janc
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response 163 of 316:
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Jun 26 16:56 UTC 1999 |
DECLARATION OF JAN WOLTER
I, Jan Wolter, of Ann Arbor, Michigan, do declare:
1. I am secretary 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 Michigan Public Act 33 of 1999
(hereinafter, the "Act").
2. I have been using and administering public-access
computer-conferencing systems since 1983. I am currently the
secretary of the board of Cyberspace Communications, and a member
of its volunteer technical staff. I served as president of
Cyberspace Communications in 1998. Professionally, I am a
freelance software developer, specializing in building web sites.
I received a Ph.D. in Computer Engineering from the University of
Michigan in 1988 and was a Professor of Computer Science at Texas
A&M University from 1988 to 1995.
BACKGROUND
3. Cyberspace Communications is a recognized 501(c)(3)
tax-exempt organization that pursues charitable and educational
missions on the Internet. We provide limited access to Internet
services free of charge, but our primary purpose is to provide a
wide range of on-line discussion forums allowing free exchange of
information on any topic. Grex has been in operation since 1991.
4. 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. To support our charitable
and educational mission, we have made the process of registering
to use Grex as barrier-free as possible. 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 a wide range
of people can make use of our services and bring their viewpoints
to our discussion forums.
5. Grex is active, popular, and has a large number of users.
An average of about 200 new accounts are created daily; there
are currently about 29,000 active accounts. Users come from all
over the world, but the majority of those most active in our
public forums are Michigan residents. Many are minors. Because
we do not require our users to supply personal information, we
do not have complete information about the ages or locations of
our users.
6. Grex is primarily a computer conferencing system, allowing
users to post messages in any of over 100 public electronic
forums. These conferences are at the heart of our educational
mission. Among the topics covered by conferences on Grex are
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. The conferences currently contain about 42 million
words of text, roughly five times as much text as a typical 20
volume encyclopedia. Roughly 200 new messages are posted to the
conferences every day.
7. Grex also hosts a live chat area, called "party." Messages
posted here are short generally one line of text and are
seen instantly by other participants, permitting real-time
online conversations. Discussions are typically more spontaneous
and informal than they are in the conferences. "Party" is
especially popular with our younger users. On average over 5000
messages a day are posted in the chat area.
8. Grex provides many services in addition to conferences and
live chat. 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 about 1000 users have used Grex to
post their own text-only web pages. (Images are not allowed
because our Internet connection is too slow and overburdened to
support them.) Pairs of users can also open private
conversation channels. 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.
9. For an operation of its size and scope, Grex's budget is
extremely small. All the work of maintaining and enhancing the
system is done by unpaid volunteers who contribute services on a
part-time basis; we have no paid employees. Cyberspace
Communications is funded almost entirely by donations from our
users. Our current assets consist of $4,500 in the bank and
various old computer equipment. We have about 100 members who
donate $60 a year or $6 a month, making them eligible to vote in
board of directors elections and for which they also receive a
minor increase in Internet access. Our total revenue in 1998
was about $8,200, giving us about 30 cents per user per year to
spend. About $7,500 of this was spent simply to keep the system
running rent, electricity, phones, Internet connectivity, and
such leaving us about $700 to spend on upgrades to our
service. Except for an unstaffed machine room, we maintain no
offices. Although our funding is extremely limited, we value
the fact that drawing our income primarily from our users means
we are primarily responsible to our users. There are no paid
advertisements on Grex.
10. Grex is an online community. Although for many of our
users, Grex is simply a place to get free E-mail or web access,
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 the value of our
mission.
CYBERSPACE COMMUNICATIONS AND ITS USERS FEAR PROSECUTION UNDER
THE ACT
11. We are concerned that Cyberspace Communications and its
users may be at risk of prosecution under the Act.
12. Our computer is located in Michigan, and many of our users
are Michigan residents, however many others are not residents.
