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affeff.htm
EFF AFFIDAVIT
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
AMERICAN CIVIL LIBERTIES )
UNION OF GEORGIA, et al, )
)
Plaintiffs, ) CIVIL ACTION
)
vs. )
) FILE NO. _______
ZELL MILLER, in his official )
capacity as Governor of the )
State of Georgia, et al, )
)
Defendants. )
DECLARATION OF SHARI STEELE
County of Charles )
State of Maryland )
1. My name is Shari Steele. I am employed as staff counsel for the
Electronic Frontier Foundation (EFF), a nationwide, nonpartisan
nonprofit civil liberties organization of approximately 3500
individual members. EFF works in the public interest to protect
privacy, free expression, and access to public resources and
information online, as well as to promote responsibility in new media.
EFF is committed to defending civil liberties in the world of computer
communications, to developing a sound legal framework for that world,
and to educating government, journalists, and the general public about
the legal and social issues raised by this new medium. The facts set
forth in this declaration are based upon my personal knowledge and
upon the business records of EFF. I submit this affidavit on behalf of
EFF.
2. EFF is a nonprofit organization incorporated under the laws of
California, with our principal place of business in California. EFF
has members throughout the United States, including Georgia.
3. Since our inception in 1990, EFF has devoted considerable resources
to educating the public about civil liberties and other legal issues
as they arise in the context of online computer communications, or
"cyberspace." Throughout EFF's existence, we have initiated and/or
moderated several online forums, including forums on the World Wide
Web, the WELL (a California-based conferencing system and Internet
Service Provider), and USENET discussion groups. These forums are
primarily interactive discussion groups, but EFF representatives also
frequently participate in online "chat" rooms and in special online
events that allow users to discuss and debate a variety of legal and
constitutional issues.
4. In addition, EFF has our own computer site on the Internet, and our
name (sometimes referred to as a "domain" name) is "eff.org." EFF's
public education efforts include the maintaining of extensive online
resources, both on the forums we run with online service providers and
on our own Internet site. These resources include articles, court
cases, legal papers, news releases, newsletters, and excerpts from
public discussions related to EFF's legal, legislative, educational
and advocacy work. EFF also publishes web pages on the World Wide Web,
which can be accessed at http://www.eff.org/.
5. EFF maintains eight online mailing lists, both for specific
civil-liberties and activist activities, and for informing the public
about our activities. Our primary mailing list has a subscriber base
of approximately 7500 individuals, including many located in the State
of Georgia.
6. On average, EFF's web page is accessed by Internet users more than
300,000 times every day. Through our web site, EFF transmits between
1.2 to 1.5 gigabytes of information per day. Roughly speaking, this
means that EFF's web site transmits the equivalent of 250 to 350
million words, or two entire encyclopedias' worth of information, over
computer networks every day. A substantial volume of this information
is transmitted into the State of Georgia or through wires located in
that State.
7. Although EFF's web site and many of our online resources are based
on a computer in California, those resources are accessible to EFF
members and other interested individuals throughout the world and in
every state of the United States, including the State of Georgia.
Similarly, the EFF resources and forums that are maintained on other
national commercial online forums can by accessed by those systems'
subscribers throughout the United States, including the State of
Georgia.
8. EFF routinely advises individuals and groups about their legal
rights and responsibilities in the online world. In addition, EFF
advocates positions, and promotes discussions, about what those rights
and responsibilities should be. Since virtually all interactions on
the Internet and other computer networks are at their essence
communication and expression, EFF's policy positions and the
discussions we foster strongly emphasize freedom-of-speech concerns.
Similarly, because free flow of information made possible by this new
online technology creates the possibility of extraordinary intrusion
into the privacy of computer users, EFF's policy positions and the
discussions we foster strongly emphasize the issues of protection of
online privacy, including the right to communicate anonymously over
computer networks and the right to use encryption software to prevent
unauthorized interception and viewing of private communications sent
over computer networks.
