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Grex > Coop11 > #98: Possible Michigan internet censorship law/challenge | |
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| Author |
Message |
| 25 new of 111 responses total. |
aaron
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response 64 of 111:
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May 28 22:00 UTC 1999 |
It is unfortunate that Engler conservatives tend toward the religious
right, as opposed to the traditional political right. However, I have
seen little sign that the Court of Appeals would uphold a law this far
"out there." Also, given the First Amendment issues, this would be
subject to review by federal courts, even if upheld by Michigan's Supreme
Court.
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scg
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response 65 of 111:
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May 28 22:42 UTC 1999 |
Question:
If, as dpc suggests, we were told that we didn't have standing to sue,
because this law didn't affect us, would that shield us from prosecution at
all?
I'm puzzled by Rane's contention that Grex's board or whatever would be unable
to extract text from items in any of our conferences showing material that
might put us in violation of the law. It's certainly not practical to have
a human sitting there reading and deciding whether to censor every response
that gets entered, but that doesn't make it impossible to go back after the
fact and find a few examples. This being a public access system, our board
members are allowed to read the conferences.
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janc
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response 66 of 111:
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May 29 02:59 UTC 1999 |
I think the answer to Steve's question is that if we were found not to
have standing, then that would give us any real protection. Standing
can obviously change with time. I suppose a ruling that our activities
weren't effected by the bill could be useful as a defense in a later
lawsuit, as long as it accurately described what we did, and what we did
hadn't changed. However, if anyone did prosecute us later, it would
certainly establish our standing very soundly at that time.
Dave says we may not have standing because although the law as written
wouldn't effect us, the way it is likely to be enforced probably
wouldn't. Unlike Dave, I'm not an attorney, but that sounds kind of
implausible. Under those rules we could have laws on the books that
work like "oh yeah, as written it's wildly unconstitutional, but it's
OK because we don't really mean that way."
I'm not sure that it makes any difference whether or not there is
actually any "obscene" material currently available on Grex. I would
think that our standing would be more based on the basic methods of
operations here. Given that we have over 25,000 users, given free
accounts without any kind of validation and allowed to post in
unmoderated forums, any sane person would conclude that, of course, this
kind of material is going to appear on the system regularly.
Furthermore, we can easily show cases of people trying to deliberately
do damage to this system - we have a couple people every week try to run
fork bombs or fill up the disk. If this law were in effect, there would
be another avenue available - anonymously post some obscene material and
report us to the proper authorities.
We've discussed in the past how Grex would cope with CDA-like laws.
People had suggested that we could restrict access to adult conferences,
like "singles" to people who had been validated as adults. But that
would be completely ineffective against a hostile user posting obscene
material in the "teletubbies" conference (ok, so we haven't got a
teletubbies conference.) In fact, we have to validate *all* users, so
that if someone does post obscene materials, we can hold them
responsible.
The procedures necessary for validating the identity (for liability
protection reasons) and age (to decide what parts of the system they
would have access to) of all new users are not obvious, but they
probably aren't simple, and probably can't be automated. Currently we
have over 200 newusers a day. Could our volunteer staff manage to
validate 200 newusers a day? The reason we qualify as a tax-exempt
organization is because we have charitable and educational missions.
For us to persue these missions effectively, it is important that the
barriers to entering the system be low. A complex validation process
for all new users would cripple our ability to serve those missions,
even if we could marshal the resources necessary to pursue it.
In short, this law basically outlaws Grex. I don't believe that we
could operate under its terms.
This is why John Perry is wrong. This is not advocacy. Suppose that
the law wasn't immediately overthrown. Suppose that Grex got prosecuted
under this law. Then we would be defendents instead of plaintiffs, but
the situation would basically be the same. Our only possible defense
would be that the law was unconstitutional. Would you say then that we
shouldn't defend ourselves because that would be advocacy?
Cyberspace Communications has a long record of doing our best to be good
citizens and operate within the law. If this law were upheld, we'd be
at a quandry - either we make drastic, crippling changes to the way we
work, we shut down, or we run as an outlaw system, in defiance of the
law. In practice, I think some staff and board members would go ahead
running an outlaw system, others would severer themselves from the
system because they feel they can't stand the legal exposure. Maybe
another group would try to build a system that would operate within
these restrictions, but I don't know anyone among the current leadership
who seemed inclined that way the last time we talked.
