Date: Sat, 25 Oct 1997 15:05:00 -0500 From: bill@scconsult.com (Bill Stewart-Cole) Newsgroups: alt.religion.scientology,comp.org.eff.talk,alt.censorship Subject: Re: Internet Ventures, Inc. (Response) Message-ID: References: <344cca1d.8671929@news.supernews.com> <344f85c8.61309398@news.calstate.edu> <34513C75.312B433B@tidepool.com> Organization: Despams 'r' us Rogue Midwest Office X-Newsreader: MT-NewsWatcher 2.3.5 NNTP-Posting-Host: sc1.scconsult.com Lines: 213 Path: sn.no!nntp.uio.no!Cabal.CESspool!bofh.vszbr.cz!sc1.scconsult.com!bill Xref: sn.no alt.religion.scientology:387758 comp.org.eff.talk:73793 alt.censorship:171260 In article <34513C75.312B433B@tidepool.com>, Donald Janke wrote: > This is an open letter to Netizens who have been following the dispute > between Grady Ward and Tidepool Internet. > > I am the President of Internet Ventures (IVI), Inc.; and Northcoast > Internet (NCI), Inc. is part of IVI's family of Internet Service > Providers > (one of seven wholly owned ISP subsidiary corporations). Tidepool > Internet > is a d.b.a. (doing business as) of NCI. You are being very brave sticking your head up here. Note that a lot of the replies you have gotten from alt.religion.scientology users are very much from a 'war' perspective, where there is no neutral ground and no well-meaning mistake possible. There is some basis for this somewhat paranoid attitude, but it can be very disorienting and dangerous to stumble upon people who are acting like soldiers when you don't even know there is a war going on. Because you are getting enough of the war propagandacritique of your actions, I'll give you a perspective which might be a bit easier to relate to. I have run a small commercial online service, and if I didn't hate competing with huge companies who happily burn money to be price leaders, I'd be running an ISP today. I've dealt directly with policy and legal issues and have been faced with lawyers complaining to me about how their client was treated by one of my customers. Thankfully, I never actually had to deal with a real lawsuit. I hope you are as lucky. I am not speaking from any particular legal expertise, but simply from my personal experience. Obviously you should discuss anything regarding legal matters with a lawyer who is specifically familiar with communications law, and not take anything I say here as legal advice. I disclaim any liability beyond what you have paid me for the advice :) Quoting from your statement: > In other words we are not in a position to dictate the terms of free > speech on the net; we are just trying to prevent getting run over by it > (thanks Bill for allowing a modified quote). A good goal. The best way to avoid being run over by it is to get out of the way. I suggest that you direct your legal counsel to Cubby v. Compuserve and to a more recent case involving Prodigy. I would also suggest that any lawyer looking at content policies of online services read the 1989 article on these issues in the Connecticut Law Review by Lofty Becker, a law professor and longtime forum manager on CompuServe. While these are not definitive law, the arguments and outcomes of the cases all point in a common direction: the less you actually claim to control or try to control, the safer you are from legal liability. Maintaining that safety may equate to exposing your users to the legal consequences of their own actions, but that is a natural consequence of free speech. In simple terms: if a user wants to expose himself to a defamation suit, don't put yourself in between the suing party and the user. If you terminate ONE user for profane criticism, and then modify your policy to legitimize your actions, you will be expected to do the same in all cases in the future and you will likely end up faced with your own actions used in court as evidence that you failed to act up to your own rules in some later incident. Don't fall into that trap. There are few places to draw sustainable lines in this, but it seems to me that Grady's case is well into the steep part of the slippery slope. Stick to legally defined bad content (i.e. *criminal* content such as kiddie porn and commercial software) and you will have a much easier time standing in one place, which you must do to be legally safe. > In reading postings in this newsgroup, and other related newsgroups, it > seems that some posters object to the locking of Grady's account. Other > posters feel the locking had merit. It also appears that some posters > feel > they have not heard enough information about this dispute. I think this implies something very dangerous. Free speech and corporate policies that impact liability are both matters which should not be subject to public referenda. I don't suggest that you reverse the NCI decision to terminate Grady's account because it is an affront to free speech or because most a.r.s readers think it stinks, but because it is very dangerous to your future liability for not doing the same thing in similar cases. > Our actions in this dispute were necessitated by abusive and > defamatory > comments, in a single posting, that Grady directed towards another human > being. We became drawn into this posting when we received a formal > complaint regarding his > postings. You should note that Grady has been making very similar posts since before he was a Tidepool user. The 'other human being' in question is in fact a lawyer for the "Church" of Scientology who is already very much involved in a lawsuit regarding Grady's postings, although as far as I know none of the profane critiques of Ms. Kobrin are formally part of any