9. As a part of EFF's efforts to protect the privacy of on line users
and in furtherance of free speech, EFF routinely assists our members
and members of the general public in protecting their privacy when
communicating over the Internet, while at the same time emphasizing
the importance of using these privacy rights responsibly. EFF
facilitates responsible anonymous communication over computer networks
in several ways. For example, many participants in online discussions
and chats sponsored by EFF use "handles," i.e., assumed names, rather
than their actual names. EFF also provides links on our web page to
so-called "anonymous remailers," which are computers on the Internet
that will forward Internet e-mail anonymously, allowing an even
greater level of privacy for online communications than can be
obtained by the use of pseudonyms alone. EFF is aware of and
facilitates the responsible use of online handles or pseudonyms, and
of communications via anonymous remailers, because the ability to
communicate over online networks in this way allows users to
participate in chats or discussions groups without abandoning their
privacy. It permits users to participate in these discussions without
revealing their name to strangers, and without fear of retaliation for
the expression of unpopular or controversial viewpoints. This
protection of privacy furthers the public interest by facilitating
freer and more frank discussions, especially on controversial issues
such as questions of online privacy and encryption software.
10. Similarly, EFF wants to make the information that we pub lish on
such issues freely available to computer network users who seek it but
who want to obtain it anonymously, i.e., by requesting it over
computer networks using a pseudonym or handle. Again, EFF believes
that by protecting the privacy of users by allowing them to obtain
information of public interest anonymously, information on these
issues can be disseminated more fully and freely over computer
networks.
11. In addition, nearly all of EFF's approximately 3500 mem bers use
online communications. EFF members both receive and transmit
information through a variety of online communications, including the
World Wide Web, online mailing lists, discussion groups, chat rooms,
computer bulletin boards, and private e-mail. Many of EFF's members
use handles or pseudonyms to protect their privacy when communicating
over computer networks. Many of these communications pass through the
State of Georgia.
12. I have reviewed the language of O.C.G.A. 16-9-93.1, and neither I
nor EFF can determine from its language whether commu nication over
computer networks using a pseudonym or assumed name constitutes the
use of a name that "falsely identifies" the user for the purposes of
the criminal sanctions imposed by this statute. Because EFF actively
facilitates and encourages the responsible use of pseudonyms in online
communications for the protection of privacy, however, and because
virtually all of the anonymous communications over computer networks
facilitated by EFF are as easily accessible in Georgia as anywhere
else in the world, EFF is fearful that our activities could be viewed
by a Georgia prosecutor as aiding and abetting violations of the
statute. Similarly, EFF is concerned on behalf of our members that
those members who communicate over computer networks using pseudonyms
or handles could be violating this criminal statute. EFF, both on our
own behalf and on behalf of our members, therefore fears prosecution
or other enforcement in Georgia under the statute, and seeks guidance
from the Court as to the effect and scope of this vague law. Although
EFF is concerned about the risk of prosecution, EFF views any such
restriction on our activities in furtherance of the public interest as
patently unconstitutional, and we fully intend to continue our
activities in support of online privacy and free speech despite the
passage of this law.
13. In addition to the many other services that EFF provides to our
members and to the online community in general is the online
publication through EFF's web site of an extensive archive of articles
and other information of interest to the online community. EFF's
archives include information on government and legislative activities,
legal issues and cases, academic freedom, censorship, free expression
and other civil liberties, the infor mation infrastructure and network
resources, intellectual property, privacy and encryption, net culture
and the online community, and social responsibility in the use of
online resources. Included within these archives are hundreds of
hyperlinks from the EFF web site to other information and resources
made available by others on the Internet on related topics. Many of
these links use the trade names of the companies, organizations,
government agencies or other entities to whom the link is provided. In
some cases, EFF uses the logos or other graphical symbols of the
organizations to whom we are linking on our web site. EFF does not
obtain prior permission from other web publishers before providing
links to their web sites in this manner. Given the sheer number of
links, EFF could not as a practical matter do so. EFF does not intend
to falsely imply that we have obtained such permission or that we are
formally affiliated with any of these other entities. EFF is aware
that individuals and companies that maintain their own web sites want
others to link to their sites as a matter of course. EFF is concerned
that its use of these trade names and images could violate the Act and
subject EFF or our members to criminal prosecution, when it is the
Act, not our actions, that is in defiance of the customary usage and
spirit of the Internet.