13. We request that our users give information about themselves
but we do not require any information to be given. In any
event, our system does not give any way of knowing if declared
ages, locations, or any other information are accurate.
14. Cyberspace Communications itself authors only a small
amount of material, consisting primarily of publicity
information, help pages, and technical documentation for our
system. However, there are materials posted on Grex by our
users which arguably might be construed as being "sexually
explicit matter" under the terms of the Act. These materials
are accessible by all users. Since our forums are primarily
text-based, most of this is verbal material rather than images.
However, users are allowed to import files to their personal
areas on Grex, and some use this facility to place publicly
viewable images on the system.
15. Two examples of conference items from Grex which might be
impacted by the Act are attached. Exhibit A is a discussion of
pornography from the women's conference on Grex. Parts of the
discussion might be considered in violation of the Act. To
steer clear of arguable violations of the Act we and our users
would feel much less free to speak on the subject. Exhibit B is
a graphic description of a rape from the poetry conference on
Grex. It was evidently posted for artistic and cathartic
reasons. The responses show concern, sympathy and support.
Many other possible examples could be found.
16. 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. Furthermore, any person wishing to cause problems
for us could stifle a discussion by claiming to be a minor.
17. 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?
18. 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. This is essential to our mission
of providing forums for open discussion.
RESTRICTING CONTENT IS NOT FEASIBLE
19. Compliance with the Act would force Cyberspace
Communications to monitor all forums (because all are accessible
to minors), identify "sexually explicit" material, and eliminate
it.
20. Doing this would require substantial labor, especially for
the live chat channels which are continuously active 24 hours a
day, 365 days a year, and which would therefore require
continuous monitoring. It would be practically impossible to
find volunteers who would be willing to expend that level of
effort and who would be competent to make the difficult legal
distinctions between material which is and is not acceptable
under the Act. We do not have the resources to pay anyone to do
such a job including legal services.
RESTRICTING CONTENT WOULD UNDERMINE OUR MISSION
21. Even if a method were found by which forums could be
monitored within the limits of our resources, doing so would
substantially undermine our ability to pursue our mission of
providing forums for open discussion on any topic free speech.
22. First, any censorship of sexually explicit material for the
sake of minors would have to interfere with the ability of
adults to discuss such topics on our system, even though such
speech is not directly prohibited by the Act.
23. Second, because of the difficulty of determining exactly
what content is "sexually explicit" any censorship by Cyberspace
Communications, or self-censorship by our users, would have to
be overcautious in order to avoid the threat of criminal
prosecution or sanctions.
24. This chilling effect would impact many useful discussions
which touch on sexual topics and have significant social value.
25. Certainly there has been material posted on Grex which is
meant only to titillate or shock. 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. When such material appears in an open
public forum, community standards if we understand the term
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 for them to learn
to understand and respect community standards on sexuality and
other issues.
26. Young people will always seek out and find sexually
explicit material. Our choice is between allowing it to happen
in an open forum, where they can hear the perspective of
responsible adults, or consigning it to clandestine "outlaw"
forums consisting entirely of people interested only in
titillation.
CONCLUSION
27. We have no viable plan or ability to cope with this law.
28. 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 whose operation is legally questionable. The loss
of many of our most upstanding people would irretrievably harm
our community, even if we were never actually prosecuted.
29. 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. Many of our current volunteers and donors would be
uninterested in supporting such a restrictive forum.
30. 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 minuscule
budget. This Act would make that impossible. It would raise
the financial bar so that only organizations large and wealth
enough to pay full-time staff people would be able to run public
conferencing systems. For us to raise that much money we would
probably need some combination of corporate sponsorship,
advertising revenue, and user fees. Any of these options could
significantly undermine our ability to function as an open forum
for free speech on the Internet.
31. 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. 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.
I declare, under penalty of perjury, that the foregoing is true
and correct.
th
Executed this 25 day of June, 1999.
________________________________________
Jan Wolter
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