Hacker News Reader

Comment by CalChris | Hacker News Reader

Wasn't this a form of fraud? I don't know what the Swiss law is but in the United States, fraud is both a civil tort and criminal wrong. The elements of a fraud are:

  1) the making of a statement
  2) the falsity of the statement
  3) an intent to deceive
  4) reasonable reliance on the statement by the injured party
  5) injury sustained as the result of the reliance

ProtonMail knowingly told this activist 'we don't log your IP' in order to attract their business. ProtonMail did log the IP address. The activist believed this and got arrested.

View on HN

Reasonable people are assumed to know that the obligation of a service provider to obey the law of its jurisdiction has a higher legal priority than their obligation to oby contract terms with customers.

#2 likely fails because the statement was at worst ambiguous or incomplete, not false. The statement that they do not keep logs by default combined with what reasonable people are expected to know as mentioned above should have led a reasonable person to see through the ambiguousness.

And if not PM went in to more detail in the TOS. Yes, it is well known that most people don't read the TOS. Heck, I often do not read the TOS.

But when you are using a service as part of some criminal endeavor or for something for which there is a reasonable chance will be mistaken for a criminal endeavor you really do need to read the TOS. To not do so is unreasonable.

#3 probably fails because there is likely no way to prove intent to deceive.

#4 likely runs into problems similar to those of #2. A reasonable person using a service for furthering some illegal activity would be expected to put some care into checking out the service to see if it is safe for such activity, and in doing so should have discovered that PM is not safe against Swiss law enforcement obtaining some meta data.

2. was missing when the activist started using PM. 3. also missing (unless there is strong evidence of presence). So no, no fraud. PM has to follow Swiss law and they have stated this long before the incident pretty clearly.

They've been saying this since at least 2015.

https://web.archive.org/web/20151117172602/https://ProtonMai...

When did the activist start using ProtoMail? Also, if they say roughly, we will not follow Swiss law for you and they follow Swiss law, that is still lying.

“We don’t log your ip by default”

This is all very silly. They said right up front they can. Their TOS said they can.

It’s also very silly to assume PM would disobey EU requests. They were created with EU funding.

Maybe for you that's clear. But I use Protonmail to advocate for journalists, whistleblowers, and teachers, many of which are not security experts and not familiar with the twisted language used by Protonmail's marketing team.

If their marketing team can't come up with something better, just take text from the privacy policy verbatim.

Reply on news.ycombinator.com