Progress of the ACLU suit

Jun 9 20:09 UTC 1999

This item is for discussion of progress on the suit the ACLU is bringing
against the Michigan Internet Censorship Act.

response 2 of 316:

Jun 9 20:28 UTC 1999

Here's the outline (any typos are mine):

Outline for Plaintiff Declarations

I. Background.
    A. Identity/position of declarant.
    B. Qualifications and background of declarant.
    C. Who is the jural entity (Co., non-profit Co., d/b/a).
    D. Description of plaintiff and character of online services.
    E. Any mission of/public service provided by plaintiff.
    F. If limited, description of resources of plaintiff.

II. Online materials provided by plaintiff organization.
    A. Number and location of users of plaintiff's online materials.  (Cite 
       hits and unique hosts where possible.)
    B. How a user accesses plaintiff's online materials.
    C. Description and form of content provided by plaintiff and users of 
       plaintiff's site.
        1. Plaintiff uses Internet, as defined in the Act.
        2. Why "knowing" requirement would bring plaintiff within the scope of 
           the Act.
        3. Specify types of material, e.g. BBS, forums, chat rooms, etc., that 
           are accessible through the plaintiff's Web site, how users can 
           access them, and the types of content available.
    D. Any redeeming social purpose served by plaintiff's site.
    E. Any reason why the plaintiff's materials would be particularly relevant 
       to minors.
    F. All material on plaintiff's Web site is available to all users, whether 
       adult or minor.

III. Plaintiff organization fears prosecution under the Act.
    A. Specific examples of content provided by the plaintiff organization 
       that may be considered "sexually explicit."  (Attach exhibits from 
       Web site.)
    B. Plaintiff organization fears prosecution and, if the Act is not 
       enjoined, it will either have to risk criminal prosecution or terminate 
       its online services.
    C. Explain why plaintiff thinks its content is covered by the Act.
        1. Act applies to written material, articles, recordings, etc.
        2. Act applies to commercial and non-commercial Web sites.
        3. Plaintiff does not know what "sexually explicit" covers; different 
           people and communities have different opinions.
        4. Out of state plaintiffs are unaware of Michigan community 
           standards.
    D. Plaintiff does not know how to prevent minors from accessing materials 
       without preventing adults.
    E. Plaintiff cannot segregate content that is permitted in Michigan from 
       that which is permitted in the rest of the world.
    F. Plaintiff also fears liability for content posted by others.
        1. Plaintiff is unable to constantly monitor the content posted by 
           others on its services.

IV. Age verification on the Internet is not feasible
    A. Credit card verification is not technologically and economically 
       feasible.
        1. Requires a commercial transaction.
        2. To charge for providing free content would be prohibitively 
           expensive, especially for small or non-profit organizations.
            a. Cost per transaction.
            b. Set up and maintenance costs.
            c. Impossible to screen all material in order to separate harmful 
               to minors content out.  Even if possible, would have to hire 
               counsel to label what would be considered harmful to minors.  
               Credit card verification would have to apply.
    B. Debit account is not technologically and economically feasible.
    C. Adult access code and adult personal identification number is not 
       technologically and economically feasible.
    D. Digital certificates are not technologically and economically feasible.
    E. No other "good faith" means to verify age or restrict content.
    F. "Service provider" defense: With respect to communications made by 
       others on its online services, plaintiff does not know if it would be 
       considered a "service provider" of the communication.
        1. (If interactive Web site) Plaintiff knows others use or may use
           plaintiff's Web site to disseminate material that is "sexually 
           explicit."
        2. Plaintiff would still be subject to a "heckler's veto"  by anyone 
           who wanted to claim that a minor intends to access plaintiff's Web 
           site.

V. Even if verification possible, would destroy unique features of Web and 
   would economically harm plaintiffs.
    A. Plaintiff believes that its patrons should be able to access its 
       materials on an anonymous basis and reasons why.
    B. Plaintiff believes that asking for verification/identification would 
       chill use of its online materials.
        1. Verification would limit speed of access to site and flexibility of 
           Web-linking.
        2. Verification would chill use by those seeking to protect 
           privacy/anonymity.

VI. Vagueness: Plaintiff cannot understand what actions might lead to 
    prosecution under the Act.  Plaintiff cannot determine if it may be 
    subject to criminal liability for the content that it provides.  
    Specifically, plaintiff does not understand:
        1. Community: Out-of-state plaintiffs cannot know Michigan community 
           standards.
        2. Material as a whole: Does this mean the entire site, a web page, a 
           single image?
        3. "Sexually explicit"
        4. Knowing: What does it mean?  What does it modify?  Must plaintiff 
           know that the specific minor is in Michigan?
        5. "Good faith" requirement for using service 
           provider/librarian/college defenses.

VII. Impact of Act on plaintiff
    A. If Act not enjoined plaintiff will:  1) self-censor; 2) risk 
       prosecution; or 3) don't know.  ("Don't know" is as good an answer as 
       any because the real harm caused by the law is the chill it puts on 
       speech that would be close to the line or on legitimate speech among
       adults.

response 4 of 316:

Jun 10 03:23 UTC 1999

There are some people involved in Grex who have said they would continue to
run Grex in defiance of the law.  There are others who feel if we can't
run within the law, we shouldn't run.  There are others who would be
unwilling to risk doing jail time for Grex.  I don't know what we would
end up doing.  Likely different people would do different things.

response 6 of 316:

Jun 10 03:41 UTC 1999

Some questions:

I'm assuming that we aren't being asked to actually write this in outline
form, but to write a prose document hitting these points in roughly this
order.  Is that correct?

About how long is the finished declaration expected to be?

I.A: Is the "declarant" the person writing the declaration?

I.F: What kinds of resources are we talking about?  Does anyone have unlimited
     resources of any type?

Hmmm...I thought I'd have more questions, but acutally, most of this makes
good sense.