response 1 of 316:

Jun 9 20:27 UTC 1999

I got a call today from Marshall Widick, of Sachs, Waldman, O'Hare,
Helveston, Bogas & McIntosh, P.C.  He is one of the lawyers who is doing
the legal work for the ACLU's suit, and he will be Grex's primary
contact.  He told me the basic schedule of the case will be something like
this:

- The lawyers will collect "declarations" from all the plaintiffs, to
establish that they have standing in the case.  (That is, to establish
that the law will adversely effect them in an unconstitutional way.)

- They'll file a complaint, followed by a motion for preliminary
injunction against the law.

- The court will set a date to hear the request for preliminary
injunction.

- Assuming the preliminary injunction is granted, the ACLU will move for a
summary judgement to dismiss the law.  If that's granted, it's all over;
otherwise, it proceeds as any lawsuit would.  The other side could ask to
interview someone from Grex, and someone from Grex might be asked to
testify.

Mr. Widick faxed me (via danr) an outline for our declaration.  He would
like the finished document by early next week at the latest.  Jan and I
plan to work on it tonight.

response 3 of 316:

Jun 9 22:15 UTC 1999

declaration of resources...?  does that mean grex has to provide copies of
its financial records and bank statements.

for the answer to VIII, If Act not enjoined, plaintiff will...I think
grex should boldly state "risk prosecution" because I clearly recall this
being the sentiment when the possibility was brought up during the CDA
debate.

Although its reasonable to suggest that if there is a member vote on
joining this suit, that a second question be posed as to how grex should
answer this.

response 5 of 316:

Jun 10 03:24 UTC 1999

It would be nice to have an example of a filled out outline.  I'm not
sure I understand all of this.

response 7 of 316:

Jun 10 03:42 UTC 1999

I'm no longer a board member.  I'm not a very active staff member.  I'm
guessing I could drop out of any positions of responsibility without being
missed much, so take this for what it's worth (not much).  At this point in
my life, I don't think I'd be willing to risk jail time for Grex.  If Grex
were to put itself in blatant violation of a law that was likely to be
enforced, I would probably end my official involvement with the system,
although I would likely continue to be a user of the system, if there was a
system left to use.

response 9 of 316:

Jun 10 05:09 UTC 1999

Here's a quick first draft I wrote up for part one.  It is based on some of
the text of our 501(c)(3) application.

I'm still not sure if this is in the right form.

=============================================================================
                            PLAINTIFF DECLARATION

                          Cyberspace Communications Inc

    Prepared by Jan Wolter (secretary of the board) and Mark Conger
    (treasurer) with input from users of our electronic bulletin board
    system.

I. BACKGROUND:

Cyberspace Communications is incorporated in the State of Michigan as a
non-profit, membership corporation.  Our primary function is to maintain
a public access Internet service called "Grex" (after the Latin word for
"group.")  The name "Grex" is registered as a d/b/a for Cyberspace
Communications.  We have been in operation since 1991.

Cyberspace Communications is a recognized 501(c)(3) tax-exempt organization,
with charitable and educational missions.  We provide basic access to
Internet services free of charge, and we provide a wide range of on-line
discussion forums allowing free exchange of information on any topic.

The Grex system is accessible to the public via the Internet as
"cyberspace.org".  It is also accessible via a bank of dial-in modems
located in Ann Arbor, Michigan.  A simple registration process allows users
to create accounts for themselves.  This process is designed to be as
barrier-free as possible, encouraging the widest possible range of people
to use the system.  Users are not required to pay any fees, nor are they
required to give any information about themselves.  All accounts are
created immediately upon request.  This open access policy helps ensures
that the widest possible range of people can make use of our services
and bring their viewpoints to our discussion forums.

We typically see about 200 new accounts created daily, and currently have
about 29,000 active accounts.  Users come from all over the world, including
a substantial number from India, but the majority of those most active in
our public forums are Michigan residents.