COMPUTER NETWORKS AFFECTED BY THE RESTRICTIONS OF O.C.G.A. 16- 9-93.1
The Global Internet
14. The largest computer network in the world is the Internet. It
links a large number of smaller networks set up by universities,
industry, nonprofit organizations, governments, and individuals. While
estimates can only be approximations due to rapid growth, the Internet
is believed to connect at least 59,000 computer networks, 2.2 million
computers, 159 countries, and 40 million users. By some estimates,
there will be as many as 200 million Internet users by the year 1999.
15. No one owns the Internet. It is a decentralized global medium of
communication and expression in which governments, universities,
institutions, corporations, and millions of ordinary people can
communicate with each other, express opinions, share ideas, educate
themselves, and seek, exchange or publish information on every
imaginable topic either to specific recipients or to the entire world
almost instantaneously and at minimal cost.
16. Virtually anyone can now use the Internet to communicate with
other online users. Anyone with a personal computer, modem, and
telephone line can obtain access to the Internet through an Internet
Service Provider ("ISP"), usually for a fee. Many businesses,
universities, and other institutions have computer networks that are
directly connected to the Internet and give their employees, faculty,
students, etc., free or low-cost Internet access accounts. For those
without a computer or access through work or school, many communities
have establrnet to communicate with other online users. Anyone with a
personal computer, modem, and telephone line can obtain access to the
Internet through an Internet Service Provider ("ISP"), usually for a
fee. Many businesses, universities, and other institutions have
computer net works that are directly connected to the Internet and
give their employees, faculty, students, etc., free or low-cost
Internet access accounts. For those without a computer or access
through work or school, many communities have establternet can travel
any number of different paths to get from its origin to its
destination. Persons transmitting information over this international
computer network have no control over the route their messages take.
Any data transmitted over the Internet could potentially travel
through the wires or airspace of Georgia.
18. There are hundreds of thousands of Internet users in the State of
Georgia, all of whom can communicate with or receive information from
any other user on the network anywhere in the world.
Commercial Online Services
19. In addition to the global Internet, communications over the large
national computer networks known as "commercial online services,"
including Prodigy, America Online and CompuServe, are also affected by
the Act.
20. These services enable their customers to communicate with other
customers, access the Internet, and access other proprietary
information and services available only to subscribers. There are more
than 12 million subscribers to major commercial online services in the
United States and overseas; each of these services have customers in
Georgia, who use the service to communicate with others throughout the
United States (and in some cases, the world).
Local Bulletin Board Services ("BBSs")
21. The Act also affects communications over thousands of local
dial-in computer services known as Bulletin Board Systems, or "BBSs."
With a relatively small investment, anyone with a phone line,
computer, modem, and proper software can establish a BBS to allow
friends, neighbors, customers, or members of the general public to
dial in and communicate with each other on topics of common interest.
There are several hundred such BBSs in Georgia, operated by
individuals, nonprofit organizations, advocacy groups, and businesses.
In addition, there are thousands of additional local BBSs in other
states, which can be reached from Georgia over long distance telephone
lines or through a network of BBS systems, which allows BBS
subscribers to communicate with subscribers to other BBSs in Georgia
and throughout the country.
THE NATURE OF COMMUNICATION OVER COMPUTER NETWORKS AFFECTED BY THE ACT
22. Computer users communicate with each other over the com puter
networks described above in many different ways. The content of all of
the following types of communications are restricted by the broad
language of the Act.
