Censorship and Nyx by Darlene A. Cypser, Esq. Nyx Net does not censor the content of messages sent through Nyx. We respect our user's privacy and freedom of speech. The administrators of the system do not read users' e-mail or censor their postings or edit their webpages. With only a few exceptions, Nyx also does not censor the messages that come into Nyx from outsiders. (Nyx does limit postings to the local group Nyx.misc to Nyx users and does do some filtering of unsolicited bulk commercial e-mail.) Users are exclusively responsible for what they access through Nyx and what they contribute to the Internet from Nyx. Free Speech The Internet has been recognized as "the most participatory form of mass speech yet developed," which is entitled to "the highest protection from governmental intrusion" (ACLU v. Reno, 929 F. Supp 824, 883 (1996) as quoted by the U.S. Supreme Court in Reno v. ACLU, No. 96-511 (1997)) The 1st and 14th Admendments of the United State's Constitution prohibit the U.S. government and the governments of the individual states of the U.S. from passing or enforcing laws which abridge the freedom of speech. Censorship These constitutional restrictions do not apply to individuals or non-governmental entities. An Internet Service Provider may choose to censor users' communications on the Internet. However, by doing so the ISP takes on the responsibility of determining what is appropriate content and consistantly apply those standards. Once an ISP begins to censor the content of communications on its networks it takes on responsibility for that content and can be held responsible for communications on its network which are libelous or in violation of copyright. Common Carriers Most ISP's choose not to take that route. Most choose to hold themselves out as "common carriers." There is a long tradition in U.S. common law that a "common carrier" is not responsible for the content of the material passes through its service. Originally this concept applied to carriage services, shipping services, and railroads. In more recent times this concept has been applied to telephone services and specifically incorporated in to regulations of the Federal Communications Commissions. Thus if you say libelous things about someone over the telephone or fax pages of a copyrighted book to someone, the telephone company is not responsible for your activities. In the same manner an ISP that is a common carrier is not responsible for the content passed through its service. FCC regulations do not define a "common carrier" but defer to common law definitions. (Something that is not uncommon in U.S. law.) Under common law there are seven basic requirements of a common carrier: 1) the entity must provide services for hire; 2) the entity must be primarily engaged in the business in question; 3) the service must be provided on a regular basis; 4) the entity must be willing to serve all who apply; 5) the service must be provided without discrimination; 6) the service must be operated in the public interest; 7) the entity must not control the content. A quick review of these requirements will easily demonstrate that most commercial ISP's who choose not to censor content qualify as "common carriers." Nyx, however, fails the first requirement because it chooses to provide its service for free rather than "for hire." Courts in the U.S. (for example, Brockway v. Travelers Ins. Co., 321 N.W.2d 332 (1982)) have ruled that when the service is provided for free of charge the entity providing the services cannot claim common carrier status. "Re-publication" Nyx Net, however, still choses to repect the privacy of users and not to censor content. Since Nyx Net does not censor content it cannot be charged with "re-publication" of a libel or copyrighted material. "Re-publication" requires "knowingly" transmitting the libel or the copyrighted material. Nyx Net does not "knowingly" allow either to be done on Nyx. Terms of Service Nyx Net has policies which determine what is appropriate use of Nyx. Some of these policies are dictated by Nyx Net's status as a non-profit (For example, using Nyx for a for-profit business is prohibited.); Some are dictated by law (Nyx Net prohibits all illegal use of Nyx.); Some are dictated by determinations of the Board of Directors of Nyx Net as to what are appropriate uses of Nyx's limited resources. Violations of some of these policies can result in termination of a users account. However, the enforcement of these policies is between Nyx Net and the users of Nyx. None of these policies create any rights in outsiders to dictate how Nyx is to be run. Complaints Nyx users and outsiders are encouraged to notify the Nyx administrators of violations of the law or violations of Nyx's Terms of Service. These complaints should contain specific allegations and information (time, date, headers, etc.) which will allow the administrators to investigate the incident. Vague, general complaints will be ignored. The alleged incident must have occurred on or from Nyx. (We will not attempt to control Nyx user's behavior on other networks.) If the investigations of the administrators determines that there is evidence of some violation, the Nyx user will be contacted. Nyx users will be given a chance to explain the incident. Further action is at the sole discretion of the Nyx administrators and the Nyx Net Board of Directors. If the investigation of the administrators does not find any evidence of any violation, the administrators may drop the matter without contacting the Nyx user complained of.