Grex hosts electronic conferences on more than 100 topics, all of which are
open to all users.  These conferences lie at the heart of our educational
mission.  Typical conferences include music, the arts, writing, consumer
information, housing, finance, small business, philosophy, living with
disabilities, men's and women's issues, parenting, pets, computer hardware
and software, nature, and role-playing games.  There are also non-topical
"creative" conferences and a general discussion area.  All Cyberspace
Communications policies are discussed and developed in a public conference
called "coop".  Any posting to these conferences typically remains publicly
readable for months or years.

Grex also hosts a live-chat area, called "party."  Messages posted here are
seen instantly by other participants.  Discussions there are typically more
dynamic and less serious.

All Grex users can freely send and receive private E-mail.  They can also
access the world wide web via a non-graphical browser, and post their own
text-only web pages.  (Images are not allowed because our Internet connection
is too slow and overburdened to support them.)  Users can also open private
conversation channels to other users currently logged on.  We also allow
full access to software development tools on our system for those interested
in learning programming.

Cyberspace Communications is supported almost entirely by voluntary donations
from our users.  Our annual revenue in 1997 was under $12,000, giving us
about 50 cents per user per year to spend.  This goes almost entirely to
pay for rent, electricity, phone bills, and connectivity.  All of the work
done to maintain and administer the system is done by unpaid volunteers.

response 11 of 316:

Jun 10 05:38 UTC 1999

Hmmm...looking at the outline, I think I got ahead of things a bit.  Some of
this material needs to be moved to part II.

response 13 of 316:

Jun 10 20:09 UTC 1999

This is a very excellent start, janc!  I hope you don't mind if I
plagiarize some of your comments to use in the M-Net declaration.   8-)
Remember - what we have received from the lawyer is only a *suggested
outline*, and it's based on a New York case attacking a similar
statute.  I hope we don't feel "prisoners" of the outline.

response 15 of 316:

Jun 11 17:13 UTC 1999

DECLARATION OF [WHOMEVER]

I, [Whomever], of Ann Arbor, Michigan, do delcare:

I am [president] of Cyberspace Communications, a Michigan non-profit
corporation, whose primary function is to maintain a free, public-access
Internet service called "Grex." The name "Grex," which means "group"
in Latin, is also registered as a d/b/a for Cyberspace Communications, Inc.
On behalf of Cyberspace Communications and our members and users, I submit
this declaration in support of plaintiffs' motion for injunctive relief
against enforcement of [such and such] (hereinafter, the "Act").

[I have such and such credentials.  Blah blah blah.  I've been involved with
computer conferencing since such and such, helped found this and that, and
even my dog is exceptionally bright.]

BACKGROUND

Cyberspace Communications is a recognized 501(c)(3) tax-exempt organization,
which pursues charitable and educational missions on the Internet.  We provide
basic access to Internet services free of charge, and we provide a wide range
of on-line discussion forums allowing free exchange of information on any
topic.

The Grex system is accessible to the public via the Internet as
"cyberspace.org".  It is also accessible via a bank of dial-in modems
located in Ann Arbor, Michigan.  A simple registration process allows users
to create accounts for themselves.  This process is designed to be as
barrier-free as possible, encouraging the widest possible range of people
to use the system.  Users are not required to pay any fees, nor are they
required to give any information about themselves.  All accounts are
created immediately upon request.  This open access policy helps ensure
that the widest possible range of people can make use of our services
and bring their viewpoints to our discussion forums.

We typically see about 200 new accounts created daily, and currently have
about 29,000 active accounts.  Users come from all over the world, including
a substantial number from India, but the majority of those most active in
our public forums are Michigan residents.  Because we don't collect much
information about our users, we don't actually know how many of our users
are minors, but it is probably a substantial fraction.

