P-list Lawyer

[doktor at primenet.com]

The cry goes up among the Pyn-heads: Is there a lawyer on the list?  Yes.
Me.  (Actually, I've been calling myself a recovering attorney recently,
since I stopped actively practicing last March.)

I am, I should note, a U.S. lawyer and have no idea how to assess our
potential civil or criminal liability under the laws of other countries.

I don't claim to be an expert on internet law and would mistrust anyone who
did.  The field is just too new, by the law's glacial standards of
movement, for anyone to say he or she has a handle on all of the possible
legal ramifications posed by, say, an 11-year-old's logging onto the
P-list.  The most far-reaching law under which we P-listers could find
ourselves in legal trouble is the Communications Decency Ammendment, which
has yet to be construed by the Supreme Court.  Pending the Supremes'
decision in the CDC case now before it, enforcement of this statute was
enjoined by the Third Circuit (A.C.L.U. v. Reno, 3d Cir. No. 96-1458, June
11, 1996).  I have quoted the text of the relevant portions of CDA at the
end of this post.

With those caveats, here's how I see things:

* Some on the list have expressed their concern about the occasional use of
rough language or descriptions of aberrant sexual acts on this list.  While
disseminating obscene materials is a crime in many jurisdictions, nothing
on the P-list even approaches the legal definition of obscenity.

* If someone knowing used the P-list to lure an underage person into
illegal activities or crossing state lines for sexual purposes, that person
could conceivably be criminally or civilly liable, but other P-listers
would not.

* If the CDA is declared constitutional, then anyone posting to or
maintaining the P-list could conceivably be prosecuted under it.  While
nothing on this list meets the test of obscenity, it may be considered,
from time to time, indecent.  "Indecent" was not defined in the CDA.

* As the Third Circuit has enjoined enforcement of the CDA, and since the
FBI and others surely have bigger fish to fry, the notion that the
appearance of a putative 11-year-old on the P-list was part of a sting
operation is unlikely, to say the least.

* At this time, an adults-only warning on the P-list is not legally
warranted.  However, if the CDA passes constitional muster, the list might
then be well advised to post such a warning, since good-faith efforts to
deter minors from accessing indecent materials is a defense under the CDA.

In other words, don't worry until that fateful day when the First Amendment
is flushed down the sewer by a decision upholding the CDA.

"NOW," he said, stepping out of his role as an associate of Salitieri,
Nash, deBrutus & Shorte, P.C.....

Some have wondered if the post which caused this fuss was really keyed by
an 11-year-old aspiring writer.  I mean, as I recall, the young writer said
he joined the P-list when he went looking for a forum for young writers.
Is that plausible?  That bit of the story just didn't hang together for me.

Some on the list have narcisistically wondered if TRP himself ever lurks
here.  I like Charles_Sligh at BAYLOR.EDU's crackpot theory that our young
writer is the P-man himself, taking on the role of his protagonist in "The
Secret Integration."

Of those on the list who would hang some sort of kids-stay-out sign on our
door, I ask, would you also put the same warning on Pynchon's books?  Would
you support a bookstore that refused to sell a copy of GR to an
11-year-old?  I have kids too, and I do try to exert some control over what
they see and read.  They're not 11 yet, but if at that age they want to
read Pynchon or hang out on this list, I'd be more proud than concerned.

Legally yours,

Jimmy

http://www.angelfire.com/oh/Insouciance/index/html



RELEVANT PORTIONS OF THE COMMUNICATIONS DECENCY AMMENDMENT

* * * *

"(a) Whoever --

"(1) in interstate or foreign communications-
     "(A) by means of a telecommunications device knowingly-

        "(i) makes, creates, or solicits, and
        "(ii) initiates the transmission of, any comment, request,
 suggestion, proposal, image, or other communication which is obscene,
 lewd, lascivious, filthy, or indecent, with intent to annoy, abuse,
 threaten, or harass an other person;

