| Grex > Coop11 > #98: Possible Michigan internet censorship law/challenge |
| Possible Michigan internet censorship law/challenge | 
May 25 05:46 UTC 1999 |
The Grex board received this message earlier today:
Dear Board of Directors for Cyberspace Communications, Inc.:
I am a lawyer working with the American Civil Liberties Union ("ACLU"). The ACLU has brought several lawsuits to protect the rights of Internet users from government censorship. Just this winter the ACLU successfully challenged the Child Online Protection Act ("COPA"), which a Federal Judge held to be a violation of free speech rights of Internet users. As you may know, COPA made it a crime to place material on the Internet that is "harmful to minors." COPA was Congresses second attempt to censure speech on the Internet after the Supreme Court struck down the Communications Decency Act ("CDA") in 1997 as unconstitutional. The ACLU has also succeeded in having similar state laws in New York and New Mexico declared unconstitutional.
Unfortunately, state and federal lawmakers continue to pass new laws aimed at suppressing free speech on the Internet. The Michigan state legislature has just passed such a law. Because any information transmitted over the Internet is accessible all over the world -- including Michigan -- any Internet user who transmits material that could be considered "harmful to minors" would be at risk of violating this new Michigan law.
Just as we challenged the CDA, COPA and earlier state censorship laws, the ACLU is gearing up to fight this new Michigan law. To defeat this new censorship law we need Internet speakers, like yourself, to be plaintiffs. There is no financial contribution required to participate; the ACLU and its cooperating attorneys pay all of the expenses and fees for the case. An agreement to participate as a plaintiff is, in part, lending your name to the case but most importantly helps us show the court why valuable speech, like the speech that takes place on Grex, is at risk under this law. Because Grex is a public access service and because of the many topical conferences Grex hosts, Grex would probably be a particularly strong plaintiff in a challenge to the Michigan law. The Michigan Internet censorship bill has been passed by the legislature and will almost certainly be signed by the governor. Unless a judge enjoins this law it will go into effect on August 1. Because it will take some time to file a lawsuit and have a hearing to enjoin the law we need to have a final group of plaintiffs ready as soon as possible. If you would like to be a plaintiff in this important lawsuit or have any questions please call or e-mail me.
J.C. Salyer
J.C. Salyer--address and phone removed--
The Grex board talked over this message with some interest during the meeting tonight. The general conclusion was that, if the said law really impacted Grex directly (likely), and the ACLU case was acceptible to us (also likely) this is something Grex should seriously consider. John has offered to get in touch with J. C. Salyer and find out more about both the law and the case. This item is for discussing the law, the case, and Grex's position in the whole mess.
What do you think, Grex?
| response 1 of 111: |
May 25 05:52 UTC 1999 |
I hadn't heard about this proposed new law before. To what extent it would affect Grex itself and not just Grex's users would depend on how it defines transmit, but it sounds from the description in here as if it's probably something we'd object to. Before making any decisions on this, I'd like to know more about what this law says, and it would probably also be best to run the lawsuit idea by a lawyer not working for the ACLU, ot make sure we understand waht the ramifications for us in terms of being a plaintiff in the ACLU's lawsuit are.
| response 2 of 111: |
May 25 10:33 UTC 1999 |
I'd like to see the specifics of any lawsuit before signing on as a plantiff. He is asking us to do otherwise.
| response 3 of 111: |
May 25 14:39 UTC 1999 |
Well, I think he's feeling us out, which is OK. I think a cautious but interested reply, asking for specifics, is warranted.
| response 4 of 111: |
May 25 15:25 UTC 1999 |
What scg, marry and aruba say.
| response 5 of 111: |
May 25 15:47 UTC 1999 |
The bill is SB 0117. There is a page of information, including text and commentary at the really awful URL: http://MichiganLegislature.org/isapi/nls_ax.dll/billStatus?LegSession=1999- 2000&DocType=SB&BillNum=0117 I'll post a text version of the bill as soon as I edit it into sane ASCII form.
| response 6 of 111: |
May 25 15:49 UTC 1999 |
s/marry/mary (which John did).
