling someone that port scanning is ok is negligent.

No.

> I do not care if you happen to engage in this activity yourself
> without authorisation, but telling another that it is ok is simply
> irresponsible.

Authorization is given implicitly, thus your entire claim is wrong.

Regards
Ansgar Wiechers
-- 
"All vulnerabilities deserve a public fear period prior to patches
becoming available."
--Jason Coombs on Bugtraq

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