suit. Note that NCI and IVI have never been brought into that case, even though Grady posted a large number of the posts which ARE part of the suit via Tidepool. > We had no choice but to terminate his account, under the > original > terms he himself agreed to upon opening his Tidepool account. Having read those terms, I don't see how you can make this argument. The NEW terms clearly make the termination valid, but I suspect that given the manner in which he apparently set up his account and the timing of the change in terms, you would have a very hard time legally supporting the application of the new terms to his account and its termination. > As we all know, the bounds of free speech limits on the Net are > fragmented and unclear. However, there must be some outer limit to free > speech. Exactly where that limit occurs is subject to interpretation. You need to recognize 2 different sets of bounds. The law is fairly clear on what the government can do, and it is currently no more and no less than they can do in regards to print. IVI is not the government however, so you can safely ignore much of that. Thanks to the failure of the CDA, ISP's like your subsidiaries are NOT responsible for enforcing vague content rules. The powers of ISP's are much less well-defined, but the case law is all consistent with a model where you can define whatever limits you want on your users, but you must then accept the responsibility for applying those limits consistently. For your own good, you are likely to be best off adopting a very hands-off policy. There are a lot of good content-neutral rules you can institute which have side-effects on content because the worst kooks generally not only post garbage, but post it to dozens of groups, or with forged headers, or in some other way that steps over *technical* lines. > However this dispute is not about mine or other's personal opinions > of free > speech, it is about the outer limits that a company must set when they > decide to be > in business. As a company our limit is set when a another netizen > complains that > they were offended by language so strong that a lawsuit could result. That's MUCH too far into the gray. Lawsuits against providers have been brought without any such 'strong language' involved. You really want to avoid being a part of such a suit. If you say "We will not permit defamation" and fail to catch the calmly worded defamation and fail to terminate the poster when you get e-mail claiming it to be defamatory, you will, have dug your own hole. Determining whether speech is defamatory *legally* is a matter for a court of law. Ironically, the case law supports the argument that if you take defamation to a ludicrously profane extreme, it passes out of the realm of actionable defamation and becomes legally protected parody. See Falwell v. Flynt. Simply put, calling the general counsel for Scientology a "shit-vagina whore" and describing her engaging in actions which are nauseatingly obscene is probably so far out on the edge that Grady (and his ISP) is immune to being sued for it. He might be in more trouble if he was much less profane and said something like "Helena Kobrin is sexually involved with some of her co-workers and has a bad gynecological infection." Reiterating a point from above; he has been doing this parodical profanity for quite a while and is being sued for *other* posts by the CoS but there has been no suit regarding defamation. (he is being sued for posts soliciting research materials, an act which the CoS considers an attempt at copyright violation) > However, > even here the law seems open to interpretation until one stands before a > judge and > says "YOU DECIDE". Exactly. The determination of what constitutes protected satire and what constitutes defamation is a matter for the courts, and it always has been and always will be. If an ISP *tries* to make that determination and act on it, the ISP will be called in to court to justify its decision every time someone disagrees with it. It is no accident that Prodigy and CompuServe have been sued for defmation by users, while the traditional ISP's who generally do not attempt to control such speech have not. > Rather than taking it to the "Judge" I am proposing that we (Grady and > Tidepool) take it to the netizens. What I am suggesting is that this > dispute be opened to all on a newsgroup where both sides of the issue, > and opinions of interested parties, can be presented in an open forum. > In order for Grady to participate, and present his opinions, I have > asked the > Tidepool folks to "unlock" Grady's user account. This does assume that > while participating in a "court of netizens" Grady will abide by the > original terms which > he agreed to when he opened his Tidepool account. Which do not seem to speak to profanity or even defamation at all. I think the *original* terms were just fine. They delineate unacceptable use in an objective manner. There isn't much room for debating definitions. The new terms are dangerous. You do not protect your business by adopting fuzzy terms, you merely assure that you will someday be asking a judge to define them for you. > I would like to suggest a newsgroup, for this discussion, should be > where we are > "on topic" to discuss "the acceptable outer limits of free speech" as > opposed to a newsgroup where free speech is utilized to state opinions > about other topics. Two suggestions are "alt.censorship" and > "comp.org.eff.talk". I would welcome Grady's opinion on where he feels > a discussion of "free speech" would be "on topic". -- Bill Stewart-Cole bill@scconsult.co