| response 7 of 111: |
May 25 16:02 UTC 1999 |
STATE OF MICHIGAN
90TH LEGISLATURE
REGULAR SESSION OF 1999
Introduced by Senators Hammerstrom, Shugars, Sikkema, Rogers, Gougeon,
Bennett, Jaye, North, McCotter, McManus, Byrum, Emmons, V. Smith, Schuette,
Koivisto, Murphy, Steil and Goschka
ENROLLED SENATE BILL No. 117
AN ACT to amend 1978 PA 33, entitled "An act to prohibit the dissemination,
exhibiting, or displaying of certain sexually explicit matter to minors; to
prohibit certain misrepresentations facilitating the dissemination of sexually
explicit matter to minors; to provide penalties; to provide for declaratory
judgments and injunctive relief in certain instances; to impose certain duties
upon prosecuting attorneys and the circuit court; to preempt local units of
government from proscribing certain conduct; and to repeal certain acts and
parts of acts," by amending sections 3, 5, 6, and 7 (MCL 722.673, 722.675,
722.676, and 722.677) and by adding section 1a.
The People of the State of Michigan enact:
Sec. 1a. As used in this act:
(a) "Computer" means any connected, directly interoperable or interactive
device, equipment, or facility that uses a computer program or other
instructions to perform specific operations including logical, arithmetic,
or memory functions with or on computer data or a computer program and
that can store, retrieve, alter, or communicate the results of the
operations to a person, computer program, computer, computer system, or
computer network.
(b) "Computer network" means the interconnection of hardwire or wireless
communication lines with a computer through remote terminals, or a complex
consisting of 2 or more interconnected computers.
(c) "Computer program" means a series of internal or external instructions
communicated in a form acceptable to a computer that directs the
functioning of a computer, computer system, or computer network in a
manner designed to provide or produce products or results from the
computer, computer system, or computer network.
(d) "Computer system" means a set of related, connected or unconnected,
computer equipment, devices, software, or hardware.
(e) "Device" includes, but is not limited to, an electronic, magnetic,
electrochemical, biochemical, hydraulic, optical, or organic object that
performs input, output, or storage functions by the manipulation of
electronic, magnetic, or other impulses.
(f) "Internet" means that term as defined in section 230 of title II of
the communications act of 1934, chapter 652, 110 Stat. 137, 47 U.S.C. 230.
Sec. 3. As used in this act:
(a) "Sexually explicit matter" means sexually explicit visual material,
sexually explicit verbal material, or sexually explicit performance.
(b) "Sexually explicit performance" means a motion picture, exhibition,
show, representation, or other presentation that, in whole or in part, depicts
nudity, sexual excitement, erotic fondling, sexual intercourse, or
sadomasochistic abuse. Sexually explicit performance includes, but is not
limited to, any performance described in this subdivision communicated,
transmitted, displayed, or otherwise made available by means of the
internet or a computer, computer program, computer system, or computer
network.
(c) "Sexually explicit verbal material" means a book, pamphlet, magazine,
printed matter reproduced in any manner, or sound recording that contains
an explicit and detailed verbal description or narrative account of sexual
excitement, erotic fondling, sexual intercourse, or sadomasochistic abuse.
Sexually explicit verbal material includes, but is not limited to, any
verbal material described in this subdivision communicated, transmitted,
displayed, or otherwise made available by means of the internet or a
computer, computer program, computer system, or computer network.
(d) "Sexually explicit visual material" means a picture, photograph,
drawing, sculpture, motion picture film, or similar visual representation
that depicts nudity, sexual excitement, erotic fondling, sexual intercourse,
or sadomasochistic abuse, or a book, magazine, or pamphlet that contains such
a visual representation. An undeveloped photograph, mold, or similar
visual material may be sexually explicit material notwithstanding that
processing or other acts may be required to make its sexually explicit
content apparent. Sexually explicit visual material includes, but is not
limited to, any visual material described in this subdivision communicated,
transmitted, displayed, or otherwise made available by means of the
internet or a computer, computer program, computer system, or computer
network.