This lawsuit is being brought because we don't want to be outlaws, even
if, as Dave says, chances are good that we wouldn't be prosecuted. We
want to be able to pursue our mission without violating the law. I
don't think pursuing this suit would be a deviation from our mission. I
think it is a necessary part of our mission.
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rcurl
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response 67 of 111:
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May 29 05:56 UTC 1999 |
Re #65: Steve, to whom do we give the authority to designate content of
some conferences on Grex as "sexually explicit and harmful to children"
(SEAHTC)? You? Me? The President? Volunteers to offer their own
responses? It certainly would not be fair to give this authority to just
one person: it should really be a committee, in order to obtain the
judgement of a cross section of Grex. If they conducted their business in
Spanish, we could call it the Spanish Inquisition. Then, when the
committee has done their job, will we publish the Grex Reading List of
material dubbed SEAHTC, to see if Grex users agree with the committee?
That list would then become another item on the list, would it not?
It is my opinion that we should leave it to an outside party to choose for
themselves what they deem SEAHTC, rather than have us do something *that
we don't even think should be done*. It should not be too hard to find
some right-wing demagogues to do the job for us. Maybe someone here will
volunteer?
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mdw
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response 68 of 111:
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May 29 07:37 UTC 1999 |
David Cahill says there's some chance we might not be considered to
"have standing". Ultimately that's certainly up to the courts, not us,
to decide, but it sure looks to me like this law could easily be applied
to us, and that we "ought" to have standing. The two issues David
mentioned were "obscene" and "images".
For "obscene", I assume David is talking about Sec.7(6)(a), which
references "1984 PA 343 MCL 752.362". Unfortunately, (6) has that
annoying phrase "unless ONE OR both" apply (caps mine), and Sec.7(6)(b)
says "proves the person displayed the matter to 1 or more specific
minors and knew his or her status as a a minor". Lest we be tempted to
apply plain english semantics to the meaning of "knew his or her
status", sec.7(4) explicitly extends this to include "or recklessly
disregards a substantial risk that the person...under 18 years of age.".
In the context of grex, I think this could be translated to say that the
state could decide to prosecute if they receive a complaint from the
narrow minded biggoted parents of a minor who was caught reading
sexually explicit material on grex, even if that material isn't
"obscene" as defined by 1984PA343MCL752.362.
For "image", I presume David may either be mentioning something
contained in 1984PA343MCL752.362, which is probably irrelevant if it's
hard to prove, or may be referring to sec.3(b) "Sexually explicit
performance" or sec.3(d) "Sexually explicit visual material".
Unfortunately, the bill also contains sec.3(c) "Sexually explicit verbal
material" which seems to define exactly the sort of material one might
find in a conference on grex. Besides the conferences, we also have
"party" on grex, which introduces the possibility of "cybersex", which
if I read sec.3(b) right, might actually count as a "sexually explicit
performance". The definitions in sec.3 appear to overlap, so I suppose
a given material could qualify under multiple definitions in sec.3 and
might even count as multiple violations of different parts of sec.5.
When sec.5 references "verbal" material, it introduces an additional new
concept which isn't well defined -- it requires that the verbal material
also be "harmful to minors". This seems awfully vague to me, but if I'm
to believe the above commentary quoted above regarding the law, the
legislators believe any sexually explicit material is "harmful". I have
no idea how the courts would actually evaluate this; -- I suppose it
depends in part on who has hired Feiger for their side.
One part of the bill appears to be a provision aimed at providing an
exception for ISPs, but this provision is very oddly worded. This
exception is in sec.5(6), and apparently turns off sec.5(3) and (4).
However, there is almost identical language in sec.7(3) and (4), and in
these sections, there is no ISP exception. Since grex isn't a
traditional ISP, it doesn't appear to me that it's sufficient protection
for grex. The two key phrases are "in good faith", and "without
knowledge of the nature". I can think of the following cases for grex.
(1) someone puts sexually explicit jpegs on their grex web page
(a) the jpegs are on grex -- since we don't allow images,
(of any sort) presumably that's covered under "good faith".
(b) the jpegs are actually on another site -- since the images
are actually stored elsewhere, that's ok by us, but
if the weg page referencing them is on grex, I'm not
sure state prosecutors are smart enough not to go after
us. Probably we'd end up in the clear, but this could be
messy.