Grex hosts electronic conferences on more than 100 topics, all of which are
open to all users.  These conferences lie at the heart of our educational
mission.  Typical conferences include music, the arts, writing, consumer
information, housing, finance, small business, philosophy, living with
disabilities, men's and women's issues, parenting, pets, computer hardware
and software, nature, and role-playing games.  There are also non-topical
"creative" conferences and a general discussion area.  All Cyberspace
Communications policies are discussed and developed in a public conference
called "coop".  Any posting to these conferences typically remains publicly
readable for months or years.  Postings are censored only in rare cases
(for example, if someone posts a dozen copies of the same message we might
hide all but one).  All conferences can be read over the web even by people
who do not have Grex accounts - they are easily readable by anyone in the
world who has access to the Internet.  Roughly 200 new messages are posted
to the conferences every day.

Grex also hosts a live-chat area, called "party."  Messages posted here are
seen instantly by other participants.  Discussions there are typically more
dynamic and less serious.  It is especially popular with our younger users.
Roughly 5000 messages a day are posted in the chat area.

All Grex users can freely send and receive private E-mail.  They can also
access the world wide web via a non-graphical browser, and post their own
text-only web pages.  (Images are not allowed because our Internet connection
is too slow and overburdened to support them.)  Users can also open private
conversation channels to other users currently logged on.  There are also
a number of ways that users can transfer files of any type to and from Grex,
possibly exchanging files with other users.  We allow full access to software
development tools on our system for those interested in learning programming.

Cyberspace Communications is supported almost entirely by voluntary donations
from our users.  We have about 100 members who donate $60 a year or $6 a
month and receive a minor increase in Internet access as a perk.  Our annual
revenue in 1997 was under $12,000, giving us about 50 cents per user per year
to spend.  This goes almost entirely to pay for rent, electricity, phone
bills, and connectivity.  All of the work done to maintain and administer
Grex is done by unpaid volunteers.  Except for an unstaffed machine room,
we maintain no offices.  Although our funding is very limited, we value that
fact that drawing our income primarily from our users means we are primarily
responsible to our users.  There are no advertisments on Grex.

For many of our users, Grex is simply a place to get free E-mail or web
access.  Serving such people is an important part of our misison, but for
some 500 people of all ages, Grex is much more than that.  It is a dynamic
community where they meet and make friends, exchange ideas, and learn new
things.  Essentially all of our funding comes from donations from this group.
Grex is only able to survive because of the dedication of the users who
participate in our open forums, and believe in what we do.

CYBERSPACE COMMUNICATIONS AND ITS USERS FEAR PROSECUTION UNDER THE ACT

We are concerned that Cyberspace Communications and its users may be at
risk of prosecution under the Act.

We know that some of the users of our system are minors.  About 75% of our
users volunteer information about their age when they register on Grex.  Of
these, about 20% claim to be under 18.  However, except for a few people
personally known to our staff, we don't know if their declared ages are
accurate.

Cyberspace Communications itself authors very little material, and none of
it could be construed to be sexually explicit.  (It is primarily publicity
information, help pages, and technical documentation for our system.)
However, there are materials posted on Grex by our users, which we believe
might be construed as being "sexually explicit matter" under the terms of
the Act and these materials are accessible by all users.  Since our forums
are primarily text-based, most of it would be verbal material rather than
images, but we often see users place images on their accounts that are
accessible by other users and many of these are depicitions of nudity.

Although it is not, in general, clear to us exactly what material would or
would not be considered sexually explicit, we know for a fact that textual
material of any conceivable description could be posted on Grex at any time,
by any person.  Even if all questionable material were removed from Grex, any
person wishing to cause problems for us could post new material at any time.

It is unclear to us to what extent, if any, the Act's exemption for
computer network service providers would protect Cyberspace Communications,
or what would constitute a good faith effort to inform ourselves of ages
of our users or the nature of the material being exchanged among them.
Clearly what kinds of monitoring would be expected from us must be
different for different types of communications - for example, the
Electronic Communications Privacy Act prevents us from monitoring E-mail.
What are our different responsibilities with all the different media we
offer?  Since we allow users to install custom software on their accounts
on our system, are we responsible for monitoring new communications
systems created by our users?