Sec. 5. (1) A person is guilty of disseminating sexually explicit matter
to a minor if that person does either of the following:
(a) Knowingly disseminates to a minor sexually explicit visual or verbal
material that is harmful to minors.
(b) Knowingly exhibits to a minor a sexually explicit performance that is
harmful to minors.
(2) A person knowingly disseminates sexually explicit matter to a minor
if the person knows both the nature of the matter and the status of the minor
to whom the matter is disseminated.
(3) Except as provided in subsection (6), a person knows the nature of
matter if the person either is aware of its character and content or
recklessly disregards circumstances suggesting its character and content.
(4) Except as provided in subsection (6), a person knows the status of a
minor if the person either is aware that the person to whom the dissemination
is made is under 18 years of age or recklessly disregards a substantial risk
that the person to whom the dissemination is made is under 18 years of age.
(5) Disseminating sexually explicit matter to a minor is a felony
punishable by imprisonment for not more than 2 years or a fine of not more
than $10,000.00, or both. In imposing the fine, the court shall consider the
scope of the defendant's commercial activity in disseminating sexually
explicit matter to minors.
(6) Subsections (3) and (4) do not apply to an internet or computer network
service provider who in good faith, and without knowledge of the nature of a
sexually explicit matter or the status of a minor, provides the medium for
disseminating a sexually explicit matter to the minor.
(7) This section does not apply if a person disseminates sexually explicit
matter to a minor by means of the internet or a computer network unless 1 or
both of the following apply:
(a) The matter is obscene as that term is defined in section 2 of 1984 PA
343 MCL 752.362.
(b) The prosecuting attorney proves that the person disseminated the matter
to 1 or more specific minors and knew his or her status as a minor.
(8) A violation or attempted violation of this section involving the
internet or a computer, computer program, computer system, or computer
network occurs if the violation originates, terminates, or both originates and
terminates in this state.
(9) A violation or attempted violation of this section involving the
internet or a computer, computer program, computer system, or computer network
may be prosecuted in any jurisdiction in which the violation originated or
terminated.
Sec. 6. Section 5 does not apply to the dissemination of sexually explicit
matter to a minor by any of the following:
(a) A parent or guardian who disseminates sexually explicit matter to his
or her child or ward.
(b) A teacher or administrator at a public or private elementary or
secondary school that complies with the revised school code, 1976 PA 451,
MCL 380.1 to 380.1852, and who disseminates sexually explicit matter to a
student as part of a school program permitted by law.
(c) A licensed physician or licensed psychologist who disseminates sexually
explicit matter in the treatment of a patient.
(d) A librarian employed by a library of a public or private elementary
or secondary school that complies with the revised school code, 1976 PA 451,
MCL 380.1 to 380.1852, or employed by a public library, who disseminates
sexually explicit matter in the course of that personUs employment.
(e) Any public or private college or university or any other person who
disseminates sexually explicit matter for a legitimate medical,
scientific, governmental, or judicial purpose.
(f) A person who disseminates sexually explicit matter that is a public
document, publication, record, or other material issued by a state, local,
or federal official, department, board, commission, agency, or other
governmental entity, or an accurate republication of such a public
document, publication, record, or other material.
Sec. 7. (1) A person is guilty of displaying sexually explicit matter to
a minor if that person possesses managerial responsibility for a business
enterprise selling visual matter that depicts sexual intercourse or
sadomasochistic abuse and is harmful to minors, and that person knowingly
permits a minor who is not accompanied by a parent or guardian to examine
that matter.
(2) A person knowingly permits a minor to examine visual matter that
depicts sexual intercourse or sadomasochistic abuse and is harmful to minors
if the person knows both the nature of the matter and the status of the minor
permitted to examine the matter.
(3) A person knows the nature of the matter if the person either is aware
of its character and content or recklessly disregards circumstances suggesting
its character and content.
(4) A person knows the status of a minor if the person either is aware that
the person who is permitted to examine the matter is under 18 years of age
or recklessly disregards a substantial risk that the person who is permitted to
examine the matter is under 18 years of age.
