EFGA Affidavit

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. )

County of DeKalb )

State of Georgia )

1. My name is Robert A. Costner. I am the Director of Electronic Frontiers Georgia (EFGA), a Georgia-based nonpartisan nonprofit civil liberties organization. EFGA was founded in June of 1995 and was incorporated in 1996 as a nonprofit corporation under Georgia law. The facts set forth in this declaration are based upon my personal knowledge and upon the business records of EFGA. I submit this affidavit on behalf of EFGA.

2. There are currently more than 250 members of EFGA, most of whom are residents of the State of Georgia. EFGA is not affiliated with the Electronic Frontier Foundation.

3. EFGA's purpose is to ensure that the principles embodied in the Constitution and Bill of Rights are protected as new communications technologies emerge. EFGA works to convince lawmakers that measures which support broader public access to information should be enacted into law. In order to foster community and openness, EFGA works with local organizations that support online communications issues.

4. EFGA is particularly concerned with raising public awareness among the citizens and elected representatives of Georgia regarding issues relating to freedom, privacy and access in the online world. Most prominent among the issues of concern to us are freedom of speech and free expression in online media, and the protection of privacy for responsible online communications.

5. Within EFGA, there are several informal "working groups," made up of EFGA members with a particular interest in specific issues of concern to our group. Currently, for example, there are special working groups on the issues of Internet education, cryptography (to facilitate private and secure online communication), digital signatures (technology that allows a user to send e-mail or other communications across computer networks with a code that authenticates the messages and assures the recipient that it did in fact originate from the purported sender), and telecommunications issues. There is also a working group on House Bill 1630, now enacted as O.C.G.A. 16-9-93.1, the Georgia statute at issue in this case restricting online communications.

6. In addition, EFGA provides an online forum for discussion and debate by all members of EFGA on issues of interest to them. EFGA provides this online forum by maintaining a mailing list discussion group, distributed via e-mail over the Internet to all members of EFGA. Any member may contribute to the discussion group by sending an e-mail message to the mailist, which will then be distributed to all other subscribers to the mail listing. Several of the contributors to discussion on this mailing list use online pseudonyms or screen names when they post their messages.

7. In addition to the mailist discussion group, EFGA publishes a periodic online newsletter, "EFGA On-Line". This newsletter is also distributed by e-mail to all members of EFGA. Among other things, it includes news updates and advisories on the activities of EFGA and other topics of interest to our members. EFGA On-Line is also publicly posted to the local Atlanta and Georgia regional USENET discussion groups, as well as other areas.

8. EFGA also publishes a web site on the Internet, which currently can be accessed on the Internet at the address of http://www.efga.org/. This web site is updated frequently and are located on computers in Georgia.

9. EFGA uses its web site as a primary means of disseminating information to the general online public on issues of concern to EFGA and as a platform for public discussion of Georgia online civil liberties issues, such as free speech, access, and online privacy. These web pages contain news and commentary on issues of public concern, and the news and commentary in the web pages often uses the trade names, logos, and other symbols and graphics of others to refer to the companies, organizations or governmental officials or agencies discussed on the page. We believe the use of these graphical images and symbols makes our presentation of news and commentary on these issues more effective and more compelling communication to members of the public who view our web page than it would be if the web page used text alone.

10. For example, the web page currently contains an extensive news and commentary section about a recent proposal by BellSouth requesting a substantial increase in tariff rates charged in Georgia for ISDN lines, a special data telecommunications line that allows high speed modem access to the Internet and other computer networks. This news advisory uses BellSouth's trade name repeatedly to refer to the company. In addition, it provides users viewing the page with the option of contacting BellSouth immediately to comment by e-mail on the proposed tariff increase by using a graphical image of the BellSouth logo to provide an automatic link to a web page maintained by BellSouth in which BellSouth requests public feedback by e-mail. In other words, by clicking the BellSouth logo on our page, a computer user will be automatically transported to the BellSouth public feedback web page and can immediately send an e-mail to BellSouth from that web page to express an opinion on the proposed tariff increase.