(2) someone sends or receives sexually explicit mail or "write" or
"talk".
Since we don't and can't monitor such, presumably this would
again be covered.
(3) someone reads a usenet news group via lynx, such as
"alt.binaries.pictures.erotica.amateur.female".
Again, this appears to be safe for us.
(4) Grex decides to host a news server, and one of the news groups
we decide to carry is "soc.subculture.bondage-bdsm".
I believe this newsgroup has very few pictures, but a
lot of the material probably qualifies as "sexually explicit
verbal material". I think this would put grex at great risk,
since that's a group we'd be explicitly deciding to store and forward.
(5) private web pages, such as
"http://www.cyberspace.org/~vector/bitch.log".
This looks to me like more "sexually explicit verbal material",
and as such might present a risk for grex. Since it's not
something we decided, but we do state that grex is "not for
illegal purposes", that might pose some defense "good faith",
but on the other hand, since we know it's there, are we required
to get rid of it, now that we know it's there? Do we need to
go and regularly review all published web pages on grex for
sexually explicit material? Could we get away with just
stating that we forbid access to grex from "michigan minors" and not
actually validate people coming from michigan?
Any of these changes would I think be an extremely unwelcome
change to grex.
(6) Conferences such as "flirt" and "singles". These probably contain
yet more "sexually explicit verbal material", which is worse
yet originated by grex users, some of them minors. These certainly
pose the most central risk to the essential "grex" concept,
since it attacks our core purpose.
(7) Someone creates a channel in party, "#cybersex", and proceeds to
do the obvious. This is something like the sexually explicit
talk, except it could now be publically accessible to anyone
on the system. Presumably, we "could" (and the law may believe
that we "ought") to monitor such things, but this is certainly
a degree of public supervision grex staff would be loath to do.
Note that commercial computer networks, such as AOL, *do*
have a permament staff who monitor unwelcome activity,
so the courts might well find us negligent if we fail to
provide an equivalent amount of monitoring.
These certainly appear to pose a risk to grex as well,
and given the transient nature of party, I'm not sure
how far "good faith" would really carry us, especially
if we aren't willing to convert ourselves to a police state.
If we were a traditional ISP, we had relatively little locally
originated content and it was relatively static, and our customer base
was mostly for-pay "identified" people, we might be at relatively little
risk. But, we have a *lot* of locally originated content, some of it is
very transient, and we have very little handle on the identity or ages
of most of our users. The ISP exception, at least as it's spelled out
in the bill, doesn't really seem to afford us all that much protection,
and in order to be anywhere close to "safe", it looks to me like we'd
have to make some very unwelcome changes.
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pthomas
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response 69 of 111:
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May 29 14:42 UTC 1999 |
Don't forget ASCII-porn...
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rcurl
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response 70 of 111:
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May 29 16:25 UTC 1999 |
Marcus' comments are all quite relevant, but they still don't address
the question of defining SEAHTC. He seems to be saying something like
"I know it when I see it". But that would be one person's opinion.
I'm pursuing this point because I don't think that sexually explicit
material is ever "harmful to children". They should learn the facts of
life very early so that they are just part of their knowledge, essentially
from birth. Our species evolved under that condition (you can't get
very nonexplicit in a cave). Such material could be, in my opinion,
in poor "taste", or irrelevant to anything that matters, or inane,
or stupid, or discriminatory....like a lot of other speech could be....
but not because it is sexually explicit.
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scg
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response 71 of 111:
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May 29 17:49 UTC 1999 |
If there's no clear definition, we can't just come up with a bunch of stuff
and say, "we have this and it's harmful to children." What we can do, and
this doesn't take a huge committee, is say, "here are some examples of stuff
that people have posted here, and we thing some of it could possibly be
construed as being harmful to children." We're not looking for a complete
inventory. We're not looking to prove taht that stuff is harmful to children.
We're just looking for examples of things that might potentially get us into
trouble if this law stands.
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rcurl
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response 72 of 111:
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May 29 23:55 UTC 1999 |
If I had posted something that you afterward aired around as being
sexually explicit and harmful to children, I sure as hell would resent it
- even if it your right to do so (since I wrote it for public
consumption). But it would be misinterpreting and putting a false
significance on what I wrote, for which I would have to report you to the
Misrepresentation Inquisition.