Our uncertainty about our liability under this law is aggravated by the
fact that, as a matter of policy, we allow anonymous users on our system.
Would we be directly responsible for everything an anonymous user of our
system transmits to a minor, including private E-mail?  This seems contrary
to the precident set by the United States Postal Service, which allows
mail to be sent anonymously, but at the same time it doesn't seem sensible
that the Act's prohibition on sending sexually explicit material to minors
could be evaded by simply doing it via anonymous E-mail.

AGE VERIFICATION IS NOT FEASIBLE

To comply with the Act, Cyberspace Communications would have to find a way
ensure that no forum which might contain sexually explicit material can be
accessed by a minor.  Unless all postings of sexually explicit material
were completely eliminated from Grex, this would require verifying the ages
of our users.

We have not, as an organization, extensively studied any verification
technique.  Given that we average over 200 new users every day, it is
difficult to imagine any verification technique that would not require
a full time person and/or a substantial expense, neither of which is within
reach of our limited resources.

AGE VERIFICATION WOULD UNDERMINE OUR MISSION

Even if a method were found by which verification could be done reliably
within the limitations of our resources, doing so would substantially
undermine our ability to pursue our mission of providing forums for
free speech and of providing free-access to Internet services.

Our current policy of not requiring new users to give us any information
is designed to make joining the system as easy and un-intimidating as
possible.  Many people are nervous about getting on the Internet or getting
involved in a public forum.  Almost any method of proving their age would
require users to reveal some significant amount of personal information.
Being confronted by such questions would scare off some of the users who
could most benefit from our service.

Such a verification procedure would also also limit the ability of users
to speak anonymously in our forums.  We believe that having the option of
speaking anonymously is an important part of free speech, and having to
identify yourself to the people operating the system would for many people,
including people ranging from elected officals to battered women, limit what
they were willing to talk about in public forums like ours.

Segregating minors from other users of our system would also undermine
Grex's ability to help young people develop maturity and communications
skills.  On-line forums are one of the few places where young people
can interact with adults on an equal basis.  Their ages are not obvious
to other users, so they are judged by the content and quality of what they
have to say.  For young people, it can be wonderful to discover a world
where they can be respected and treated as equals by adults simply by
sharing their thoughts and behaving maturely themselves.  While it is true
that there are some risks when young people are mistaken for adults on-line,
it would be a gross oversight to overlook the fact that it can also be an
extremely positive experience for them.  For young people to be confined
to a "kid's room" on Grex would turn Grex into much less of a unique
educational experience for them.

RESTRICTING CONTENT IS NOT FEASIBLE

Unless all minors were completely banned from Grex, compliance with the
Act would force Cyberspace Communications to monitor all forums accessible
to minors, identify "sexually explicit" material, and eliminate it from
those forums.

Doing this would require substantial labor, especially for the live chat
channels which are continuously active, and which would presumably require
continuous monitoring.  It would be difficult to finding volunteers who would
be willing to make that level of effort and who could be trusted to make
the difficult legal distinctions between material which is and is not
acceptable under the Act.  We would not have the resources to pay anyone to
do such a job.

RESTRICTING CONTENT WOULD UNDERMINE OUR MISSION

Even if a method were found by which verification could be done within the
limits of our resources, doing so would substantially undermine our ability
to pursue our mission of providing forums for free speech.

First, because of the difficulty of reliably determining which users are
minors, it is certain that any censorship of sexually explicit material
would have to interfere with the ability of adults to discuss such topics
on our system, even though such speech is not directly prohibitted by the
act.

