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Grex > Coop8 > #23: The Blue Ribbon Campaign for free speech | |
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| 25 new of 83 responses total. |
mdw
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response 25 of 83:
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Feb 17 10:01 UTC 1996 |
The statute seems more designed for the protection of ISP's than for
organizations like grex. Grex allows people from other countries who
are beyond the reach of this act to login; it's not clear who would be
responsible for the actions of these people. Grex also allows people on
without verifying their identities, age, etc.--that creates particular
problems with the indecency provisions. Indeed, grex doesn't really
have the ability to deny anybody the use of grex, and has always relied
entirely on human nature and the social skills of its users to resolve
problems.
Presumably, the law would hold the editors of a moderated mailing list
or news group responsible for the content, but would hold responsible
individual senders of private unmoderated mail. Conferences fit
squarely into the middle of this; properly managed conferences can't be
as tightly controlled as moderated news groups, but at the same time,
can't be said to be entirely uncontrolled. We also have conferences on
grex whose contents at least skirt the edge of the sort of material
prohibited by this statute.
if this material isn't, in fact, prohibited, a court case to resolve
this could be expensive and time-consuming, and we've already gotten a
pretty good indication that not all our board members feel comfortable
assuming that kind of risk. Even if this statute doesn't affect our
policies, it could affect how other systems operate, and that could
create a flood of users thrown off other systems, which in turn could
expose us not only to additional risk, but also put an additional strain
on already scarce grex resources.
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adbarr
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response 26 of 83:
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Feb 17 11:21 UTC 1996 |
Grex has no power to control access or use? Hmmm! Hmm! Is there a plug
somewhere that could be pulled by a human? Grex is out of control and no one
is responsible for anything? Grex is getting to be really scary.
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scott
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response 27 of 83:
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Feb 17 12:51 UTC 1996 |
I interpret it to mean that grex would be responsible, since conference
content is under staf control (could be deleted by root).
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ajax
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response 28 of 83:
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Feb 17 17:24 UTC 1996 |
Dave, I think your interpretation of (d) is unrealistically optimistic.
It's aimed at services passing data from "the Internet" to a user. Just
passing packets is no problem, if the content of the packets didn't come
from that service. If content does come from that service, it's a bit
more vague...is Usenet news, stored on an ISP's hard disk, but originating
elsewhere, considered "intermediate" storage? Data that is created and
primarily stored and published on a particular system, even though that
system didn't itself create the data, seems even less defensible (e.g.
Grex/MNet/Compuserve's Forums). I believe yours *could* be the final
interpretation, but it's premature to have any certainty about it. If
the EFF and ACLU lawyers working on this haven't come to your conclusion,
there's a reason: it's too early.
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mdw
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response 29 of 83:
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Feb 17 19:49 UTC 1996 |
Grex is supposed to be a "public access" system, not a "police state".
The model you might think of is like a restaurant, a subway, or a public
park. Anyone can use these services, and you don't have to pull out
your birth certificate or give your name before you use them. All you
have to do is show up and use them.
If restaurants, subways, or public parks were run like a police state,
you would not just be able to walk in & sit down. Instead, you would be
given identity papers, after a rigorous background check to make sure
that you have never been arrested, aren't a sexual pervert, haven't ever
threatened the president of the United States or the pope, and aren't
prone to swearing in front of small children. While using the
facilities, you would be required to keep the identity papers on your
person at all times, and uniformed guards, as well as plainclothesmen
would roam the grounds looking for any evidence of unauthorized
activity, including removal of any item of clothing, criticism of the
powers that be, or the unauthorized congregation of more than three
persons who aren't related by marriage or blood to each other. In
addition, microphones & video equipment would be hidden in select spots
as a further check on unauthorized activity.
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rcurl
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response 30 of 83:
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Feb 17 20:09 UTC 1996 |
I've been in restaurants like that - in Czechoslovakia during the
"cold war".
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dpc
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response 31 of 83:
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Feb 17 20:22 UTC 1996 |
I agree that the statute deserves a lot of careful thought. However,
it does appear that the prohibitions of the statute are quite limited,
while the defenses (even if a prohibited act occurred) are rather
robust.
In other words, the sky isn't falling.
There has been a suggestion on Arbornet that our local systems
might want to pool resources on this issue. Have Grex or HVCN
done anything like forming study committees? I've proposed that the
Arbornet Board form a "Telecommunications Act Committee" at tomorrow's
meeting. I don't know how this suggestion will be received.
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srw
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response 32 of 83:
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Feb 17 22:27 UTC 1996 |
We certainly discussed the act at our last board meeting, and now that it has
been passed, and a TRO issued against a small part of it, I'm sure we'll be
discussing it some more.
I pointed out then and still believe that the act does not ask the system
operators (the Grex board/staff) to monitor private email. The senders of that
email are responsible for what they say. If laws are broken by users of Grex,
we will work *with* law-enforcement agencies to track down the perpetrators,
as we always have. The CDA doe not require that we maintain records of who
our users are.