I don't understand how anyone that believe in freedom of speech could with
good conscience put their own interpretation on what others will read into
something said here, and hold it up as stuff that "could possibly be
construed as being harmful to children". To me, the very idea is
sickening. Let those that are *determined* to make such accusations do
their own dirty work.
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scg
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response 73 of 111:
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May 30 01:21 UTC 1999 |
Ok, so we should just assume that because we consider it rude to say that
something could possibly be construed as being harmful to children under the
definition in this law, we should just assume that the state will have the
same scruples?
Those that are determined to make such accusations have it in their interest
to not point out rediculous examples of what this law would ban, until after
the law has held up in court. In selecting such items, we would not be saying
that we think they are harmful to children; just that under this law, they're
something that wouldn't be permitted, even though they should be.
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rcurl
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response 74 of 111:
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May 30 05:32 UTC 1999 |
How can you be sure of that? Is the law so clear that a sentence can be
analyzed under its rules and unequivocably determined to be illegal?
Would it tend to convey that Grex is full of stuff that might fall under
the law according to some if we provide even a small collection of
examples? Should they not be balanced by a proportionate collection of
material that those same persons would consider as not being illegal?
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mdw
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response 75 of 111:
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May 30 06:58 UTC 1999 |
Definitions is a dangerous area to wander into. As speakers of a human
language, we are all more than used to pretty vague non-rigorous
definitions of all sorts of things. A simple example might be that of
"cat". Most of us are introduced to this concept as young children, and
we are pretty much given "definition by example". "See, there's a cat.
Look at the tail. Cat. No, don't pull on the tail. Oooohh, did you
get a boo-boo from the cat? No, don't hit the cat." If asked to define
"cat" as an adult, most of us would probably try some sort of definition
like: "furry meat-eating mammal with 4 feet, pointed ears, sharp teeth,
reflective eyes that can see in the dark, and retractable claws". We
are then left explaining such anonalies as the neighbor's 3 legged cat
which was genetically blind from birth, declawed, and then hit by a car
when chased by a dog. Ok, so maybe it still has fur and pointed ears,
but then there's the mexican hairless cat breed, and of course the
various wild cat strains that have rounded ears. We might then appeal
to science for a definition of "catness", and we might have better luck,
at least until we start looking at the fossil record to see what the
first cat looked like. Even science could be in trouble if next week,
the very shy dwarf antartic sabertooth tiger is found, where it's been
peacefully eating penguins for the past 100 million years, and dodging
man for the past 10,000 thousand years. Now, a cat is a relatively
simple concept -- imagine the difficulty of trying to define a more
complicated concept, such as "love" or "insanity".
In the legal system, of course, these vague non-rigorous definitions
quickly lead to trouble. People are always trying to get skirt around
the edge of the law, so all the vague every-day problems of regular
language quickly lead to insoluable quagmires in the semantic jungle of
everyday life. Lawyers make a lot of money off this whole mess, of
course, but despite all these difficulties, most people agree that law
ought to have a single unambigous meaning, and so considerable effort is
put forth to try to attach a consistent meaning to things. One common
approach is to try to put an unambigous definition right into the law,
and so, for instance, we have this definition of a motorcycle in
Michigan law:
"A motorcycle is a two- or three-wheeled motor vehicle which has:
* A gasoline engine with more than 50 cubic centimeters (cc) piston
displacement and two brake horsepower; and
* A top speed over 30 miles per hour on level surfaces.
A motorized two- or three-wheeled vehicle which meets or exceeds these
specifications is classified as a "motorcycle" even if it has a working
pedaling system."
