Question for the Candidates - CDA III

Dec 14 04:03 UTC 1998

My second question for the candidates has to do with CDA II.  At least
for the moment, CDA II appears to be heading for oblivion.  The
temporary restraining order has been extended to 1 feb 1999, with every
likelyhood of its being found unconstitutional early next year.

Nevertheless, it is quite likely that the people who put forward CDA and
CDA II will try again.  Past and present board members have been
somewhat wishy-washy on this issue.  At least one board member, while
professing every belief in free speech, was unwilling to risk personal
liberty and sacrifice private life in the protection of free speech on
grex.  Another board member has indicated comfort with the notion of
eliminating certain forms of expression on the internet, those that some
might deem harmful to minors.

So my question for the candidates is, when CDA III happens, what will
you do? If there were a significant risk that continuing to operate grex
as an open access system would result in the possibility of you're
having to spend time in court, would you be willing to do so?  What if
the risk were more serious, that you might personally be liable to jail
time for the actions of others on grex? One of the things that makes
grex different from much of the internet is our notion of open access
with no verification coupled with the notion of publishing and having a
long-term identification with those words.  At what degree of personal
or corporate liability would you be willing to sacrifice our notion of
open registration and go to some form of closed registration or age
verification? You may, like most people, be partially sympathetic to the
ostensible purpose of CDA II and III, "protecting minors".  If so, what
forms of expression do you think minors should be protected from seeing?
How would you craft CDA III to secure those protections, and what impact
would this have on grex?

response 2 of 12:

Dec 14 16:02 UTC 1998

Good question, Marcus!

response 4 of 12:

Dec 15 00:22 UTC 1998

Yes, but that doesn't help me to decide how you might react when CDA III
comes to pass.  Past board members have all indicated strong support in
the abstract for "free speech", but when it came to the concrete problem
of how and in what form they would support "free speech" on grex, there
was a split almost down the middle as to their feelings on the original
CDA.

I tried in the item text to indicate some of the specifics that past
board members have said mattered to them, and I'd rather see a more
general answer, but I will try some more specific situations to see if
that helps.

Suppose CDA III comes to pass, and the ACLU and other organizations are
as confident of defeating them as they were with I and II.  On the other
hand, let's suppose the courts aren't so favorable, and refuse to issue
TRO's or grant retroactive immunity as they have in the existing cases.
(If you need a *specific* example, suppose CDA III rules out "the" 7
words you can't say on radio, from being said on the internet without
age verification, and the courts sound favorable on the internet's rules
of speech being the same as TV/radio.)  Suppose the grex membership at
large is pretty incensed about this ruling, and several vocal members
are saying grex should just ignore this rule.  Suppose, on the other
hand, that CDA III might be construed to put specific penalties against
"top brass" ("anyone who operates, or knowingly allows...") and at least
half of the other board members sound really uneager to be on the
front-line for this issue.  And let us suppose there is already one
other case up before the courts, where an operator of a chat line who
had put a word filter in place blocking "the 7 words", is in the courts
because someone said "sh1t".  Your ass is now on the line.  If you are
convincing enough, you might be able to sell the other board members on
the idea of ignoring the law.  On the other hand, if the ACLU and
membership of grex are wrong, you could lose your house, car, and 7
years of freedom.  You could argue that grex needs to do age
verification.  At least one commercial age verification vendor has
already contacted grex, and indicated a willingness to do just this "for
free".  (they charge users $20/yr, credit card only, and vouch for those
users to any sites they use "for free").  Of course, the grex membership
at large is really unhappy with this proposal, arguing it will cut off
indians, poor college students, and people with bad credit.  Or grex
could try to do its own age verification (it's not at all clear from CDA
III that it matters whether indian minors see "the 7 words", but the
legal experts on grex think it doesn't.)  Or you could invent your own
solution, and try to sell it to grex at large, the legal experts, and
all.  Please do explain, in your answer, not just what you would do, but
*why* you would do it as well.  I'm much more interested in your "why"s
than your specific answer to this question, because the specifics to the
real CDA III could be way way different.

response 6 of 12:

Dec 15 05:02 UTC 1998

That is certainly helpful to me in terms of understanding what you might
do.  Thanks.

response 8 of 12:

Dec 15 15:50 UTC 1998

I do; it's going to pass by a 2:1 margin, if people vote they way 
they've written on the issue.

response 10 of 12:

Dec 16 07:20 UTC 1998

I wish I had raised this issue earlier too.  But I did learn some
interesting things about the candidates.  Think of it as a psychology
experiment...

Unfortunately, in real life, there is not always the opportunity to
think things out in good time, and enter a good thoughtful response
after due consideration to all points of view.  With CDA III and other
matters legal, things could come to a head very suddenly.  It is
certainly the case today that the board could be entertaining a visit by
big "bulky" men in fine tailored suits tomorrow, and have to make and
answer to some very important decisions in very short order.  For
instance, if those men say they are from the gov't, want to see
everyone's files, and don't have a search warrant, the board could be in
a very messy pickle if they grant access, and a user sues grex and the
board for breach of privacy.  The big bulky men may well chose a moment
that is most convenient to them, rather than you.  This is unfortunate,
but after all, their interests are not necessarily the same as ours.

So, yes, the timing of this question wasn't fair, but it *was*
nevertheless very appropriate (and interesting!) in terms of learning
what the candidates might do if the situation arose.  Those who feel
offended by this may be able to find some comfort in the thought that at
least there probably wasn't time for this to affect very many votes.

Now that the election is over, there is no reason why you (and anyone
else interested) shouldn't feel free to hijack this item to enter those
more thoughtful responses and to think things out in good time.  Members
can express their hopes in terms of what they wish the board would do,
and the board can certainly decide and explain how they might act.
Since it's very likely somebody will try for a CDA III, there is no
reason why we shouldn't start to think what it might say, and what we
might do.  There may already be "interesting" laws in Kentucky,
Oklahoma, Tennessee, and Utah (and elsewhere?) that we ought to
consider.  Even without all the complication of CDA n, there are always
the more traditional worries about libel and slander.

response 12 of 12:

Dec 18 05:23 UTC 1998

Thanks Dave!