E-Mail
23. E-mail is the basic method of communication over computer
networks. It allows one user to send a message to any other user or
users on the network.
24. Because mass mailings via e-mail are relatively easy and
inexpensive, e-mail enables any user to publish and distribute
information on any topic simply by compiling a mailing list of online
users and sending the newsletter to everyone.
Discussion & Chat Groups
25. One of the most popular forms of communication over com puter
networks are "discussion groups." Discussion groups allow users of
computer networks to post messages onto a public computerized bulletin
board or to an automated electronic mailing list of subscribers, and
to read and respond to messages posted by others participating in the
discussion group. Discussion groups have been organized on many
different computer networks and on virtually every topic imaginable.
26. On the Internet, the bulletin board discussion groups are known as
the "USENET" newsgroups and are arranged by subject mat ter. There are
currently USENET newsgroups on more than 15,000 different subjects,
and over 100,000 new messages are posted to these groups each day. In
addition, there are many thousands more Internet discussion groups
organized through automated mail ing lists to subscribers. There are
still thousands more organized on the various commercial online
services and on local BBSs. All or virtually all of these discussion
groups are accessible by computer users in Georgia.
27. Similar to discussion groups are "chat groups," which allow users
to engage in real time conversations with each other by typing
messages and reading the messages typed by others participating in the
"chat." Chat groups also occur over the Internet, commercial online
services, and local BBSs. These groups are often set up by particular
organizations or online services, but any individual user can form an
online "chat." Some chat groups are organized for social
entertainment, and others are organized by a particular sponsor on
particular topics to provide a specific forum for discussion of issues
or ideas.
28. Online discussion and chat groups create an entirely new public
forum -- analogous to the village green -- in which individuals can
associate and communicate with others who have common interests and
can engage in discussion or debate on every imaginable topic.
Publication and Access to Information: The World Wide Web
29. A third major category of communication on computer net works
involves the publication and retrieval of information. Computer
networks, and especially the Internet, give individuals of ordinary
means a remarkable new power to publish ideas, opinions, poetry,
stories, images, video, and sound to the world. This information can
then be retrieved by anyone in the world who has access to the
network.
30. The World Wide Web is the most popular way to publish and retrieve
information on the Internet. Anyone with access to the Internet and
proper software can publish "web pages," which may contain text,
images, sound and even video. The web is comprised of millions of
separate "web sites" that provide content provided by a particular
person or organization, and each web site may include one or more
different web pages published by the author of the site. Any Internet
user anywhere in the world can view the web pages published by others,
read their text, look at their images and video, and listen to their
sounds.
31. The web was created to serve as the platform for a global, online
store of knowledge, containing information from a diversity of
sources, and accessible to Internet users around the world. Though
information on the web is contained in individual computers, the fact
that each of these computers is connected to the Internet through web
protocols allows all of the information to become part of a single
body of knowledge. It is currently the most advanced information
system on the Internet.
The Importance of Links on the World Wide Web:
32. The web also provides web authors with the unique ability to
"link" different web pages on the Internet together. These "links" can
be text or images in a web page that, when selected by the reader,
automatically transfer the reader to a different location on the
Internet. For example, a particular link might transport the reader to
a different part of the same web page or to an entirely different web
page stored in an entirely different computer anywhere in the world.
33. The author of any web page can create a "link" that points to any
other web page published on the Internet, without having to contact
the creator of the document. In fact, Internet custom and usage does
not require a web author to contact a document creator, and those who
create documents expect and hope to have their pages linked to. Many
of the plaintiffs publish such links in their web pages.
34. Many pages on the web are published by corporations or
organizations that operate under trade names. Links to those web pages
are routinely identified by the trade name of the organization or some
other logo or trademark that readily identifies the company or
organization to whose web page the link is directed.