Second, because of the difficulty of determining exactly what content is
"sexually explicit" it is to be expected that any censorship by Cyberspace
Communications, or self-censorship by our users, would be done more broadly
than might be strictly necessary under the Act.  Again this would result
in a broader inhibition of on-line free speech than a literal reading of
the Act suggests.

This chilling effect could impact many useful discussions which touch on
sexual topics, and have significant social value.  [examples - maybe STD or
contraceptive stuff - maybe Valerie's childbirth item]

Certainly there is material posted on Grex which is meant only to titilate
or shock, and has little socially redeaming value in itself.  But in our
conferences no posting stands alone for long.  One user's pornographic
posting, is likely to be followed by another user's objection to its
portrayal of women.  [examples from Grex].  When such material appears in
a open public forum, community standards are readily applied to it, not
because the material is suppressed, but because upstanding members of the
community are there to respond.  When young people are allowed to participate
in such forums, it is an excellent opportunity to them to learn to understand
and respect their community's standards on sexuality.  This cannot happen
if young people encounter sexual material only in "outlaw" forums occupied
only by other people seeking titillation.

CONCLUSION

As various laws of this type have been proposed over recent years, our users
have discussed strategies for how we could cope with such a law.  We have not
been able to find any viable plan.

We have a long history of being good, law-abiding citizens of the Internet.
Many of our volunteers would sever their relationships with Grex rather than
be associated with an organization that operated in clear defiance of the law.
The loss of many of our most upstanding people would irretrievably harm our
community, even if we were never actually prosecuted.

But at the same time, compliance with the law would appear to require that
we validate our users and/or censor our discussion forums.  For the reasons
stated above, we are reluctant to do these things because we believe they
would limit our ability to act as a forum for free speech in ways that go
far beyond just restricting minors from gaining access to sexual materials.

But beyond that, doing these things in any meaningful manner, if it is
possible at all, would require resources substantially beyond what we now
have.  Over our eight year history we have demonstrated that it is possible
to provide an excellent service to a very large set of people on a miniscule
budget.  This Act would make that impossible.  It would raise the financial
bar.  Only organizations large and wealthy enough to pay full time staff
people would be able to run systems like Grex.  For us to raise that much
money we would probably need some combination of corporate sponsorship,
advertizing revenue, or user fees.  Any of these options could significantly
undermine our ability to function as an open forum for free speech on the
Internet.

For all of our history, we have been proud to consider ourselves to be the
freest forum for speech that can be sustained under the law on the Internet.
If this Act is upheld, we believe that we would either have to shut down
completely, or become substantially more restrictive.  We do not believe that
the benefits of this Act can justify so great an encroachment on the
constitutional right to free speech for all Americans.

response 17 of 316:

Jun 11 22:24 UTC 1999

Great, Jan.  I especially like the reference to how the US Postal Service is
aynonymous (I recall STeve Andre' using that analogy at the meeting, glad it
got used).

response 19 of 316:

Jun 12 03:27 UTC 1999

Two random questions:

Is the figure of 200 new accounts created each day still about right?

What was our 1998 income?

response 21 of 316:

Jun 12 05:30 UTC 1999

(re #18: usu, it's the other two people who get tied up at weddings.)

response 23 of 316:

Jun 12 20:28 UTC 1999

Re resp:20 - a preliminary injunction lasts only until a pending court case
can be decided on its merits.  A permanent injunction is just that --
permanent -- unless it is invalidated by that or a higher court.

Re proposed declaration:

1. in the "background", perhaps, instead of "no ads", we should say "no ad
revenue", since users are certainly free to post ads (and do, in the
classified section, right?)

2.  in the conclusion, we should also state that "many of our volunteers"
would leave if we attempted to comply.  Also, in the last graf, we should also
offer as a potential consequence that we (and others) would continue to
operate as "outlaws".  We might also point out that the 'Net community is very
freedom-oriented, and that even if we did not choose to flout the law, there
are those who would, and the Act would not, in the end, actually work.

3.  There was something else...  *sigh*