(5) Displaying sexually explicit matter to a minor is a misdemeanor
punishable by imprisonment for not more than 90 days or a fine of not more
than $5,000.00, or both.
(6) This section does not apply if a person displays sexually explicit
matter to a minor by means of the internet or a computer network unless 1 or
both of the following apply:
(a) The matter is obscene as that term is defined in section 2 of 1984 PA
343 MCL 752.362.
(b) The prosecuting attorney proves that the person displayed the matter to
1 or more specific minors and knew his or her status as a minor.
Enacting section 1. This amendatory act takes effect August 1, 1999.
This act is ordered to take immediate effect.
(signed) Carol Mary Viventi
Secretary of the Senate.
(signed) Gary E Randall
Clerk of the House of Representatives.
________________
Governor.
| response 8 of 111: |
May 25 16:22 UTC 1999 |
I'm going to copy part of the house legislative analysis here. The bulk of that analysis describes the content of the bill, and the history of federal legislation. The sections I'm including here are arguments for and against the bill. ARGUMENTS: For: A number of studies have found a correlation between the use of "hard-core" pornography and a number of societal ills - from rape to child molestation. For example, in a study of convicted child molesters, 77 percent of those who molested boys said they were regular users of hard-core pornography. And 87 percent of those who molested girls said they were regular users of hard-core pornography (W. Marshall, Report on the Use of Pornography by Sexual Offenders, Report to the Federal Department of Justice, Ottawa, Canada, 1983.) The LAPD Sexually Exploited Child (SEC) Unit examined the relationship between child sexual abuse by non-family members and pornography in their cases over a ten year period from 1980-1989. Pornography was directly involved in 62 percent of the cases and actually recovered in 55 percent of the total cases. (Ralph W. Bennett, "The Relationship Between Pornography and Extrafamilial Child Sexual Abuse," The Police Chief, February 1991). It is also believed that pornography contributes to rape and sexual violence in America. Another study by Dr. Marshall of adult sex offenders found that 86 percent of convicted rapists said they were regular users of pornography, with 57 percent admitting direct imitation of pornographic scenes they enjoyed in the commission of their rapes (W. Marshall, Use of Sexually Explicit Stimuli by Rapists, Child Molesters and Non-Offenders, 25 Journal of Sex Research 267, 1988.) Further, in Oklahoma City, as officials eliminated over 150 sexually oriented businesses, the rape rate declined over 27 percent in the five-year period. During that same time, rape in the rest of the state continued to rise over 19 percent. (Uniform Crime Report, 1990) A 1979 study in Phoenix, Arizona, found that neighborhoods with a pornography business experienced 40 percent more property crime and 500 percent more sexual offenses than similar neighborhoods without a pornography outlet (U.S. Department of Justice, "Child Pornography, Obscenity and Organized Crime," February 1988.) For: The Internet offers a wide variety of educational and learning opportunities for both young and old; however, although it opens doors to an almost endless array of learning opportunities, it also offers a number of doors that many parents would just as soon their children not open. It is not unreasonable for parents to hope that their children might be allowed to avail themselves of all of the good things that access to the Internet offers without the parents being required to constantly look over the child's shoulder to prevent the child from receiving sexually explicit materials over the Internet. Parents have every right to hope to limit their children's access to sexually explicit materials, and in particular they have the right to expect that other adults will not direct sexually explicit materials to them. The bill will help to alleviate some of the fears that all good parents have about their children's use of the Internet by making it a crime to offer a minor sexually explicit material over the Internet, just as it is a crime to offer them sexually explicit material on a playground or anywhere else. Against: The bill is almost certainly unconstitutional and will likely be struck down if enacted into law. The U.S. Supreme Court's decision in American Civil Liberties Union v Reno, 117 S. Ct. 2329 (1997) specifically addressed the government's assertion (similar to the one offered by proponents of this bill) that the CDA's provisions only prohibited dissemination of indecent messages to persons "known" to be under 18, and therefore it did not unconstitutionally prevent communication between adults. The court noted that "given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it." The court also noted that such an argument "ignores the fact that most Internet