response 50 of 106:

Feb 12 22:15 UTC 2005

The third is url.rexroof.com

response 52 of 106:

Feb 13 05:06 UTC 2005

That is why Grex better be sure that honoring ALL subpoenas won't infring
somebody's privacy.  AOL is the LAST pace I woud like for a divining rod. 
The more important reality is that Grex has a volunteer staff and should be
willing to back the staff by having a BoD with a spine that will not bury the
staff in frivolous civil subpoenas.  

response 54 of 106:

Feb 13 09:38 UTC 2005

tod said:

"The humorous thing about all this is that officers and directors are 
not liable in tort liability.  ALL of Cyberspace, Inc is."

The members of grex are not stockholders. If member contributions were 
defined as fees or were defined as being paid in exchange for stock in 
the company, it would be different.  But they are defined as voluntary 
donations.  Therefore the legal definition of "All of Cyberspace Inc." 
IS the officers and directors of the company, because those are the 
only ones taking legal status at any specific time in the company.  

This is why several years back when Michigan passed its version of the 
communications decency act, there was a legitimate question of 
liability in the event the law was enforced against grex.  There was a 
long contentious item at that point where the suggestion was debated 
that if the heat came, that the entire board should resign.  Why? 
Because if the entire board resigned, grex would have no officers and 
thus there would be nobody the state of Michigan could liable for 
grex's violation of the cda.  

In fact when board elections occur, I don't think it is emphasized 
enough to prospective new board members that being officers of a 
company does make them liable for actions against the company.

response 56 of 106:

Feb 13 20:47 UTC 2005

#54, How is that?.  How is Arbornet different than Cyberspace 
Communications?  Arbornet is just its directors, and Cyberspace is all 
of the members?  Why are the members meaningless at Arbornet?

The bylaws are questionable.  

Article 7 says in part:

"The Corporation assumes all liability to any person other than the 
Corporation or its members for all acts or omissions of a volunteer 
director incurred in good faith performance of their duty as an 
officer"

That is not a full indemnity clause.  It covers "liability to any 
person"  The government is not a person.  So the corporation in fact 
does not assume all liability to the government or any other legal 
body for acts or omissions of its volunteer directors.  The bylaws say 
only that the corporation is "organized on a membership basis"  But 
nowhere does it specifically say that the members own the corporation. 

In fact if grex got sued in court, the judge might well find that the 
definition of who owns this company is insufficiently addressed in the 
bylaws.  Apparently the bylaws were left sufficiently vague on that 
issue.  This is why when the CDA stuff was going on, the issue of the 
board members resigning came up.  The board members are the only ones 
who, for all practical purposes, CAN be held liable for the company's 
actions. And as stated above, the bylaws have the corporation 
indemnifying the board members only against liability to "any person", 
not to any outside group, organization or entity (i.e. the 
government)  The bylaws don't define the members as owners.  I used to 
have a membership in National Geographic.  Does that mean I was an 
owner of National Geographic and can be held liable for the company 
actions?  Of course not.  

Also the bylaws in item #1 still list the registered agent as Michael 
Smerza and give his old address.  Does he still even live there?  It 
is entirely possible that he gets mail at that address for grex, which 
could include subpoenas conceivably.  I think the bylaws item needs to 
be updated with the current registered agent info.

response 58 of 106:

Feb 14 01:16 UTC 2005

#57, I realize that Aruba, but some outside party looking to find that 
info. so as to know who to serve subpoenas to, might read the bylaws 
and conclude-- since it doesn't say otherwise-- that Smerza is still 
the registered agent.  This could lead to an issue where the company 
might not realize that its served with a subpoena because the 
paperwork was sent to the wrong place (Smerza's address in the bylaws 
to be specific)

response 62 of 106:

Feb 14 18:15 UTC 2005

re #59
Agreed

response 64 of 106:

Feb 14 20:16 UTC 2005

Government or civil suits can go after ASSETS.

response 66 of 106:

Feb 14 23:35 UTC 2005

Kinda late, isn't it?

response 68 of 106:

Feb 15 03:34 UTC 2005

#67, the bylaws state that the corporation is an 
organization "organized by its members"  It does NOT say that it is a 
corporation composed of its members.  That would imply the members, by 
virtue of their membership, have ownership in the company.  They 
expressly do not.  The members who founded grex did not want 
ownership.  The "corporation" is an entity that the bylaws define as 
existing separately from its members, and which would exist-- at least 
in theory-- even there were no members left. If every member dropped 
their membership, the corporation would still exist until such time as 
the corporate paperwork was not renewed.    

response 70 of 106:

Feb 16 00:27 UTC 2005

There are a lot of good thoughts in this item.  I'm pleased to see
that we are taking a high-level approach.

I hope that the BoD will discuss possible policies on subpoenas
and related issues at this Friday's (2/18) BoD meeting.

Yes, I think Grex should consult an attorney in this area before
we actually adopt a policy.  While I am an attorney, and I would
donate my services to Grex on this matter, I am not sure I am the
right person to consult.  

Just to further muddy the waters, in civil matters there are at
least two kinds of subpoenas:

Trial subpoenas, ordering someone to show up at a trial and testify,
with or without documents.

Discovery subpoenas, ordering someone to either show up at a deposition
and testify (with or without documents), or just ordering someone
to produce documents.  The fun part about discovery subpoenas is
that the information sought must be "reasonably calculated to lead
to admissible evidence," or words to that effect.  Yes, lawyers in
civil suits can go on "fishing expeditions," but they can't order
people to testify, or show up with documents, unless the testimony/
documents is/are "reasonably calculated," etc.

So if Grex gets a *discovery* subpoena, we certainly have the right
(and perhaps to duty) to only disclose information if it is "reasonably
calculated," etc.  

I have not seen the recent subpoena, but my guess is that it was
a discovery subpoena.  Ergo, there was plenty of opportunity for
us to figure out whether or not we wanted to disgorge everything
requested, or just some of it, or make a motion to cancel or limit
the subpoena.

This sounds complicated, but it really isn't.  Discovery is a
quibblefest, that's all.

response 72 of 106:

Feb 16 11:18 UTC 2005

Whatever policy we end up with should be clear, allow for 
consistency, ask for a response within the limits of what we *can* 
do, and be fair to our users.  All our users.  

response 74 of 106:

Feb 16 19:25 UTC 2005

Here is a policy that I will ask the BoD to adopt at our Friday 
meeting:

"If Cyberspace Communications, Inc., receives a subpoena or other 
request for information in a pending judicial matter, the president of 
Cyberspace Communications, Inc., after such consultations as s/he 
thinks appropriate, shall decide how to proceed."

Yes, this puts slynne in the hot seat.  But after all, what is a 
president for?    8-)

If we adopt this policy, then at least we will have something in place. 
Trying to figure out anything more elaborate in time for its adoption 
at this meeting will probably not result in anything workable.