     "(B) by means of a telecommunications device knowingly-

        "(i) makes, creates, or solicits, and
        "(ii) initiates the transmission of, any comment, request,
 suggestion, proposal, image, or other communication which is obscene
 or indecent knowing that the recipient of the communication is under
 18 years of age regard less of whether the maker of such communication
 placed the call or initiated the communication;

 * * * *

 "(2) knowingly permits a telecommunications facility under his control
      to be used for any activity prohibited by paragraph (1) with the
      intent that it be used for such activity,

shall be fined under title 18, United States Code, or imprisoned not more
than two years, or both.";

* * * *

"(d) Whoever --

 "(1) in interstate or foreign communications knowingly-

     "(A) uses an interactive computer service to send to a specific
 person or persons under 18 years of age, or

     "(B) uses any interactive computer service to display in a manner
 available to a person under 18 years of age,

 any comment, request suggestion, proposal, image, or other
 communication that, in context, depicts or describes, in terms patently
 offensive as measured by contemporary community standards, sexual or
 excretory activities or organs, regardless of whether the user of such
 service placed the call or initiated the communication; or

  "(2) knowingly permits any telecommunications facility under such
       person's control to be used for an activity prohibited by
       paragraph (1) with the intent that it be used for such activity,

shall be fined under title 18, United States Code, or imprisoned not more
than two years, or both.

 "(e) In addition to any other defenses available by

    "(1) No person shall be held to have violated subsection (a) or (d)
    solely for providing access or connection to or from a facility,
    system, or network not under that person's control, including
    transmission, downloading, intermediate storage, access software, or
    other related capabilities that are incidental to providing such
    access or connection that does not include the creation of the
    content of the communication.

    "(2) The defenses provided by paragraph (1) of this subsection shall
    not be applicable to a person who is a conspirator with an entity
    actively involved in the creation or knowing distribution of
    communications that violate this section, or who knowingly
    advertises the availability of such communications.

    "(3) The defenses provided in paragraph (1) of this subsection shall
    not be applicable to a person who provides access or connection to a
    facility, system, or network engaged in the violation of this
    section that is owned or controlled by such person.

    "(4) No employer shall be held liable under this section for the
    actions of an employee or agent unless the employee's or agent's
    conduct is within the scope of his employment or agency and the
    employer (A) having knowledge of such conduct, authorizes or
    ratifies such conduct, or (B) recklessly disregards such conduct.

    "(5) It is a defense to a prosecution under sub section (a) or (d)
    that a person-

       "(A) has taken in good faith, reasonable, effective, and
     appropriate actions under the circumstances to restrict or prevent
     access by minors to a communication specified in such subsections,
     which may involve any appropriate measures to restrict minors from
     such communications, including any method which is feasible under
     available technology; or

       "(B) has restricted access to such communication by requiring use
     of a verified credit card, debit account, adult access code, or
     adult personal identification number.

* * * *

 "(f)(1) No cause of action may be brought in any court or
 administrative agency against any person on account of any activity
 that is not in violation of any law punishable by criminal or civil
 penalty, and that the person has taken in good faith to implement a
 defense authorized under this section or otherwise to restrict or
 prevent the transmission of, or access to, a communication specified in
 this section.

 "(2) No State or local government may impose ant liability for
 commercial activities or actions by commercial entities, nonprofit
 libraries, or institutions of higher education in connection with an
 activity or action described in subsection (a)(2) or (d) that is
 inconsistent with the treatment of those activities or actions under
 this section: Provided, however, That nothing herein shall preclude any
 State or local government from enacting and enforcing complementary
 oversight, liability, and regulatory systems, procedures, and
 requirements, so long as such systems, procedures, and requirements
 govern only intrastate services and do not result in the imposition of
 inconsistent rights. duties or obligations on the provision of
 interstate services. nothing in this subsection shall preclude any
 State or local government from governing conduct not covered by this
 section.

* * * *