remmers
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response 45 of 316:
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Jun 15 14:19 UTC 1999 |
Okay, here's my draft. No substantive changes. I've incorporated
suggestion from Mark, Chanur, and others made in this item, as well as
rephrased some things on my own, added a few sentences, and re-arranged
some paragraphs -- with the aim of (hopefully) making some points
clearer or stronger.
The declarant issue isn't yet resolved. Marshall Widick will be
consulting with the senior partner on that and get back to me later
today. Once the declarant is determined, the unspecified portions of the
preamble will be merged in.
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DECLARATION OF [WHOMEVER]
I, [Whomever], of Ann Arbor, Michigan, do declare:
I am [list office here] 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").
[List credentials here.]
BACKGROUND
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.
Consistent with our charitable and educational mission, a person goes
through a simple one-time registration process that is designed to be
as barrier-free as possible, in order to encourage the widest possible
range of people to use the system. 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. 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.
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.
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 our
conferences 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.
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.
Grex provides a few 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.
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; 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.
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
We are concerned that Cyberspace Communications and its users may be
at risk of prosecution under the Act.
Our computer is located in Michigan, and many of our users are
Michigan residents.
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% say they are under 18. However, except for
a few people personally known to our staff, we have no way of knowing
if these declared ages are accurate. It should also be noted that
more than half of our users ask that the information they give be kept
private from other users, so our users are even less likely than our
staff to be able to istinguish minors from adults on-line.
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. 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.
Two examples of conference items from Grex which might be impacted by
the Act are attached. Exhibit one is discussion of pornography from
the women's conference on Grex. Though most of the discussion is not
very "sexually explicit" at various points examples are used that
might be considered in violation of the Act. Though a discussion like
this would probably not be banned under the act, users would likely
feel much less free to speak on the subject. Exhibit two is a graphic
description of a rape from the poetry conference on Grex. It was
apparently posted for artistic and cathartic reasons. The responses
show concern, sympathy and support. Many other possible examples
could be found.
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 precedent set by the United States Postal
Service, which has always allowed mail to be sent anonymously. At the
same time, it doesn't seem sensible that someone could evade the Act's
prohibition on sending sexually explicit material to minors by simply
using anonymous E-mail.
AGE VERIFICATION IS NOT FEASIBLE
To comply with the Act, Cyberspace Communications would have to find a
way to 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. Those based on credit or debit cards would be
inappropriate for a free system. 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
unintimidating 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 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, including people such as elected officials or battered women,
limit what they were willing to say 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 ignore the fact that it can also be an extremely
enriching experience for them. Grex provides young people positive
interaction with adults, interaction that is of educational value and
that could not be obtained from a "kids' room."
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 24 hours a day, 365 days a
year, and which would presumably require continuous monitoring. It
would be virtually possible to finding 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 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
prohibited 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 would impact many useful discussions which touch
on sexual topics and have significant social value.
Certainly there is 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 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 for them to learn to understand and respect
community standards on sexuality and other issues.
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
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 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.
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.
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 so that only organizations large and wealthy
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.
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.
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