35. "Search engines" and "directories" on the web are ser vices that
collect and organize millions of different links to web pages. "Search
engines," such as Yahoo, Alta Vista, and Webcrawler, allow users to
search the entire World Wide Web for particular words or phrases. The
search engine then provides a list of web pages that contain the
search term and allows the user to "link" to the web page of their
choice. "Directories" are large databases of web sites arranged
according to subject matter, similar to an online card catalog.
Directories provide "links" to relevant web sites on particular
subjects.
36. Without these search engines and directories, it would much more
difficult for Internet users to locate and retrieve information of
interest on the web. Thus, these search engines and directories
provide an essential service to all Internet users. They routinely
provide many "links" to web pages using the trade names or logos of
the companies or organizations to whom they are linking.
37. This critical linking feature is the defining character istic of
the web. The web is comprised of all web pages in the world, stored in
millions of different computers around the globe. The web is the
interlocking system of links created by individual users in each
individual page. Linking is encouraged on the web, because it ties
different web pages on related topics together into a coherent system,
even though the individual web pages themselves might be stored in
different computers in different parts of the world.
38. "Cyberspace" refers to the combination of all of the online
communications systems described above.
WHY PEOPLE COMMUNICATE ANONYMOUSLY IN CYBERSPACE
39. For many of the same reasons that people have histori cally
communicated anonymously through other media like print and the
telephone, online users frequently communicate anonymously or
pseudonymously in cyberspace.
40. Anonymity allows online users to voice unpopular ideas without
fear of retaliation. Citizens can engage in political speech without
identifying themselves to the party in power. Victims of crime or
disease can request help and advice without stigma.
41. Anonymity also eliminates the potential for discrimina tion and
harassment according to factors like gender and ethnicity. Many women
communicate online under gender-neutral pseudonyms to avoid harassing
e-mail. This practice is similar to women who list their telephone
numbers under their first initials in order to avoid harassing calls.
Similarly, online users may wish to use a pseudonym in order to avoid
discrimination or harassment based on names associated with particular
ethnic groups.
42. Anonymity also helps online users maintain their privacy. People
communicating about unpopular or sensitive issues might suffer
unwanted invasions of privacy, both online and offline, if others had
access to their real identity. Anonymity also allows famous people to
communicate online as "average people," without fear of a privacy
invasion.
43. In some cases, anonymity is a necessary security measure. The
personal safety of human rights dissidents, domestic abuse victims,
and whistle-blowers would be compromised if they could not communicate
anonymously.
44. Anonymity also assists users in preventing the collection and
potential misuse by third parties of personal information about them.
Online communications can be easily tracked, downloaded and stored by
anyone; anonymity can prevent unauthorized third parties from tying
that information to a particular person.
45. In addition to the advantages of speaking anonymously in
cyberspace, online users have many reasons for wanting to access
online information anonymously. Many users would be inhibited from
accessing controversial, embarrassing, or sensitive information if
they first had to reveal their identity. Political information, safe
sex information, and information on stigmatizing diseases are just a
few examples of content that some users might wish to access
anonymously. In addition, because most web sites collect information
about visitors, many online users fear that using their real
identities would threaten their privacy whenever they access the web.
HOW INDIVIDUALS COMMUNICATE ANONYMOUSLY IN CYBERSPACE
46. As a general rule, communications over computer networks typically
include identifying information, such as the sender's return address
and message routing information. This default identification of the
speaker differentiates online communication from communication by
print and telephone.
47. Online technology, however, provides users with a variety of ways
to communicate over computer networks without revealing their
identity.
Online Communications Using Pseudonyms or "Screen Names"
48. Many Internet Service Providers, commercial online ser vices, and
local BBSs allow users to set up pseudonymous accounts, permitting the
user to communicate online using a "screen name," "user name," or
"handle" that is a pen name rather than the real name of the account
holder. When a user sends mail, publishes newsletters, or participates
in discussions or chat groups using this screen name, the message sent
is identified as coming from the screen name adopted by the sender.