Ok, seems pretty straight-forward, right? We can look at a vehicle, see
if it matches the above, and if it is, it's a motorcycle. Clearly, a
Ford Taurus is not, nor is a domestic cat. On the other hand, a 1999
Yamaha Royal Star Tour Classic, or a 1997 Harley-Davidson FXD clearly do
qualify. Then, there are stranger objects. For instance in 1768, a
crazy frenchman built a 3 wheeled steam tractor. Since it was powered
by wood, and not gasoline, it apparently wouldn't qualify as a
motorcycle, which seems fair enough. On the other hand, the
three-wheeled Davis automobile, made in Van Nuys, CA 1947-1949,
apparently does count as a motorcycle, even though it has an enclosed
body and looks rather more like a car than a motorcycle. (There are,
apparently, 4 of these strange vehicles in Michigan, more than in any
other state in the union.) On the other hand, you can purchase an
electric motorcycle from eCycle, which, since it doesn't have a gasoline
engine, apparently wouldn't qualify as a motorcycle in Michigan. You
can also obtain a propane powered motorcycle from "ATV-USA", although
I'm not sure how street legal these would be. Or, you could certainly
convert most any motorcycle to burn propane; the technology is not hard,
and in Calfornia, it seems there would even be a tax advantage. In
michigan, the result would appear to be in a sort of legal limbo. A
diesel engine might be more of a challenge on a motorcycle, since diesel
engines have a narrower RPM range and are usually heavier. A truely
scary concept would be a gas turbine powered motorcycle; I heard they
make really small gas turbines for certain military drones. A gas
turbine introduces the exciting prospect of roasting pedistrians who are
careless enough to cross the street behind your "motorcycle" at a
traffic light, or of suffering a flameout from sucking in a stray
McDonalds food package on the highway. Rocket assist could also be
entertaining, especially for passing on narrow country highways.
Getting back to SEAHTC. I agree, the phrase "harmful to children" is
wondrously ill-defined. The legislators did make an effort in the bill
to define what they meant by "sexually explicit" in sec.3 of the bill.
There are several sources for definitions that would matter in this
context. The first definition that matters is what an irate parent,
upset at what what their child has found on grex, might define as
SEAHTC. This definition is most vague, because there are likely to be
individually as many different definitons are there are parents in
Michigan. Nevertheless, this definition is important because it defines
the first increment of pain for grex. The next definitions that matter
are whatever the state police (or other law enforcement agency) use, and
whatever the state prosecutors decide to use. These agencies are likely
to pick a definition that is more consistent. These agencies, being
political animals, are also likely to involve a certain amount of
"public policy" (or governmental agenda) in deciding what definition to
use, as well as in generally deciding which cases to pursue. The agenda
is likely to include some mix of responding to complaints (oil the
squeaky wheel) and doing what will read well in the newspapers ("being
tough on crime"). The final arbitrator of what SEAHTC means is, of
course, the court system itself. The courts are, however, not likely to
work very hard at redefining SEAHTC. Instead, they are likely to rely
on what the legislators said when they composed the law, as well as
arguments of the prosecutor and defense, which may include references to
past decisions, or other random material, in deciding what the "fairest"
definition of SEAHTC is. Historically, the courts have had a tough time
deciding what is actually obscene. A good part of the problem here is
that this is very much a subjective impression -- what is obscene to one
person, may be a matter of everyday speech to another. (For example;
much of the material on the Nixon tapes can't be broadcast on TV/radio
because it contains a very high percentage of "the 7 words you can't
say".) SEAHTC is likely to be even harder for the courts to decide.
I don't think exactly what SEAHTC gets defined as actually matters all
that much to grex. Unless SEAHTC is defined so narrowly as to be
practically impossible, even by someone deliberately trying to create
it, it seems to me that grex runs a significant risk. The more narrow
the definition, perhaps the less the risk for grex, but the harder it is
to determine the definition, the more expensive and problemmatical it
becomes for grex. The penalities are pretty stiff here; I don't think
anyone on the grex staff or board wants to see any user on grex become a
convicted felon because of their activities here, and I'm even more sure
that nobody on grex staff or board wants to be held responsible as well,
and also become convicted felons. There are also the matters of the
court costs, and legal fines, which could well be higher that the fines
directly provided for in the bill, not to mention the possible jail
time. Basically, we don't want to go there, and that applies even if we
managed to win every case that ever happens involving grex. (Going to
jail for a case you ultimately win on is still a big drag.) That means,
this bill puts us under heavy pressure to develop a local formulation of
SEAHTC that is not just a strict interpretation of whatever the courts
decide it means, but instead to develop a very elastic expansive local
definition that is basically the *union* of all the possible definitions
an irate parent might decide to apply to grex, to avoid even the least
possibility or risk of a felony investigatino of grex. And that is the
most dangerous part of this bill; not what it directly implies to us,
but what it might inspire us to do to ourselves, to avoid the least risk
of being prosecuted under this bill.
