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                                 EFF AFFIDAVIT
   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. )
   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
   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
   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
   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.
   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.
   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.
   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
   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
   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
   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.
   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
   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
   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.
   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
   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
   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
   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.