fora -- including chat rooms, news groups, mail exploders, and the Web -- are open to all comers. The Government's assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the 'specific person' requirement of [section] 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a 'heckler's veto,' upon any opponent of indecent speech who might simply log on and inform the would be discoursers that his 17 year old child -- a specific person . . . under 18 years of age," [citation omitted] would be present." [Note: 47 U.S.C.A. sec. 223 (d) would have prohibited a person from knowingly using an interactive computer service to send an indecent message to a specific person or persons under 18 years of age, or from knowingly using any interactive computer service to display indecent material in a manner available to a person under 18 years of age.] Furthermore, a CDA-like state law has been rejected by a federal court. The New York case, American Library Association v George Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) challenged the constitutionality of the a New York state online indecency regulation. The federal judge hearing the case ruled that the law was unconstitutional on the grounds that it violated the Constitution's interstate commerce clause, which forbids one state from regulating another state's commercial activity. The judge also noted that the state could already protect children through vigorous enforcement of existing criminal law. It is likely that a similar finding could be made regarding Senate Bill 117. POSITIONS: The Department of State Police supports the bill. (3-17-99) The American Civil Liberties Union opposes the bill. (3-17-99)
| response 9 of 111: |
May 25 16:40 UTC 1999 |
Interesting. I'm not sure if this applies to Grex. We could be considered an Internet Provider, in which case we couldn't be held liable, but our users could.
| response 10 of 111: |
May 25 17:42 UTC 1999 |
Interesting. I'd say this law is going to be struck down whether or not Grex as an entity gets involved in it. Very likely they're trying to put together a big list of organizations as plaintiffs. It's probably not going to be "Grex v. State of Michigan" -- it will be "Michigan Library Association et al" or something of the sort. Don't look to this for much publicity. Note, by the way, that anything done now cannot be considered as legally committing Grex to be involved. At some point, lawsuit papers will be prepared, and someone officially representing Grex will be asked to sign them. If no signature is given, then Grex is not a party. So Grex has a quick and absolute veto power over its own involvement up to the time the lawsuit is filed with that signature. Even after that, Grex could withdraw from the suit at any time. Therefore, I expect the ACLU attorneys will take care to keep the Grex board informed in advance. Note that most attorneys are not allowed to solicit business like this. However, advocacy groups like the ACLU, who never charge their clients legal fees, are exempt from that rule, per court decisions. I'm surprised I've never heard of Salyer. I'll look into this. Disclaimer: I'm an ACLU member, though I do little for the organization beyond paying dues.
| response 11 of 111: |
May 25 17:49 UTC 1999 |
My guess would be that Grex would be considered an Internet Service Provider in some circumstances, but not in others.
If some minor dialed into Grex, then used lynx to access a porn site, then I think this law would protect us.
But if the minor finds some porn in our own sexuality conference, then I would assume that we would be liable. This would be true even if we didn't actually know that they was anything pornographic in that conference or if we didn't know the person was a minor, because we haven't taken any real precautions to prevent minors from logging in or port from being posted.
I'm not at all sure of this interpretation. It's possible that only the person posting pornography in a conference that is plainly accessible to minors would be liable. But even if that is the case, it would have a chilling effect on free discussion here. We'd either have to advise our users that engaging in "adult" discussions here could cost them a $10,000 fine, or we'd have to find a way to validate people before allowing them into "adult" sections of the conferencing system.
| response 12 of 111: |
May 25 17:53 UTC 1999 |
A further thought - it is certainly possible to post porn in Grex's conferences in an essentially anonymous fashion. I think that if anyone did that, we would clearly be the liable party under this law.
Allowing people the option of speaking anonymously is something we do knowingly and deliberately, in the interest of encouraging free speech. But I think we liable for any legal consequences of such speech.
| response 13 of 111: |
May 26 15:32 UTC 1999 |
Would participation in this lawsuit constitute 'political advocacy', and as such threaten our 501c3 status?