11. As a second example, EFGA's web page includes an extensive news and commentary section relating to the Act being challenged in this lawsuit. Among other information, this portion of our web page includes a section that publishes quotes of public commentary on the Act by several Georgia elected officials relating to the Act. This section of the web page publishing commentary by Georgia elected officials includes a graphical image of the Georgia State Seal in its heading.

12. EFGA has not requested permission to use the trade names, logos, symbols, or seals that it uses on its web page to refer to these other companies, organizations and governmental officials or agencies. EFGA does not intend to falsely imply that it has obtained such permission or that it is formally affiliated with any of these other entities, but we have no idea whether our use of these names, logos and other images to refer to companies, organizations and governmental officials and agencies that we refer to in our commentary might "imply" that we had obtained permission when we did not. EFGA is therefore fearful that its use of these trade names, logos and other images in its news advisories and commentary on issues of public concern could violate the Act and subject EFGA or its members to criminal prosecution.

13. EFGA also encourages and facilitates responsible anonymous communications over computer networks. EFGA encourages online discussions and chats using "handles," i.e., assumed names, rather than the actual name of the user, because the ability to communicate over online networks in this way allows users to participate in chats or discussions groups and receive information about topics of interest 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. To further facilitate anonymous communications online, EFGA currently has plans to make an anonymous remailing service available to the public over the Internet from EFGA's new Internet domain site (which is currently under construction).

14. All of EFGA's members both receive and transmit information over various kinds of computer networks, including the Internet, local BBSs, commercial online services, and local area networks. EFGA members communicate over these computer networks in many different ways, including browsing and publishing on the World Wide Web; participating in online mailing lists, discussion groups, and chat rooms; and by private e-mail. Many of EFGA's members use handles or pseudonyms when communicating over computer networks, especially when participating in chat or discussion groups on local BBS systems in Georgia, but also when communicating over commercial online services such as America Online or CompuServe, and when posting to USENET or mailing list discussion groups, participating in chat groups or sending e-mail on the Internet. For example, EFGA's members use handles including "decius," "pooh," and "soth." In addition, some of EFGA's members communicate over the Internet using anonymous remailers to protect their privacy or to participate in discussion on USENET or chat groups without revealing their identity.

15. I have reviewed the language of O.C.G.A. 16-9-93.1, and I cannot determine from its language whether communication over computer networks using a pseudonym or assumed name to protect the privacy of the user constitutes the use of a name that "falsely identifies" the user for the purposes of the criminal sanctions imposed by this statute. Because EFGA actively 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 originate in Georgia, EFGA is concerned on behalf of its members that those members who communicate over computer networks using pseudonyms or handles could be violating this criminal statute and subjecting themselves to the risk of prosecution. EFGA is fearful that its activities could be viewed by a Georgia prosecutor as aiding and abetting violations of the statute by assisting its members and others in communicating over computer networks using pseudonyms. In particular, EFGA is concerned that its plans to begin operating an anonymous remailer service in Georgia to assist its members and members of the general public to communicate anonymously over the Internet may also subject it or its members to prosecution under the Act.

16. The EFGA, both on its own behalf and on behalf of its members, therefore fears prosecution or other enforcement under the statute, and seeks guidance from the Court as to the effect and scope of this vague law. In addition, EFGA is concerned that, while the law provides specific exceptions for telecommunications companies and Internet access providers who simply transmit data for the customers, the law provides no similar exception for mailing list adminstrators, BBS system operators, discussion group moderators, chat room providers, and similar network administrators with the same protection.

17. Although EFGA is concerned about the risk of prosecution, EFGA believes that its efforts to further speech and privacy rights are in the public interest, and its members believe that their right to communicate privately is constitutionally protected. Thus, EFGA intends to continue its activities in support of online privacy and free speech despite the passage of this law, and its members intend to continue to use pseudonyms for responsible anonymous communications over computer networks in Georgia.

I, Robert Costner, declare under penalty of perjury that the foregoing is true and correct.

Executed this ______ day of ____________, 1996.

________________________________

ROBERT COSTNER

DIRECTOR

ELECTRONIC FRONTIERS GEORGIA