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rcurl
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response 76 of 111:
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May 30 18:51 UTC 1999 |
Exactly - and it is already, before it is enacted, tempting people here
to classify some speech that appears on Grex as SEAHTC.
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rickyb
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response 77 of 111:
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May 31 13:52 UTC 1999 |
time, once again, is my problem in this conference. I was writing a response
(after reading all the responses since my last post up there) and got logged
off the system for being idle. I've not masteres the art of off-line writing
and uploading my response.
IAE, mor my part I hope Grex joins this suit, but I hope _many_ others are
solicited as plaintiffs. The don't have to have servers in Michigan (do
they?). Once they're are on the internet and conducting
"business"/communications in Michigan they could become subject to this law,
or am I way off base on that one (that might be where the fed supreme court
may come in as well). Even so, there are lots of ISP's and other systems
operating within Michigan who should become party to this not just to deflect
liability from Grex as a plaintiff, but to demonstrate a much stronger case
for freedom of speech than a few thousand people, mostly in Ann Arbor.
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janc
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response 78 of 111:
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May 31 16:41 UTC 1999 |
Arboret/M-Net has been asked to participate too. I'm sure there will be
a longish list.
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dpc
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response 79 of 111:
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May 31 16:46 UTC 1999 |
Right, there will be a longish list. If past experience with these
suits is any guide, Grex' name will appear in the media only twice,
if at all: first, on the filing of the suit, and second, when it's
decided.
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rcurl
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response 80 of 111:
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May 31 20:23 UTC 1999 |
Frank or Ernest yesterday said "I can tell when art leaves off and
vulgarity begins - it's when I start paying attention". This wry remark
seems to apply equally to those adopting extreme positions in favor of or
opposed to media censorship.
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drew
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response 81 of 111:
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May 31 20:29 UTC 1999 |
I'm curious of whether the guys with the Davis three-wheel cars pay motorcycle
liability insurance rates (generally lower than cars when I was buying it)
and licence plate fees.
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mdw
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response 82 of 111:
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Jun 1 01:56 UTC 1999 |
They're collectors. There's a good chance some or all of them aren't
licensed for the road anymore, but if they are, so far as I can tell,
they'd be a motorcycle to the state of michigan. To the insurance
company, they might look and cost a lot more like a Ferrari than a Honda
- replacement value on something so rare must be pretty steep.
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devnull
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response 83 of 111:
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Jun 1 04:35 UTC 1999 |
So the text of the bill seems to say:
(f) "Internet" means that term as defined in section 230 of title II of
the communications act of 1934, chapter 652, 110 Stat. 137, 47 U.S.C. 230.
umm, `internet' was defined in 1934?
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brighn
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response 84 of 111:
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Jun 1 05:21 UTC 1999 |
BTW, a related matter of censorship is Senate Bill 239, which passed the
Senate on the 25th and is in the House now. This one requires that public
performances by "Tipper stickered" performers also carry the Tipper Sticker
(The Tipper Sticker is the "Parental Advisory Label: Explicit Lyrics" sticker
primarily on hip-hop, rap, industrial, and heavy metal music.)
Ten years of a Republican Governor is definitely starting to bear its sickly
fruits upon this state.
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aaron
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response 85 of 111:
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Jun 1 13:07 UTC 1999 |
re #83: Sure. Al Gore was a busy boy back then.
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janc
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response 86 of 111:
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Jun 1 14:06 UTC 1999 |
The communications act of 1934 has been regularly ammended.
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aruba
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response 87 of 111:
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Jun 1 15:11 UTC 1999 |
Re #83: I wondered about that too...
Re #84: Engler has been governor for 8.5 years.
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aruba
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response 88 of 111:
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Jun 1 18:44 UTC 1999 |
John Remmers appointed me to take care of arranging a special board meeting
if we need one. I just got off the phone with Michael Steinberg, and he said
he will have a conference call this afternoon with all the lawyers involved
in the case, and after that he will be able to give us a definite date by
which they need an answer from Grex. It will certainly be within two weeks,
though, so we will need to have a special board meeting. Mr. Steinberg said
he will be able to attend. We discussed either Thursday the 3rd or Monday
the 7th. He'll call me back and let me know which, and then I will arrange
for a place. I have a feeling we should book a place slightly larger than
the Kids room at Zingerman's; anyone have any suggestions?
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