EFF Affidavit







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 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.


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 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.


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.


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.