The conferences are a different kettle of fish. I believe the CDA does hold
the poster of inappropriate material responsible for his/her acts. I believe it
also holds the system responsible if inappropriate material is allowed to
remain. Otherwise we would be knowingly allowing the system to be used for an
activity prohibited by paragraph (1) and therefore would fall under paragraph
(2). This means that we are not at risk just because someone posts obscene
material, but that we are at risk if we allow it to remain once we discover
it. (unless we deny access to minors)
Of course we no longer have to worry about dirty words as the indecency
provisions cannot be prosecuted, because of the TRO. If the TRO is overturned,
we're back to square 1, though, and that's a worry. Another worry is whether
any material in any of our conferences fit the definition of the remaining
portions of the CDA. I don't know if there is anything that does, as I do not
read all of the conferences. Like most people, I read only the conferences
which are targeted to issues I am interested in.
I agree with Dave that the sky is not falling, but I think that the
interpretation expressed in the last paragraph of #23 is way to liberal
an interpretation. I am worried about this.
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ajax
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response 33 of 83:
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Feb 18 01:30 UTC 1996 |
Don't forget, the restraining order allows indecent speech, but not
patently offensive speech, and the FCC uses the terms interchangably.
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mdw
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response 34 of 83:
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Feb 18 01:59 UTC 1996 |
Minors have nothing to with the "obscenity" provision of the law. There
is a nice summary of what it all means in
gopher://gopher.panix.com/0/vtw/exon/faq
Some particular points from there:
The law does not explicitly require verification. The indecency
portions, however, implicitly require it - the relevant language is if
you "knowingly transmit or make available". The example in the faq is
that "simply asking people their age" (as we currently do in newuser)
would not be an adequate defense against "making available", because it
is a "reasonable assumption that someone might not be telling the
truth." Based on stories I've heard elsewhere, that also means
photocopies of driver's licenses mailed in would also not be acceptable;
we would probably have the equivalent of the candidate applying in
person with the actual photo-ID. A few moments of reflection on what an
intelligent 16-yr old kid could do with a scanner, paint program, &
laser printer should suffice to show the logic here. Fortunately, it
seems likely that the TRO will become permament, and therefore the
verification issue seems moot. For now.
The obscenity provisions are another matter. There is a case,
_Miller_v._California_ (1973) that defines obscenity. This definition
is derived from existing law that already outlaw obscenity on the
internet, just as they do anywhere else. Disturbingly, the gov't has a
history of choosing to prosecute such cases in conservative
jurisdictions in order to take advantage of "more restrictive community
standards".
However, the CDA's overly broad provisions are still cause for alarm.
Judging by the faq, each individual fairwitness here could be held
responsible for material that they have "knowningly made available".
Apparently, they can be considered "knowning" if they have "reason to
know" that certain conferences or other communication channels (such as
party or write) are "likely" to contain material that some may find
"obscene". If a conference or medium were found "likely" to contain
such material, then it seems that everyone else up the line would also
be responsible, such as staff, the board, etc. Basically, CYA is no
excuse for "knowing".
There are two more interesting issues that CDA manages to ignore: (1)
the federal government doesn't have the authority to regulate
communcations in any kind of general sense. People here have said that
the internet should be regulated "just like any other medium"; but in
fact, the federal government can only regulate it in very specific
senses, which are laid out in the constitution & further defined and
refined in common law. These restrictions on what the federal gov't can
do are one reason why the laws are already different for such
established media as television vs. the newspaper. (2) the first
amendment guarantees "free speech", and what constitues "free speech" is
variously defined in common law in such decisions as Cal vs. FCC, 492
U.S.115 (1989), where indecent speech was found to be protected.
Basically, the gov't can't just decide what it can do, and it's
specifically prohibited from doing anything if it's a question of free
speech.
It's not really very surprising that the TRO only covered indecency. In
general, courts like to make decisions that involve the least "change"
to things - since the various entities involved admit that other
statutes already cover obscenity, there would have been "less reason" to
restrain the obscenity part of the law. The court also did not address
the "abortion" language of the final bill; but there's another court
case that comes up shortly where everyone seems confident a similar such
restraining order will be applied.
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scott
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response 35 of 83:
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Feb 19 12:06 UTC 1996 |
I attended the Arbornet board meeting last night. They had a somewhat more
upbeat interpretation of the CDA than we hve been tossing around. The basic
interpretation there by dpc is that as long as Grex board/staff does not
create offensive content itself, there is no liability. Also, dpc felt that
since the Jake Baker case, the Feds are feeling a bit burned on computer smut
issues and won't be very eager to prosecute here again.
(Please feel free to correct, Arbornet folks!)
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robh
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response 36 of 83:
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Feb 19 15:15 UTC 1996 |
I've heard that latter opinion circulating around the Net, let's
hope it's right.