49. Many service providers allow their users to set up multi ple
"screen names" or "user names." This feature allows users to use
different names for different purposes. For example, a user might use
her real name as a "screen name" when communicating by e-mail with
someone she knows personally, but use a pen name as a "screen name"
when communicating with strangers.
50. Pseudonymous accounts allow users to have a consistent identity in
cyberspace without having to reveal their true identity to the people
with whom they are communicating.
Anonymous Internet Access Accounts:
51. The use of "screen names" alone, however, does not pro vide
complete anonymity to the user, because the user's service provider
knows the true identity of the subscriber. To provide additional
privacy, some Internet Service Providers and local BBS operators offer
anonymous access accounts. That is, they do not require any
identification in order to set up an account for communicating over
the network. These accounts provide additional privacy and security to
the user because even the service provider has no way to identify the
true identity of the user.
Anonymous and Pseudonymous Remailers:
52. In addition to the use of screen names or anonymous ac cess
accounts, there are special services that allow online users who
normally communicate online under their real names to send particular
messages anonymously or pseudonymously over the Internet. These
services are known as pseudonymous and anonymous remailers, and they
consist of software programs that run on computers connected to the
Internet. When an online user sends e-mail to the remailer address,
the remailer strips the identifying information from the message and
then forwards the mail to its destination. The recipient receives mail
that has no evi dence indicating its point of origin. Remailers can be
used to send individual e-mail and to post messages to mailing lists
or USENET newsgroups.
53. "Pseudonymous remailers" are remailers that set up ac counts for
repeated use. The operator of a pseudonymous remailer knows the
account holder's real e-mail address but provides the account holder
with a secret numeric identifier that is used whenever the account
holder sends a message through the remailer. Other anonymous users,
each with their own secret numeric identifier, can then reply to the
anonymous message. This allows users to create a double-blind
situation where two or more users can have an ongoing exchange without
ever knowing the identity of the other users.
54. Anonymous remailers do not require setting up any account with the
service. Any Internet user can use these services by sending an e-mail
message to the remailer, which will forward it anonymously to its
final destination.
55. Currently, there are over 20 public remailers that any online user
may use free of charge.
56. To prevent abuse of such remailers, there are programs available
to the public, known as "kill files" and "bozo filters," that provide
online users with the means to screen out anonymous messages if they
desire. These programs reduce the likelihood of harm from misuse of
anonymous remailers.
Online Publishing Under Pseudonyms or Anonymously
57. As in the case of e-mail, many publishers in the online medium
choose to do so using pen names.
58. For additional anonymity, some Internet Service Providers also
allow persons and organizations to set up and maintain web pages
anonymously.
Anonymous Access Services:
59. Conversely, many online users seek to receive information
anonymously over the Internet. As a general rule, however, obtaining
information anonymously over the Internet is difficult because every
time an online user visits a web site, she leaves a digital "calling
card" that reveals the address of the computer from which she is
linked to the Internet, the address of the web site she last visited,
the kind of computer she is using, and other details. Most web sites
keep logs with this information on all of the visitors that access
their sites.
60. Many online users fear that their privacy will be invaded if data
collected by web sites is misused, particularly where the user has no
knowledge of the amount of data being collected by various web site
operators.
61. To assist online users in protecting their privacy, there are now
services that allow online users to access information anonymously on
the Internet. These services, called "anonymizers," serve as middlemen
between the user and the par ticular pages he wants to retrieve. An
anonymizer strips all references to the user's e-mail address,
computer type, and previous page visited before downloading the web
page to the user. If the user follows a link from a page accessed
through the anonymizer, the linked page is also accessed anonymously.
I, Shari Steele, declare under penalty of perjury that the foregoing
is true and correct.
Executed this ______ day of September, 1996.
________________________________
SHARI STEELE
STAFF COUNSEL
ELECTRONIC FRONTIER FOUNDATION