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Re: Utah governor signs Net-porn bill

  • From: Robert Bonomi
  • Date: Tue Mar 22 13:46:19 2005

> From owner-nanog@merit.edu  Tue Mar 22 11:38:22 2005
> Date: Tue, 22 Mar 2005 09:33:44 -0800 (PST)
> From: Bill Woodcock <woody@pch.net>
> To: Richard Irving <rirving@antient.org>
> Cc: Roy <garlic@garlic.com>, "Fergie (Paul Ferguson)" <fergdawg@netzero.net>,
>         nanog@merit.edu
> Subject: Re: Utah governor signs Net-porn bill
>
>
>     > > It's also voluntary on the part of the service provider.
>     >    What !?!  Surely you Jest!
>
> Uh, yes, I was joking.  Unfortunately, I do believe, on credible evidence, 
> that there are people stupid enough to be trying to legislate the 
> operation of the Internet without having first understood how it's done 
> right now.  Case in point.

You may have _thought_ you were making a wry joke.  I'm *NOT* so sure.

"Can"/"may", and "shall"/"will" _are_ "terms of legal art", with precise
_legal_ meanings,  Notably, the former terms denote "discretionary" actions,
while the latter ones denote "mandatory" actions.   The RFC 'conventional'
usage derives from the _legal_ meanings of those terms.

The Utah statute is "bad law", and is _highly_unlikely_ to withstand a
Constitutional challenge.  Because it is the _government_ that is compiling,
maintaining, and distributing the "banned" list.  The "chilling effect" on
'free speech' argument is nearly certain to succeed.

That _aside_, the "may not" language, as opposed to "shall not", looks like 
a *major* goof on the part of those who drafted the legislation.  One might
argue that the 'legislative intent' was to make the action mandatory on the
part of the service provider, but that would be a *difficult* 'sell' to the
courts - considering the *long* history of the distinct, disjoint, meanings
of can/may and shall/will.

For any potentially affected provider, it is *definitely* worth running the
idea past one's professional legal counsel -- "if the law says we 'may not'
do this, does that mean it is at our option, or is it mandatory?"





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