(I really should thank Jake the next time I see him. >8)
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brighn
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response 37 of 83:
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Feb 19 17:18 UTC 1996 |
Doesn't protect us individuals much, but at least it means that
Grex won't be getting on our cases as well. That's reassuring. =}
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scott
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response 38 of 83:
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Feb 19 17:35 UTC 1996 |
Well, it would mean that the people who run Grex wouldn't be as likely to end
up in jail.
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remmers
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response 39 of 83:
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Feb 19 20:22 UTC 1996 |
Hmm, I've read the CDA and wouldn't have gone with an interpretation
as optimistic as dpc's, but then, I'm not a lawyer.
Glad you attended the Arbornet meeting, Scott. I considered it but
ended up not going.
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srw
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response 40 of 83:
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Feb 20 00:52 UTC 1996 |
Yes, indeed. Thanks Scott. I too cannot fully agree with dpc's upbeat
analysis, but then I feel that our own analysis has been excessively negative.
My personal analysis is somewhere in between.
I really don't think we would be held liable for the posting of patently
obscene material providing it was our policy to remove it, and we did.
I also believe the law does not require us to monitor any private mail.
I find it difficult to believe that Dave thinks that if someone posted
obscene material online and it was allowed to remain that the law would
still only apply to the poster. I think it's quite clear that the system
is responsible for removing it. This is what has the Grex board all tied
in knots. Issues like how one can tell if something is obscene still remain.
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mdw
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response 41 of 83:
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Feb 20 04:53 UTC 1996 |
I believe the law is written to allow the government to "bully" people
it doesn't like with the pessimistic interpretation. I also believe
that morally and according to the constitution, it is the upbeat
interpretation that is the only tenable interpretation. If you act as
if freedom of speech has severe limits, then for you, freedom of speech
has severe limits. I see no such limits in the constitution, and I do
not believe such limits are consistent with the principles of a truely
free society. If you adopt system policies designed around a
conservative interpretation of the law, then you cannot go before a
judge and argue the optimstic interpretation of the law. Well, you
could make that argument, but the sort of person who would find that
logic persuasive comprise an extremely small percentage of trial judges.
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tsty
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response 42 of 83:
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Feb 20 08:33 UTC 1996 |
yup -that's the ever-famous "chilling effect." Work at the corners,
at the edges, a little bit here, a litle bit there .... intimidate
a tad in the other place while the gummint is at it ...
Geeee, isn't that how the federal tax rates rose from 3% to (at one
time) 90% <at the uppermost bracket>?
This is *not* a tax item, but the principle of "bullying" has never
changed. And bullying requires either capitulation or resistance for
a response. Since America is _The Last, Best Hope_, capitulation
seems to be an unsavory reaction.
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chelsea
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response 43 of 83:
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Feb 20 09:37 UTC 1996 |
Re: #41 So if you own a television station and decide that
at two o'clock in the afternoon you're going to broadcast
Debbie Goes Down on Dallas that you won't be in any trouble
because you are exercising your right to Free Speech?
From what I've read this issue is going to condense down to
whether telecommunications will be regulated more like
broadcast medium or printed word.
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scott
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response 44 of 83:
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Feb 20 12:04 UTC 1996 |
Re: 43: I suspect we have more in common with a cable station than a
broadcast station. More like public access, which usually has to allow all
sorts of extremist views in order to keep to the "open access" principle.
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brighn
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response 45 of 83:
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Feb 20 18:43 UTC 1996 |
(W/R/T bullying and chipping away, there's a famous WWII quote that I
always have to paraphrase, forgetting the precise quote, but it's
something like "When they came for the Jews, I said nothing, for I
was not a Jew; when they came for the gays, I said nothing, for I was
not a gay; when they came for the Poles, I said nothing, for I was not
a Pole; when they came for me, no-one said anything, for there was no-one
left to speak." Reno's reassurance (implicit) that the CDA will not be
inforced is only a small comfort...).
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robh
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response 46 of 83:
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Feb 20 20:05 UTC 1996 |
Actually, I'm very confident that the current administration won't
go berserk with the new law, even if it does stand up in court.
For as long as the current administration stays in power.
Which may not be too long.
(I don't have to think very long to figure out what a Buchanan
administration would do if the CDA were still on the books.)
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brighn
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response 47 of 83:
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Feb 20 21:04 UTC 1996 |
And President Pat Buchanen is becoming a startlingly real possibility.
Still remote, but ... "Don't worry, Buchanen doesn't have a chance in
NH..."
/
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robh
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response 48 of 83:
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Feb 20 22:02 UTC 1996 |
The down side is, Buchanan has a large devoted following.
The up side is, he's not likely to pick up any voters from
the other candidates who resign. (I hope!)
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adbarr
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response 49 of 83:
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Feb 21 00:04 UTC 1996 |
Look, as long as we stay huddled in this flock, and keep our wool dry, us
lambs will be ok. Wolves? What wolves?
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